EN BANC practice of law.
4 Second, the Office of the President and the Secretary of
G.R. No. 176278 June 25, 2010
ALAN F. PAGUIA, Petitioner,
vs.
OFFICE OF THE PRESIDENT, SECRETARY OF FOREIGN AFFAIRS,
and HON. HILARIO DAVIDE, JR. in his capacity as Permanent
Representative of the Philippines to the United
Nations, Respondents.
RESOLUTION
CARPIO, J.:
At issue is the power of Congress to limit the President’s prerogative to
nominate ambassadors by legislating age qualifications despite the
constitutional rule limiting Congress’ role in the appointment of
ambassadors to the Commission on Appointments’ confirmation of
nominees.1 However, for lack of a case or controversy grounded on
petitioner’s lack of capacity to sue and mootness,2 we dismiss the petition
without reaching the merits, deferring for another day the resolution of the
question raised, novel and fundamental it may be.
Petitioner Alan F. Paguia (petitioner), as citizen and taxpayer, filed this
original action for the writ of certiorari to invalidate President Gloria
Macapagal-Arroyo’s nomination of respondent former Chief Justice
Hilario G. Davide, Jr. (respondent Davide) as Permanent Representative
to the United Nations (UN) for violation of Section 23 of Republic Act No.
7157 (RA 7157), the Philippine Foreign Service Act of 1991. Petitioner
argues that respondent Davide’s age at that time of his nomination in
March 2006, 70, disqualifies him from holding his post. Petitioner grounds
his argument on Section 23 of RA 7157 pegging the mandatory
retirement age of all officers and employees of the Department of Foreign
Affairs (DFA) at 65.3 Petitioner theorizes that Section 23 imposes an
absolute rule for all DFA employees, career or non-career; thus,
respondent Davide’s entry into the DFA ranks discriminates against the
rest of the DFA officials and employees.
In their separate Comments, respondent Davide, the Office of the
President, and the Secretary of Foreign Affairs (respondents) raise
threshold issues against the petition. First, they question petitioner’s
standing to bring this suit because of his indefinite suspension from the
Foreign Affairs (public respondents) argue that neither petitioner’s
citizenship nor his taxpayer status vests him with standing to question
respondent Davide’s appointment because petitioner remains without
personal and substantial interest in the outcome of a suit which does not
involve the taxing power of the state or the illegal disbursement of public
funds. Third, public respondents question the propriety of this petition,
contending that this suit is in truth a petition for quo warranto which can
only be filed by a contender for the office in question.
On the eligibility of respondent Davide, respondents counter that Section
23’s mandated retirement age applies only to career diplomats, excluding
from its ambit non-career appointees such as respondent Davide.
The petition presents no case or controversy for petitioner’s lack of
capacity to sue and mootness.
First. Petitioner’s citizenship and taxpayer status do not clothe him with
standing to bring this suit. We have granted access to citizen’s suits on
the narrowest of ground: when they raise issues of "transcendental"
importance calling for urgent resolution. 5 Three factors are relevant in our
determination to allow third party suits so we can reach and resolve the
merits of the crucial issues raised – the character of funds or assets
involved in the controversy, a clear disregard of constitutional or statutory
prohibition, and the lack of any other party with a more direct and specific
interest to bring the suit.6 None of petitioner’s allegations comes close to
any of these parameters. Indeed, implicit in a petition seeking a judicial
interpretation of a statutory provision on the retirement of government
personnel occasioned by its seemingly ambiguous crafting is the
admission that a "clear disregard of constitutional or statutory prohibition"
is absent. Further, the DFA is not devoid of personnel with "more direct
and specific interest to bring the suit." Career ambassadors forced to
leave the service at the mandated retirement age unquestionably hold
interest far more substantial and personal than petitioner’s generalized
interest as a citizen in ensuring enforcement of the law.
1avvphi1
The same conclusion holds true for petitioner’s invocation of his taxpayer
status. Taxpayers’ contributions to the state’s coffers entitle them to
question appropriations for expenditures which are claimed to be
unconstitutional or illegal.7 However, the salaries and benefits respondent
Davide received commensurate to his diplomatic rank are fixed by law
and other executive issuances, the funding for which was included in the
appropriations for the DFA’s total expenditures contained in the annual
budgets Congress passed since respondent Davide’s nomination. Having
1
assumed office under color of authority (appointment), respondent
Davide is at least a de facto officer entitled to draw salary, 8 negating
petitioner’s claim of "illegal expenditure of scarce public funds." 9
Second. An incapacity to bring legal actions peculiar to petitioner also
obtains. Petitioner’s suspension from the practice of law bars him from
performing "any activity, in or out of court, which requires the application
of law, legal procedure, knowledge, training and experience." 10 Certainly,
preparing a petition raising carefully crafted arguments on equal
protection grounds and employing highly legalistic rules of statutory
construction to parse Section 23 of RA 7157 falls within the proscribed
conduct.
Third. A supervening event has rendered this case academic and the
relief prayed for moot. Respondent Davide resigned his post at the UN on
1 April 2010.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
EN BANC
BAR MATTER No. 914 October 1, 1999
RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,
vs.
VICENTE D. CHING, applicant.
RESOLUTION
KAPUNAN, J.:
Can a legitimate child born under the 1935 Constitution of a Filipino
mother and an alien father validly elect Philippine citizenship fourteen
(14) years after he has reached the age of majority? This is the question
sought to be resolved in the present case involving the application for
admission to the Philippine Bar of Vicente D. Ching.
The facts of this case are as follows:
Vicente D. Ching, the legitimate son of the spouses Tat Ching, a Chinese
citizen, and Prescila A. Dulay, a Filipino, was born in Francia West,
Tubao, La Union on 11 April 1964. Since his birth, Ching has resided in
the Philippines.
On 17 July 1998, Ching, after having completed a Bachelor of Laws
course at the St. Louis University in Baguio City, filed an application to
take the 1998 Bar Examinations. In a Resolution of this Court, dated 1
September 1998, he was allowed to take the Bar Examinations, subject
to the condition that he must submit to the Court proof of his Philippine
citizenship.
In compliance with the above resolution, Ching submitted on 18
November 1998, the following documents:
1. Certification, dated 9 June 1986, issued by the Board of
Accountancy of the Professional Regulations Commission
showing that Ching is a certified public accountant;
2. Voter Certification, dated 14 June 1997, issued by
Elizabeth B. Cerezo, Election Officer of the Commission
on Elections (COMELEC) in Tubao La Union showing that
Ching is a registered voter of the said place; and
3. Certification, dated 12 October 1998, also issued by
Elizabeth B. Cerezo, showing that Ching was elected as a
member of the Sangguniang Bayan of Tubao, La Union
during the 12 May 1992 synchronized elections.
On 5 April 1999, the results of the 1998 Bar Examinations were released
and Ching was one of the successful Bar examinees. The oath-taking of
the successful Bar examinees was scheduled on 5 May 1999. However,
because of the questionable status of Ching's citizenship, he was not
allowed to take his oath. Pursuant to the resolution of this Court, dated 20
April 1999, he was required to submit further proof of his citizenship. In
the same resolution, the Office of the Solicitor General (OSG) was
required to file a comment on Ching's petition for admission to the bar
and on the documents evidencing his Philippine citizenship.
2
The OSG filed its comment on 8 July 1999, stating that Ching, being the
"legitimate child of a Chinese father and a Filipino mother born under the
1935 Constitution was a Chinese citizen and continued to be so, unless
upon reaching the age of majority he elected Philippine citizenship" 1 in
strict compliance with the provisions of Commonwealth Act No. 625
entitled "An Act Providing for the Manner in which the Option to Elect
Philippine Citizenship shall be Declared by a Person Whose Mother is a
Filipino Citizen." The OSG adds that "(w)hat he acquired at best was only
an inchoate Philippine citizenship which he could perfect by election upon
reaching the age of majority." 2 In this regard, the OSG clarifies that "two
(2) conditions must concur in order that the election of Philippine
citizenship may be effective, namely: (a) the mother of the person making
the election must be a citizen of the Philippines; and (b) said election
must be made upon reaching the age of majority." 3 The OSG then
explains the meaning of the phrase "upon reaching the age of majority:"
The clause "upon reaching the age of majority" has been
construed to mean a reasonable time after reaching the
age of majority which had been interpreted by the
Secretary of Justice to be three (3) years
(VELAYO, supra at p. 51 citing Op., Sec. of Justice No.
70, s. 1940, Feb. 27, 1940). Said period may be extended
under certain circumstances, as when a (sic) person
concerned has always considered himself a Filipino
(ibid., citing Op. Nos. 355 and 422, s. 1955; 3, 12, 46, 86
and 97, s. 1953). But in Cuenco, it was held that an
election done after over seven (7) years was not made
within a reasonable time.
In conclusion, the OSG points out that Ching has not formally elected
Philippine citizenship and, if ever he does, it would already be beyond the
"reasonable time" allowed by present jurisprudence. However, due to the
peculiar circumstances surrounding Ching's case, the OSG recommends
the relaxation of the standing rule on the construction of the phrase
"reasonable period" and the allowance of Ching to elect Philippine
citizenship in accordance with C.A. No. 625 prior to taking his oath as a
member of the Philippine Bar.
On 27 July 1999, Ching filed a Manifestation, attaching therewith his
Affidavit of Election of Philippine Citizenship and his Oath of Allegiance,
both dated 15 July 1999. In his Manifestation, Ching states:
1. I have always considered myself as a Filipino;
2. I was registered as a Filipino and consistently declared myself as one
in my school records and other official documents;
3. I am practicing a profession (Certified Public Accountant) reserved for
Filipino citizens;
4. I participated in electoral process[es] since the time I was eligible to
vote;
5. I had served the people of Tubao, La Union as a member of the
Sangguniang Bayan from 1992 to 1995;
6. I elected Philippine citizenship on July 15, 1999 in accordance with
Commonwealth Act No. 625;
7. My election was expressed in a statement signed and sworn to by me
before a notary public;
8. I accompanied my election of Philippine citizenship with the oath of
allegiance to the Constitution and the Government of the Philippines;
9. I filed my election of Philippine citizenship and my oath of allegiance to
(sic) the Civil Registrar of Tubao La Union, and
10. I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.
Since Ching has already elected Philippine citizenship on 15 July 1999,
the question raised is whether he has elected Philippine citizenship within
a "reasonable time." In the affirmative, whether his citizenship by election
retroacted to the time he took the bar examination.
When Ching was born in 1964, the governing charter was the 1935
Constitution. Under Article IV, Section 1(3) of the 1935 Constitution, the
citizenship of a legitimate child born of a Filipino mother and an alien
father followed the citizenship of the father, unless, upon reaching the
age of majority, the child elected Philippine citizenship. 4 This right to
elect Philippine citizenship was recognized in the 1973 Constitution when
it provided that "(t)hose who elect Philippine citizenship pursuant to the
provisions of the Constitution of nineteen hundred and thirty-five" are
citizens of the Philippines. 5 Likewise, this recognition by the 1973
Constitution was carried over to the 1987 Constitution which states that
"(t)hose born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority" are Philippine
citizens. 6 It should be noted, however, that the 1973 and 1987
Constitutional provisions on the election of Philippine citizenship should
not be understood as having a curative effect on any irregularity in the
acquisition of citizenship for those covered by the 1935 Constitution. 7 If
the citizenship of a person was subject to challenge under the old charter,
it remains subject to challenge under the new charter even if the judicial
challenge had not been commenced before the effectivity of the new
Constitution. 8
3
C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of
the 1935 Constitution, prescribes the procedure that should be followed
in order to make a valid election of Philippine citizenship. Under Section 1
thereof, legitimate children born of Filipino mothers may elect Philippine
citizenship by expressing such intention "in a statement to be signed and
sworn to by the party concerned before any officer authorized to
administer oaths, and shall be filed with the nearest civil registry. The
said party shall accompany the aforesaid statement with the oath of
allegiance to the Constitution and the Government of the Philippines."
However, the 1935 Constitution and C.A. No. 625 did not prescribe a time
period within which the election of Philippine citizenship should be made.
The 1935 Charter only provides that the election should be made "upon
reaching the age of majority." The age of majority then commenced upon
reaching twenty-one (21) years. 9 In the opinions of the Secretary of
Justice on cases involving the validity of election of Philippine citizenship,
this dilemma was resolved by basing the time period on the decisions of
this Court prior to the effectivity of the 1935 Constitution. In these
decisions, the proper period for electing Philippine citizenship was, in
turn, based on the pronouncements of the Department of State of the
United States Government to the effect that the election should be made
within a "reasonable time" after attaining the age of majority. 10 The
phrase "reasonable time" has been interpreted to mean that the election
should be made within three (3) years from reaching the age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that
the three (3) year period is not an inflexible rule. We said:
It is true that this clause has been construed to mean a
reasonable period after reaching the age of majority, and
that the Secretary of Justice has ruled that three (3) years
is the reasonable time to elect Philippine citizenship under
the constitutional provision adverted to above, which
period may be extended under certain circumstances, as
when the person concerned has always considered
himself a Filipino. 13
However, we cautioned in Cuenco that the extension of the option to
elect Philippine citizenship is not indefinite:
Regardless of the foregoing, petitioner was born on
February 16, 1923. He became of age on February 16,
1944. His election of citizenship was made on May 15,
1951, when he was over twenty-eight (28) years of age,
or over seven (7) years after he had reached the age of
majority. It is clear that said election has not been made
"upon reaching the age of majority." 14
In the present case, Ching, having been born on 11 April 1964, was
already thirty-five (35) years old when he complied with the requirements
of C.A. No. 625 on 15 June 1999, or over fourteen (14) years after he had
reached the age of majority. Based on the interpretation of the phrase
"upon reaching the age of majority," Ching's election was clearly beyond,
by any reasonable yardstick, the allowable period within which to
exercise the privilege. It should be stated, in this connection, that the
special circumstances invoked by Ching, i.e., his continuous and
uninterrupted stay in the Philippines and his being a certified public
accountant, a registered voter and a former elected public official, cannot
vest in him Philippine citizenship as the law specifically lays down the
requirements for acquisition of Philippine citizenship by election.
Definitely, the so-called special circumstances cannot constitute what
Ching erroneously labels as informal election of citizenship. Ching cannot
find a refuge in the case of In re: Florencio Mallare, 15 the pertinent
portion of which reads:
And even assuming arguendo that Ana Mallare were (sic)
legally married to an alien, Esteban's exercise of the right
of suffrage when he came of age, constitutes a positive
act of election of Philippine citizenship. It has been
established that Esteban Mallare was a registered voter
as of April 14, 1928, and that as early as 1925 (when he
was about 22 years old), Esteban was already
participating in the elections and campaigning for certain
candidate[s]. These acts are sufficient to show his
preference for Philippine citizenship. 16
Ching's reliance on Mallare is misplaced. The facts and circumstances
obtaining therein are very different from those in the present case, thus,
negating its applicability. First, Esteban Mallare was born before the
effectivity of the 1935 Constitution and the enactment of C.A. No. 625.
Hence, the requirements and procedures prescribed under the 1935
Constitution and C.A. No. 625 for electing Philippine citizenship would not
be applicable to him. Second, the ruling in Mallare was an obiter since, as
correctly pointed out by the OSG, it was not necessary for Esteban
Mallare to elect Philippine citizenship because he was already a Filipino,
he being a natural child of a Filipino mother. In this regard, the Court
stated:
4
 Esteban Mallare, natural child of Ana Mallare, a Filipina, is
therefore himself a Filipino, and no other act would be necessary
to confer on him all the rights and privileges attached to Philippine
citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos Co vs.
Government of the Philippine Islands, 42 Phil. 543, Serra vs.
Republic, L-4223, May 12, 1952, Sy Quimsuan vs. Republic, L-
4693, Feb. 16, 1953; Pitallano vs. Republic, L-5111, June 28,
1954). Neither could any act be taken on the erroneous belief that
he is a non-filipino divest him of the citizenship privileges to which
he is rightfully entitled. 17
The ruling in Mallare was reiterated and further elaborated in Co
vs. Electoral Tribunal of the House of Representatives, 18 where we held:
We have jurisprudence that defines "election" as both a formal
and an informal process.
In the case of In re: Florencio Mallare (59 SCRA 45 [1974]), the
Court held that the exercise of the right of suffrage and the
participation in election exercises constitute a positive act of
election of Philippine citizenship. In the exact pronouncement of
the Court, we held:
Esteban's exercise of the right of suffrage when
he came of age constitutes a positive act of
Philippine citizenship. (p. 52: emphasis supplied)
The private respondent did more than merely exercise his right of
suffrage. He has established his life here in the Philippines.
For those in the peculiar situation of the respondent who cannot
be excepted to have elected Philippine citizenship as they were
already citizens, we apply the In Re Mallare rule.
xxx xxx xxx
The filing of sworn statement or formal declaration is a
requirement for those who still have to elect citizenship. For those
already Filipinos when the time to elect came up, there are acts of
deliberate choice which cannot be less binding. Entering a
profession open only to Filipinos, serving in public office where
citizenship is a qualification, voting during election time, running
for public office, and other categorical acts of similar nature are
themselves formal manifestations for these persons.
An election of Philippine citizenship presupposes that the person
electing is an alien. Or his status is doubtful because he is a
national of two countries. There is no doubt in this case about Mr.
Ong's being a Filipino when he turned twenty-one (21).
We repeat that any election of Philippine citizenship on the part of
the private respondent would not only have been superfluous but
it would also have resulted in an absurdity. How can a Filipino
citizen elect Philippine citizenship? 19
The Court, like the OSG, is sympathetic with the plight of Ching.
However, even if we consider the special circumstances in the life of
Ching like his having lived in the Philippines all his life and his consistent
belief that he is a Filipino, controlling statutes and jurisprudence constrain
us to disagree with the recommendation of the OSG. Consequently, we
hold that Ching failed to validly elect Philippine citizenship. The span of
fourteen (14) years that lapsed from the time he reached the age of
majority until he finally expressed his intention to elect Philippine
citizenship is clearly way beyond the contemplation of the requirement of
electing "upon reaching the age of majority." Moreover, Ching has offered
no reason why he delayed his election of Philippine citizenship. The
prescribed procedure in electing Philippine citizenship is certainly not a
tedious and painstaking process. All that is required of the elector is to
execute an affidavit of election of Philippine citizenship and, thereafter,
file the same with the nearest civil registry. Ching's unreasonable and
unexplained delay in making his election cannot be simply glossed over.
Philippine citizenship can never be treated like a commodity that can be
claimed when needed and suppressed when convenient. 20 One who is
privileged to elect Philippine citizenship has only an inchoate right to such
citizenship. As such, he should avail of the right with fervor, enthusiasm
and promptitude. Sadly, in this case, Ching slept on his opportunity to
elect Philippine citizenship and, as a result. this golden privilege slipped
away from his grasp.
IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D.
Ching's application for admission to the Philippine Bar.
SO ORDERED.
5
 EN BANC
B.M. No. 712 March 19, 1997
RE: PETITION OF AL ARGOSINO TO TAKE THE LAWYERS OATH
RESOLUTION
PADILLA, J.:
Petitioner Al Caparros Argosino passed the bar examinations held in
1993. The Court however deferred his oath-taking due to his previous
conviction for Reckless Imprudence Resulting In Homicide.
The criminal case which resulted in petitioner's conviction, arose from the
death of a neophyte during fraternity initiation rites sometime in
September 1991. Petitioner and seven (7) other accused initially entered
pleas of not guilty to homicide charges. The eight (8) accused later
withdrew their initial pleas and upon re-arraignment all pleaded guilty to
reckless imprudence resulting in homicide.
On the basis of such pleas, the trial court rendered judgment dated 11
February 1993 imposing on each of the accused a sentence of
imprisonment of from two (2) years four (4) months :and one (1) day to
four (4) years.
On 18 June 1993, the trial court granted herein petitioner's application for
probation.
On 11 April 1994, the trial court issued an order approving a report dated
6 April 1994 submitted by the Probation Officer recommending
petitioner's discharge from probation.
On 14 April 1994, petitioner filed before this Court a petition to be allowed
to take the lawyer's oath based on the order of his discharge from
probation.
On 13 July 1995, the Court through then Senior Associate Justice
Florentino P. Feliciano issued a resolution requiring petitioner Al C.
Argosino to submit to the Court evidence that he may now be regarded
as complying with the requirement of good moral character imposed upon
those seeking admission to the bar.
In compliance with the above resolution, petitioner submitted no less than
fifteen (15) certifications/letters executed by among others two (2)
senators, five (5) trial court judges, and six (6) members of religious
orders. Petitioner likewise submitted evidence that a scholarship
foundation had been established in honor of Raul Camaligan, the hazing
victim, through joint efforts of the latter's family and the eight (8) accused
in the criminal case.
On 26 September 1995, the Court required Atty. Gilbert Camaligan,
father of Raul, to comment on petitioner's prayer to be allowed to take the
lawyer's oath.
In his comment dated 4 December 1995, Atty. Camaligan states that:
a. He still believes that the infliction of severe physical injuries which led
to the death of his son was deliberate rather than accidental. The offense
therefore was not only homicide but murder since the accused took
advantage of the neophyte's helplessness implying abuse of confidence,
taking advantage of superior strength and treachery.
b. He consented to the accused's plea of guilt to the lesser offense of
reckless imprudence resulting in homicide only out of pity for the mothers
of the accused and a pregnant wife of one of the accused who went to
their house on Christmas day 1991 and Maundy Thursday 1992, literally
on their knees, crying and begging for forgiveness and compassion. They
also told him that the father of one of the accused had died of a heart
attack upon learning of his son's involvement in the incident.
c. As a Christian, he has forgiven petitioner and his co-accused for the
death of his son. However, as a loving father who had lost a son whom
he had hoped would succeed him in his law practice, he still feels the
pain of an untimely demise and the stigma of the gruesome manner of his
death.
d. He is not in a position to say whether petitioner is now morally fit for
admission to the bar. He therefore submits the matter to the sound
discretion of the Court.
6
The practice of law is a privilege granted only to those who possess the
strict intellectual and moral qualifications required of lawyers who are
instruments in the effective and efficient administration of justice. It is the
sworn duty of this Court not only to "weed out" lawyers who have become
a disgrace to the noble profession of the law but, also of equal
importance, to prevent "misfits" from taking the lawyer's oath, thereby
further tarnishing the public image of lawyers which in recent years has
undoubtedly become less than irreproachable.
The resolution of the issue before us required weighing and reweighing of
the reasons for allowing or disallowing petitioner's admission to the
practice of law. The senseless beatings inflicted upon Raul Camaligan
constituted evident absence of that moral fitness required for admission
to the bar since they were totally irresponsible, irrelevant and uncalled
for.
In the 13 July 1995 resolution in this case we stated:
. . . participation in the prolonged and mindless physical behavior,
[which] makes impossible a finding that the participant [herein
petitioner] was then possessed of good moral character. 1
In the same resolution, however, we stated that the Court is prepared to
consider de novo the question of whether petitioner has purged himself of
the obvious deficiency in moral character referred to above.
Before anything else, the Court understands and shares the sentiment of
Atty. Gilbert Camaligan. The death of one's child is, for a parent, a most
traumatic experience. The suffering becomes even more pronounced and
profound in cases where the death is due to causes other than natural or
accidental but due to the reckless imprudence of third parties. The feeling
then becomes a struggle between grief and anger directed at the cause
of death.
Atty. Camaligan's statement before the Court- manifesting his having
forgiven the accused is no less than praiseworthy and commendable. It is
exceptional for a parent, given the circumstances in this case, to find
room for forgiveness.
However, Atty. Camaligan admits that he is still not in a position to state if
petitioner is now morally fit to be a lawyer.
After a very careful evaluation of this case, we resolve to allow petitioner
Al Caparros Argosino to take the lawyer's oath, sign the Roll of Attorneys
and practice the legal profession with the following admonition:
In allowing Mr. Argosino to take the lawyer's oath, the Court recognizes
that Mr. Argosino is not inherently of bad moral fiber. On the contrary, the
various certifications show that he is a devout Catholic with a genuine
concern for civic duties and public service.
The Court is persuaded that Mr. Argosino has exerted all efforts to atone
for the death of Raul Camaligan. We are prepared to give him the benefit
of the doubt, taking judicial notice of the general tendency of youth to be
rash, temerarious and uncalculating.
We stress to Mr. Argosino that the lawyer's oath is NOT a mere
ceremony or formality for practicing law. Every lawyer should at ALL
TIMES weigh his actions according to the sworn promises he makes
when taking the lawyer's oath. If all lawyers conducted themselves strictly
according to the lawyer's oath and the Code of Professional
Responsibility, the administration of justice will undoubtedly be faster,
fairer and easier for everyone concerned.
The Court sincerely hopes that Mr. Argosino will continue with the
assistance he has been giving to his community. As a lawyer he will now
be in a better position to render legal and other services to the more
unfortunate members of society.
PREMISES CONSIDERED, petitioner Al Caparros Argosino is hereby
ALLOWED to take the lawyer's oath on a date to be set by the Court, to
sign the Roll of Attorneys and, thereafter, to practice the legal profession.
SO ORDERED.
EN BANC
A.C. No. 244 March 29, 1963
IN THE MATTER OF THE PETITION FOR DISBARMENT OF
TELESFORO A. DIAO,
vs.
SEVERINO G. MARTINEZ, petitioner.
BENGZON, C.J.:
7
After successfully passing the corresponding examinations held in 1953,
Telesforo A. Diao was admitted to the Bar.
About two years later, Severino Martinez charged him with having falsely
represented in his application for such Bar examination, that he had the
requisite academic qualifications. The matter was in due course referred
to the Solicitor General who caused the charge to be investigated; and
later he submitted a report recommending that Diao's name be erased
from the roll of attorneys, because contrary to the allegations in his
petition for examination in this Court, he (Diao) had not completed, before
taking up law subjects, the required pre-legal education prescribed by the
Department of Private Education, specially, in the following particulars:
(a) Diao did not complete his high school training; and
(b) Diao never attended Quisumbing College, and never obtained
his A.A. diploma therefrom — which contradicts the credentials
he had submitted in support of his application for examination,
and of his allegation therein of successful completion of the
"required pre-legal education".
Answering this official report and complaint, Telesforo A. Diao, practically
admits the first charge: but he claims that although he had left high
school in his third year, he entered the service of the U.S. Army, passed
the General Classification Test given therein, which (according to him) is
equivalent to a high school diploma, and upon his return to civilian life,
the educational authorities considered his army service as the equivalent
of 3rd and 4th year high school.
We have serious doubts, about the validity of this claim, what with
respondent's failure to exhibit any certification to that effect (the
equivalence) by the proper school officials. However, it is unnecessary to
dwell on this, since the second charge is clearly meritorious. Diao never
obtained his A.A. from Quisumbing College; and yet his application for
examination represented him as an A.A. graduate (1940-1941) of such
college. Now, asserting he had obtained his A.A. title from the Arellano
University in April, 1949, he says he was erroneously certified, due to
confusion, as a graduate of Quisumbing College, in his school records.
Wherefore, the parties respectfully pray that the foregoing stipulation of
facts be admitted and approved by this Honorable Court, without
prejudice to the parties adducing other evidence to prove their case not
covered by this stipulation of facts.
1äwphï1.ñët
This explanation is not acceptable, for the reason that the "error" or
"confusion" was obviously of his own making. Had his application
disclosed his having obtained A.A. from Arellano University, it would also
have disclosed that he got it in April, 1949, thereby showing that he
began his law studies (2nd semester of 1948-1949) six months before
obtaining his Associate in Arts degree. And then he would not have been
permitted to take the bar tests, because our Rules provide, and the
applicant for the Bar examination must affirm under oath, "That previous
to the study of law, he had successfully and satisfactorily completed the
required pre-legal education(A.A.) as prescribed by the Department of
Private Education," (emphasis on "previous").
Plainly, therefore, Telesforo A. Diao was not qualified to take the bar
examinations; but due to his false representations, he was allowed to
take it, luckily passed it, and was thereafter admitted to the Bar. Such
admission having been obtained under false pretenses must be, and is
hereby revoked. The fact that he hurdled the Bar examinations is
immaterial. Passing such examinations is not the only qualification to
become an attorney-at-law; taking the prescribed courses of legal study
in the regular manner is equally essential..
The Clerk is, therefore, ordered to strike from the roll of attorneys, the
name of Telesforo A. Diao. And the latter is required to return his lawyer's
diploma within thirty days. So ordered.
EN BANC
B.M. No. 2540 September 24, 2013
IN RE: PETITION TO SIGN IN THE ROLL OF ATTORNEYS
MICHAEL A. MEDADO, Petitioner.
RESOLUTION
SERENO, CJ.:
We resolve the instant Petition to Sign in the Roll of Attorneys filed by
petitioner Michael A. Medado (Medado).
8
Medado graduated from the University of the Philippines with the degree
of Bachelor of Laws in 19791 and passed the same year's bar
examinations with a general weighted average of 82.7. 2
On 7 May 1980, he took the Attorney’s Oath at the Philippine
International Convention Center (PICC) together with the successful bar
examinees.3 He was scheduled to sign in the Roll of Attorneys on 13 May
1980,4 but he failed to do so on his scheduled date, allegedly because he
had misplaced the Notice to Sign the Roll of Attorneys 5 given by the Bar
Office when he went home to his province for a vacation. 6
Several years later, while rummaging through his old college files,
Medado found the Notice to Sign the Roll of Attorneys. It was then that he
realized that he had not signed in the roll, and that what he had signed at
the entrance of the PICC was probably just an attendance record. 7
By the time Medado found the notice, he was already working. He stated
that he was mainly doing corporate and taxation work, and that he was
not actively involved in litigation practice. Thus, he operated "under the
mistaken belief that since he had already taken the oath, the signing of
the Roll of Attorneys was not as urgent, nor as crucial to his status as a
lawyer";8 and "the matter of signing in the Roll of Attorneys lost its
urgency and compulsion, and was subsequently forgotten." 9
In 2005, when Medado attended Mandatory Continuing Legal Education
(MCLE) seminars, he was required to provide his roll number in order for
his MCLE compliances to be credited.10
Not having signed in the Roll of Attorneys, he was unable to provide his
roll number.
About seven years later, or on 6 February 2012, Medado filed the instant
Petition, praying that he be allowed to sign in the Roll of Attorneys. 11
The Office of the Bar Confidant (OBC) conducted a clarificatory
conference on the matter on 21 September 201212and submitted a
Report and Recommendation to this Court on 4 February 2013. 13 The
OBC recommended that the instant petition be denied for petitioner’s
gross negligence, gross misconduct and utter lack of merit. 14 It explained
that, based on his answers during the clarificatory conference, petitioner
could offer no valid justification for his negligence in signing in the Roll of
Attorneys.15
After a judicious review of the records, we grant Medado’s prayer in the
instant petition, subject to the payment of a fine and the imposition of a
penalty equivalent to suspension from the practice of law.
At the outset, we note that not allowing Medado to sign in the Roll of
Attorneys would be akin to imposing upon him the ultimate penalty of
disbarment, a penalty that we have reserved for the most serious ethical
transgressions of members of the Bar.
In this case, the records do not show that this action is warranted.
For one, petitioner demonstrated good faith and good moral character
when he finally filed the instant Petition to Sign in the Roll of Attorneys.
We note that it was not a third party who called this Court’s attention to
petitioner’s omission; rather, it was Medado himself who acknowledged
his own lapse, albeit after the passage of more than 30 years. When
asked by the Bar Confidant why it took him this long to file the instant
petition, Medado very candidly replied:
Mahirap hong i-explain yan pero, yun bang at the time, what can you
say? Takot ka kung anong mangyayari sa ‘yo, you don’t know what’s
gonna happen. At the same time, it’s a combination of apprehension and
anxiety of what’s gonna happen. And, finally it’s the right thing to do. I
have to come here … sign the roll and take the oath as necessary. 16
For another, petitioner has not been subject to any action for
disqualification from the practice of law, 17 which is more than what we can
say of other individuals who were successfully admitted as members of
the Philippine Bar. For this Court, this fact demonstrates that petitioner
strove to adhere to the strict requirements of the ethics of the profession,
and that he has prima facie shown that he possesses the character
required to be a member of the Philippine Bar.
Finally, Medado appears to have been a competent and able legal
practitioner, having held various positions at the Laurel Law
Office,18 Petron, Petrophil Corporation, the Philippine National Oil
Company, and the Energy Development Corporation. 19
All these demonstrate Medado’s worth to become a full-fledged member
of the Philippine Bar. While the practice of law is not a right but a
1âwphi1
privilege,20 this Court will not unwarrantedly withhold this privilege from
individuals who have shown mental fitness and moral fiber to withstand
the rigors of the profession.
9
That said, however, we cannot fully exculpate petitioner Medado from all
liability for his years of inaction.
Petitioner has been engaged in the practice of law since 1980, a period
spanning more than 30 years, without having signed in the Roll of
Attorneys.21 He justifies this behavior by characterizing his acts as
"neither willful nor intentional but based on a mistaken belief and an
honest error of judgment."22
We disagree.
While an honest mistake of fact could be used to excuse a person from
the legal consequences of his acts23 as it negates malice or evil
motive,24 a mistake of law cannot be utilized as a lawful justification,
because everyone is presumed to know the law and its
consequences.25 Ignorantia factiexcusat; ignorantia legis neminem
excusat.
Applying these principles to the case at bar, Medado may have at first
operated under an honest mistake of fact when he thought that what he
had signed at the PICC entrance before the oath-taking was already the
Roll of Attorneys. However, the moment he realized that what he had
signed was merely an attendance record, he could no longer claim an
honest mistake of fact as a valid justification. At that point, Medado
should have known that he was not a full-fledged member of the
Philippine Bar because of his failure to sign in the Roll of Attorneys, as it
was the act of signing therein that would have made him so.26 When, in
spite of this knowledge, he chose to continue practicing law without
taking the necessary steps to complete all the requirements for admission
to the Bar, he willfully engaged in the unauthorized practice of law.
Under the Rules of Court, the unauthorized practice of law by one’s
assuming to be an attorney or officer of the court, and acting as such
without authority, may constitute indirect contempt of court,27 which is
punishable by fine or imprisonment or both. 28 Such a finding, however, is
in the nature of criminal contempt29 and must be reached after the filing of
charges and the conduct of hearings.30 In this case, while it appears quite
clearly that petitioner committed indirect contempt of court by knowingly
engaging in unauthorized practice of law, we refrain from making any
finding of liability for indirect contempt, as no formal charge pertaining
thereto has been filed against him.
Knowingly engaging in unauthorized practice of law likewise transgresses
Canon 9 of 'the Code of Professional Responsibility, which provides:
CANON 9 -A lawyer shall not, directly or indirectly, assist in the
unauthorized practice of law.
While a reading of Canon 9 appears to merely prohibit lawyers from
assisting in the unauthorized practice of law, the unauthorized practice of
law by the lawyer himself is subsumed under this provision, because at
the heart of Canon 9 is the lawyer's duty to prevent the unauthorized
practice of law. This duty likewise applies to law students and Bar
candidates. As aspiring members of the Bar, they are bound to comport
themselves in accordance with the ethical standards of the legal
profession.
Turning now to the applicable penalty, previous violations of Canon
9have warranted the penalty of suspension from the practice of law. 31 As
Medado is not yet a full-fledged lawyer, we cannot suspend him from the
practice of law. However, we see it fit to impose upon him a penalty akin
to suspension by allowing him to sign in the Roll of Attorneys one (1) year
after receipt of this Resolution. For his transgression of the prohibition
against the unauthorized practice of law, we likewise see it fit to fine him
in the amount of ₱32,000. During the one year period, petitioner is
warned that he is not allowed to engage in the practice of law, and is
sternly warned that doing any act that constitutes practice of law before
he has signed in the Roll of Attorneys will be dealt with severely by this
Court.
WHEREFORE, the instant Petition to Sign in the Roll of Attorneys is
hereby GRANTED. Petitioner Michael A. Medado is ALLOWED to sign in
the Roll of Attorneys ONE (1) YEAR after receipt of this Resolution.
Petitioner is likewise ORDERED to pay a FINE of ₱32,000 for his
unauthorized practice of law. During the one year period, petitioner is
NOT ALLOWED to practice law, and is STERNLY WARNED that doing
any act that constitutes practice of law before he has signed in the Roll of
Attorneys will be dealt will be severely by this Court.
Let a copy of this Resolution be furnished the Office of the Bar Confidant,
the Integrated Bar
of the Philippines, and the Office of the Court Administrator for circulation
to all courts in the country.
SO ORDERED.
10
 EN BANC
G.R. No. L-18727 August 31, 1964
JESUS MA. CUI, plaintiff-appellee,
vs.
ANTONIO MA. CUI, defendant-appellant,
ROMULO CUI, Intervenor-appellant.
Jose W. Diokno for plaintiff-appellee.
Jaime R. Nuevas and Hector L. Hofileña for defendant-appellant.
Romulo Cui in his own behalf as intervenor-appellants.
MAKALINTAL, J.:
This is a proving in quo warranto originally filed in the Court of First
Instance of Cebu. The office in contention is that of Administrator of
the Hospicio de San Jose de Barili. Judgment was rendered on 27 April
1961 in favor of the plaintiff, Jesus Ma. Cui, and appealed to us by the
defendant, Antonio Ma. Cui, and by the intervenor, Romulo Cui.
The Hospicio is a charitable institution established by the spouses Don
Pedro Cui and Doña Benigna Cui, now deceased, "for the care and
support, free of charge, of indigent invalids, and incapacitated and
helpless persons." It acquired corporate existence by legislation (Act No.
3239 of the Philippine Legislature passed 27 November 1925) and
endowed with extensive properties by the said spouses through a series
of donations, principally the deed of donation executed on 2 January
1926.
Section 2 of Act No. 3239 gave the initial management to the founders
jointly and, in case of their incapacity or death, to "such persons as they
may nominate or designate, in the order prescribed to them." Section 2 of
the deed of donation provides as follows:
Que en caso de nuestro fallecimiento o incapacidad para
administrar, nos sustituyan nuestro legitime sobrino Mariano Cui,
si al tiempo de nuestra muerte o incapacidad se hallare
residiendo en la caudad de Cebu, y nuestro sobrino politico
Dionisio Jakosalem. Si nuestro dicho sobrino Mariano Cui no
estuviese residiendo entonces en la caudad de Cebu,
designamos en su lugar a nuestro otro sobrino legitime Mauricio
Cui. Ambos sobrinos administraran conjuntamente el HOSPICIO
DE SAN JOSE DE BARILI. A la muerte o incapacidad de estos
dos administradores, la administracion del HOSPICIO DE SAN
JOSE DE BARILI pasara a una sola persona que sera el varon,
mayor de edad, que descienda legitimainente de cualquiera de
nuestros sobrinos legitimos Mariano Cui, Mauricio Cui, Vicente
Cui y Victor Cui, y que posea titulo de abogado, o medico, o
ingeniero civil, o farmaceutico, o a falta de estos titulos, el que
pague al Estado mayor impuesto o contribution. En igualdad de
circumstancias, sera preferida el varon de mas edad
descendiente de quien tenia ultimamente la administracion.
Cuando absolutamente faltare persona de estas cualificaciones,
la administracion del HOSPICIO DE SAN JOSE DE BARILI
pasara al senor Obispo de Cebu o quien sea el mayor dignatario
de la Iglesia Catolica, apostolica, Romana, que tuviere asiento en
la cabecera de esta Provincia de Cebu, y en su defecto, al
Gobierno Provincial de Cebu.
Don Pedro Cui died in 1926, and his widow continued to administer
the Hospicio until her death in 1929. Thereupon the administration
passed to Mauricio Cui and Dionisio Jakosalem. The first died on 8 May
1931 and the second on 1 July 1931. On 2 July 1931 Dr. Teodoro Cui,
only son of Mauricio Cui, became the administrator. Thereafter, beginning
in 1932, a series of controversies and court litigations ensued concerning
the position of administrator, to which, in so far as they are pertinent to
the present case, reference will be made later in this decision.
Plaintiff Jesus Ma. Cui and defendant Antonio Ma. Cui are brothers,
being the sons of Mariano Cui, one of the nephews of the spouses Don
Pedro Cui and Doña Benigna Cui. On 27 February 1960 the then
incumbent administrator, Dr. Teodoro Cui, resigned in favor of Antonio
Ma. Cui pursuant to a "convenio" entered into between them and
embodied in a notarial document. The next day, 28 February, Antonio
Ma. Cui took his oath of office. Jesus Ma. Cui, however, had no prior
notice of either the "convenio" or of his brother's assumption of the
position.
Dr. Teodoro Cui died on 27 August 1960; on 5 September 1960 the
plaintiff wrote a letter to the defendant demanding that the office be
turned over to him; and on 13 September 1960, the demand not having
been complied with the plaintiff filed the complaint in this case. Romulo
Cui later on intervened, claiming a right to the same office, being a
grandson of Vicente Cui, another one of the nephews mentioned by the
founders of the Hospicio in their deed of donation.
11
As between Jesus and Antonio the main issue turns upon their respective
qualifications to the position of administrator. Jesus is the older of the two
and therefore under equal circumstances would be preferred pursuant to
section 2 of the deed of donation. However, before the test of age may
be, applied the deed gives preference to the one, among the legitimate
descendants of the nephews therein named, "que posea titulo de
abogado, o medico, o ingeniero civil, o farmaceutico, o a falta de estos
titulos el que pague al estado mayor impuesto o contribucion."
The specific point in dispute is the mealing of the term "titulo de
abogado." Jesus Ma. Cui holds the degree of Bachelor of Laws from the
University of Santo Tomas (Class 1926) but is not a member of the Bar,
not having passed the examinations to qualify him as one. Antonio Ma.
Cui, on the other hand, is a member of the Bar and although disbarred by
this Court on 29 March 1957 (administrative case No. 141), was
reinstated by resolution promulgated on 10 February 1960, about two
weeks before he assumed the position of administrator of the Hospicio de
Barili.
The Court a quo, in deciding this point in favor of the plaintiff, said that
the phrase "titulo de abogado," taken alone, means that of a full-fledged
lawyer, but that has used in the deed of donation and considering the
function or purpose of the administrator, it should not be given a strict
interpretation but a liberal one," and therefore means a law degree or
diploma of Bachelor of Laws. This ruling is assailed as erroneous both by
the defendant and by the intervenor.
We are of the opinion, that whether taken alone or in context the term
"titulo de abogado" means not mere possession of the academic degree
of Bachelor of Laws but membership in the Bar after due admission
thereto, qualifying one for the practice of law. In Spanish the word "titulo"
is defined as "testimonies o instrumento dado para ejercer un empleo,
dignidad o profesion" (Diccionario de la Lengua Española, Real
Academia Espanola, 1947 ed., p. 1224) and the word "abogado," as
follows: "Perito en el derecho positivo que se dedica a defender en juicio,
por escrito o de palabra, los derechos o intereses de los litigantes, y
tambien a dar dictmen sobre las cuestiones o puntos legales que se le
consultan (Id., p.5) A Bachelor's degree alone, conferred by a law school
upon completion of certain academic requirements, does not entitle its
holder to exercise the legal profession. The English equivalent of
"abogado" is lawyer or attorney-at-law. This term has a fixed and general
signification, and has reference to that class of persons who are by
license officers of the courts, empowered to appear, prosecute and
defend, and upon whom peculiar duties, responsibilities and liabilities are
devolved by law as a consequence.
In this jurisdiction admission to the Bar and to the practice of law is under
the authority of the Supreme Court. According to Rule 138 such
admission requires passing the Bar examinations, taking the lawyer's
oath and receiving a certificate from the Clerk of Court, this certificate
being his license to practice the profession. The academic degree of
Bachelor of Laws in itself has little to do with admission to the Bar, except
as evidence of compliance with the requirements that an applicant to the
examinations has "successfully completed all the prescribed courses, in a
law school or university, officially approved by the Secretary of
Education." For this purpose, however, possession of the degree itself is
not indispensable: completion of the prescribed courses may be shown in
some other way. Indeed there are instances, particularly under the former
Code of Civil Procedure, where persons who had not gone through any
formal legal education in college were allowed to take the Bar
examinations and to qualify as lawyers. (Section 14 of that code required
possession of "the necessary qualifications of learning ability.") Yet
certainly it would be incorrect to say that such persons do not possess
the "titulo de abogado" because they lack the academic degree of
Bachelor of Laws from some law school or university.
The founders of the Hospicio de San Jose de Barili must have
established the foregoing test advisely, and provided in the deed of
donation that if not a lawyer, the administrator should be a doctor or a
civil engineer or a pharmacist, in that order; or failing all these, should be
the one who pays the highest taxes among those otherwise qualified. A
lawyer, first of all, because under Act No. 3239 the managers or trustees
of the Hospicio shall "make regulations for the government of said
institution (Sec. 3, b); shall "prescribe the conditions subject to which
invalids and incapacitated and destitute persons may be admitted to the
institute" (Sec. 3, d); shall see to it that the rules and conditions
promulgated for admission are not in conflict with the provisions of the
Act; and shall administer properties of considerable value — for all of
which work, it is to be presumed, a working knowledge of the law and a
license to practice the profession would be a distinct asset.
Under this particular criterion we hold that the plaintiff is not entitled, as
against the defendant, to the office of administrator. But it is argued that
although the latter is a member of the Bar he is nevertheless disqualified
by virtue of paragraph 3 of the deed of donation, which provides that the
administrator may be removed on the ground, among others, of
ineptitude in the discharge of his office or lack of evident sound moral
12
character. Reference is made to the fact that the defendant was
disbarred by this Court on 29 March 1957 for immorality and
unprofessional conduct. It is also a fact, however, that he was reinstated
on 10 February 1960, before he assumed the office of administrator. His
reinstatement is a recognition of his moral rehabilitation, upon proof no
less than that required for his admission to the Bar in the first place.
Wherefore, the parties respectfully pray that the foregoing stipulation of
facts be admitted and approved by this Honorable Court, without
prejudice to the parties adducing other evidence to prove their case not
covered by this stipulation of facts.1äwphï1.ñët
Whether or not the applicant shall be reinstated rests to a great
extent in the sound discretion of the court. The court action will
depend, generally speaking, on whether or not it decides that the
public interest in the orderly and impartial administration of justice
will be conserved by the applicant's participation therein in the
capacity of an attorney and counselor at law. The applicant must,
like a candidate for admission to the bar, satisfy the court that he
is a person of good moral character — a fit and proper person to
practice law. The court will take into consideration the applicant's
character and standing prior to the disbarment, the nature and
character of the charge for which he was disbarred, his conduct
subsequent to the disbarment, and the time that has elapsed
between the disbarment and the application for reinstatement. (5
Am. Jur., Sec. 301, p. 443)
Evidence of reformation is required before applicant is entitled to
reinstatement, notwithstanding the attorney has received a
pardon following his conviction, and the requirements for
reinstatement have been held to be the same as for original
admission to the bar, except that the court may require a greater
degree of proof than in an original admission. (7 C.J.S., Attorney
& Client, Sec. 41, p. 815.)
The decisive questions on an application for reinstatement are
whether applicant is "of good moral character" in the sense in
which that phrase is used when applied to attorneys-at-law and is
a fit and proper person to be entrusted with the privileges of the
office of an attorney, and whether his mental qualifications are
such as to enable him to discharge efficiently his duty to the
public, and the moral attributes are to be regarded as a separate
and distinct from his mental qualifications. (7 C.J.S., Attorney &
Client, Sec. 41, p. 816).
As far as moral character is concerned, the standard required of one
seeking reinstatement to the office of attorney cannot be less exacting
than that implied in paragraph 3 of the deed of donation as a requisite for
the office which is disputed in this case. When the defendant was
restored to the roll of lawyers the restrictions and disabilities resulting
from his previous disbarment were wiped out.
This action must fail on one other ground: it is already barred by lapse of
time amounting the prescription or laches. Under Section 16 of Rule 66
(formerly sec. 16, Rule 68, taken from section 216 of Act 190), this kind of
action must be filed within one (1) year after the right of plaintiff to hold
the office arose.
Plaintiff Jesus Ma. Cui believed himself entitled to the office in question
as long ago as 1932. On January 26 of that year he filed a complaint
in quo warranto against Dr. Teodoro Cui, who assumed the
administration of the Hospicio on 2 July 1931. Mariano Cui, the plaintiff's
father and Antonio Ma. Cui came in as intervenors. The case was
dismissed by the Court of First Instance upon a demurrer by the
defendant there to the complaint and complaint in intervention. Upon
appeal to the Supreme Court from the order of dismissal, the case was
remanded for further proceedings (Cui v. Cui, 60 Phil. 37, 48). The
plaintiff, however, did not prosecute the case as indicated in the decision
of this Court, but acceded to an arrangement whereby Teodoro Cui
continued as administrator, Mariano Cui was named "legal adviser" and
plaintiff Jesus Ma. Cui accepted a position as assistant administrator.
Subsequently the plaintiff tried to get the position by a series of extra-
judicial maneuvers. First he informed the Social Welfare Commissioner,
by letter dated 1 February 1950, that as of the previous 1 January he had
"made clear" his intention of occupying the office of administrator of
the Hospicio." He followed that up with another letter dated 4 February,
announcing that he had taken over the administration as of 1 January
1950. Actually, however, he took his oath of office before a notary public
only on 4 March 1950, after receiving a reply of acknowledgment, dated 2
March, from the Social Welfare Commissioner, who thought that he had
already assumed the position as stated in his communication of 4
February 1950. The rather muddled situation was referred by the
Commissioner to the Secretary of Justice, who, in an opinion dated 3
April 1950 (op. No. 45, S. 1950), correcting another opinion previously
given, in effect ruled that the plaintiff, not beings lawyer, was not entitled
to the administration of the Hospicio.
13
Meanwhile, the question again became the subject of a court
controversy. On 4 March 1950, the Hospicio commenced an action
against the Philippine National Bank in the Court of First Instance of
Cebu (Civ. No. R-1216) because the Bank had frozen
the Hospicio's deposits therein. The Bank then filed a third-party
complaint against herein plaintiff-appellee, Jesus Ma. Cui, who had, as
stated above, taken oath as administrator. On 19 October 1950, having
been deprived of recognition by the opinion of the Secretary of Justice he
moved to dismiss the third-party complaint on the ground that he was
relinquishing "temporarily" his claim to the administration of the Hospicio.
The motion was denied in an order dated 2 October 1953. On 6 February
1954 he was able to take another oath of office as administrator before
President Magsaysay, and soon afterward filed a second motion to
dismiss in Civil case No. R-1216. President Magsaysay, be it said, upon
learning that a case was pending in Court, stated in a telegram to his
Executive Secretary that "as far as (he) was concerned the court may
disregard the oath" thus taken. The motion to dismiss was granted
nevertheless and the other parties in the case filed their notice of appeal
from the order of dismissal. The plaintiff then filed an ex-parte motion to
be excluded as party in the appeal and the trial Court again granted the
motion. This was on 24 November 1954. Appellants thereupon instituted
a mandamus proceeding in the Supreme Court (G.R. No. L-8540), which
was decided on 28 May 1956, to the effect that Jesus Ma. Cui should be
included in the appeal. That appeal, however, after it reached this Court
was dismiss upon motion of the parties, who agreed that "the office of
administrator and trustee of the Hospicio ... should be ventilated in quo
warranto proceedings to be initiated against the incumbent by
whomsoever is not occupying the office but believes he has a right to it"
(G.R. No. L-9103). The resolution of dismissal was issued 31 July 1956.
At that time the incumbent administrator was Dr. Teodoro Cui, but no
action in quo warranto was filed against him by plaintiff Jesus Ma. Cui as
indicated in the aforesaid motion for dismissal.
On 10 February 1960, defendant Antonio Ma. Cui was reinstated by this
Court as member of the Bar, and on the following 27 February Dr.
Teodoro Cui resigned as administrator in his favor, pursuant to the
"convenio" between them executed on the same date. The next day
Antonio Ma. Cui took his oath of office.
The failure of the plaintiff to prosecute his claim judicially after this Court
decided the first case of Cui v. Cui in 1934 (60 Phil. 3769), remanding it
to the trial court for further proceedings; his acceptance instead of the
position of assistant administrator, allowing Dr. Teodoro Cui to continue
as administrator and his failure to file an action in quo warranto against
said Dr. Cui after 31 July 1956, when the appeal in Civil Case No. R-1216
of the Cebu Court was dismissed upon motion of the parties precisely so
that the conflicting claims of the parties could be ventilated in such an
action — all these circumstances militate against the plaintiff's present
claim in view of the rule that an action in quo warranto must be filed
within one year after the right of the plaintiff to hold the office arose. The
excuse that the plaintiff did not file an action against Dr. Teodoro Cui after
31 July 1956 because of the latter's illness did not interrupt the running of
the statutory period. And the fact that this action was filed within one year
of the defendant's assumption of office in September 1960 does not
make the plaintiff's position any better, for the basis of the action is his
own right to the office and it is from the time such right arose that the
one-year limitation must be counted, not from the date the incumbent
began to discharge the duties of said office. Bautista v. Fajardo, 38 Phil.
624; Lim vs. Yulo, 62 Phil. 161.
Now for the claim of intervenor and appellant Romulo Cui. This party is
also a lawyer, grandson of Vicente Cui, one of the nephews of the
founders of the Hospicio mentioned by them in the deed of donation. He
is further, in the line of succession, than defendant Antonio Ma. Cui, who
is a son of Mariano Cui, another one of the said nephews. The deed of
donation provides: "a la muerte o incapacidad de estos administradores
(those appointed in the deed itself) pasara a una sola persona que sera
el varon, mayor de edad, que descienda legitimamente de cualquiera de
nuestros sobrinos legitimos Mariano Cui, Mauricio Cui, Vicente Cui,
Victor Cui, y que posea titulo de abogado ... En igualdad de
circumstancias, sera preferido el varon de mas edad descendiente de
quien tenia ultimamente la administration." Besides being a nearer
descendant than Romulo Cui, Antonio Ma. Cui is older than he and
therefore is preferred when the circumstances are otherwise equal. The
intervenor contends that the intention of the founders was to confer the
administration by line and successively to the descendants of the
nephews named in the deed, in the order they are named. Thus, he
argues, since the last administrator was Dr. Teodoro Cui, who belonged
to the Mauricio Cui line, the next administrator must come from the line of
Vicente Cui, to whom the intervenor belongs. This interpretation,
however, is not justified by the terms of the deed of donation.
IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment
appealed from is reversed and set aside, and the complaint as well as the
complaint in intervention are dismissed, with costs equally against
plaintiff-appellee and intervenor-appellant.
14
 THIRD DIVISION
A.M. No. SDC-97-2-P February 24, 1997
SOPHIA ALAWI, complainant,
vs.
ASHARY M. ALAUYA, Clerk of Court VI, Shari'a District Court, Marawi
City, respondent.
NARVASA, C.J.:
Sophia Alawi was (and presumably still is) a sales representative (or
coordinator) of E.B. Villarosa & Partners Co., Ltd. of Davao City, a real
estate and housing company. Ashari M. Alauya is the incumbent
executive clerk of court of the 4th Judicial Shari'a District in Marawi City,
They were classmates, and used to be friends.
It appears that through Alawi's agency, a contract was executed for the
purchase on installments by Alauya of one of the housing units belonging
to the above mentioned firm (hereafter, simply Villarosa & Co.); and in
connection therewith, a housing loan was also granted to Alauya by the
National Home Mortgage Finance Corporation (NHMFC).
Not long afterwards, or more precisely on December 15, 1995, Alauya
addressed a letter to the President of Villarosa & Co. advising of the
termination of his contract with the company. He wrote:
. . I am formally and officially withdrawing from and notifying you
of my intent to terminate the Contract/Agreement entered into
between me and your company, as represented by your Sales
Agent/Coordinator, SOPHIA ALAWI, of your company's branch
office here in Cagayan de Oro City, on the grounds that my
consent was vitiated by gross misrepresentation, deceit, fraud,
dishonesty and abuse of confidence by the aforesaid sales agent
which made said contract void ab initio. Said sales agent acting in
bad faith perpetrated such illegal and unauthorized acts which
made said contract an Onerous Contract prejudicial to my rights
and interests. He then proceeded to expound in considerable
detail and quite acerbic language on the "grounds which could
evidence the bad faith. deceit, fraud, misrepresentation,
dishonesty and abuse of confidence by the unscrupulous sales
agent . . .;" and closed with the plea that Villarosa & Co. "agree
for the mutual rescission of our contract, even as I inform you that
I categorically state on record that I am terminating the contract . .
. I hope I do not have to resort to any legal action before said
onerous and manipulated contract against my interest be
annulled. I was actually fooled by your sales agent, hence the
need to annul the controversial contract."
Alauya sent a copy of the letter to the Vice-President of Villarosa
& Co. at San Pedro, Gusa, Cagayan de Oro City. The envelope
containing it, and which actually went through the post, bore no
stamps. Instead at the right hand corner above the description of
the addressee, the words, "Free Postage - PD 26," had been
typed.
On the same date, December 15, 1995, Alauya also wrote to Mr.
Fermin T. Arzaga, Vice-President, Credit & Collection Group of
the National Home Mortgage Finance Corporation (NHMFC) at
Salcedo Village, Makati City, repudiating as fraudulent and void
his contract with Villarosa & Co.; and asking for cancellation of his
housing loan in connection therewith, which was payable from
salary deductions at the rate of P4,338.00 a month. Among other
things, he said:
. . . (T)hrough this written notice, I am terminating, as I
hereby annul, cancel, rescind and voided, the
"manipulated contract" entered into between me and the
E.B. Villarosa & Partner Co., Ltd., as represented by its
sales agent/coordinator, SOPHIA ALAWI, who maliciously
and fraudulently manipulated said contract and unlawfully
secured and pursued the housing loan without my
authority and against my will. Thus, the contract itself is
deemed to be void ab initio in view of the attending
circumstances, that my consent was vitiated by
misrepresentation, fraud, deceit, dishonesty, and abuse of
confidence; and that there was no meeting of the minds
between me and the swindling sales agent who
concealed the real facts from me.
And, as in his letter to Villarosa & Co., he narrated in some detail
what he took to be the anomalous actuations of Sophia Alawi.
15
Alauya wrote three other letters to Mr. Arzaga of the NHMFC, dated
February 21, 1996, April 15, 1996, and May 3, 1996, in all of which, for
the same reasons already cited, he insisted on the cancellation of his
housing loan and discontinuance of deductions from his salary on
account thereof. a He also wrote on January 18, 1996 to Ms. Corazon M. Ordoñez, Head of the
Fiscal Management & Budget Office, and to the Chief, Finance Division, both of this Court, to stop
deductions from his salary in relation to the loan in question, again asserting the anomalous manner by
which he was allegedly duped into entering into the contracts by "the scheming sales agent." b
The upshot was that in May, 1996, the NHMFC wrote to the Supreme Court requesting it to stop
deductions on Alauya's UHLP loan "effective May 1996." and began negotiating with Villarosa & Co. "
for the buy-back of . . . (Alauya's) mortgage. and . . the refund of . . (his) payments." c
On learning of Alauya's letter to Villarosa & Co. of December 15, 1995, Sophia Alawi filed with this
Court a verified complaint dated January 25, 1996 — to which she appended a copy of the letter, and
of the above mentioned envelope bearing the typewritten words, "Free Postage - PD 26."1 In that
complaint, she accused Alauya of:
1. "Imputation of malicious and libelous charges with no solid
grounds through manifest ignorance and evident bad faith;"
2. "Causing undue injury to, and blemishing her honor and
established reputation;"
3. "Unauthorized enjoyment of the privilege of free postage . . .;"
and
4. Usurpation of the title of "attorney," which only regular
members of the Philippine Bar may properly use.
She deplored Alauya's references to her as "unscrupulous swindler,
forger, manipulator, etc." without "even a bit of evidence to cloth (sic) his
allegations with the essence of truth," denouncing his imputations as
irresponsible, "all concoctions, lies, baseless and coupled with manifest
ignorance and evident bad faith," and asserting that all her dealings with
Alauya had been regular and completely transparent. She closed with the
plea that Alauya "be dismissed from the senice, or be appropriately
desciplined (sic) . . ."
The Court resolved to order Alauya to comment on the complaint,
Conformably with established usage that notices of resolutions emanate
from the corresponding Office of the Clerk of Court, the notice of
resolution in this case was signed by Atty. Alfredo P. Marasigan,
Assistant Division Clerk of Court.2
Alauya first submitted a "Preliminary Comment"3 in which he questioned
the authority of Atty. Marasigan to require an explanation of him, this
power pertaining, according to him, not to "a mere Asst. Div. Clerk of
Court investigating an Executive Clerk of Court." but only to the District
Judge, the Court Administrator or the Chief Justice, and voiced the
suspicion that the Resolution was the result of a "strong link" between
Ms. Alawi and Atty. Marasigan's office. He also averred that the complaint
had no factual basis; Alawi was envious of him for being not only "the
Executive Clerk of Court and ex-officio Provincial Sheriff and District
Registrar." but also "a scion of a Royal Family . . ."4
In a subsequent letter to Atty. Marasigan, but this time in much less
aggressive, even obsequious tones,5 Alauya requested the former to give
him a copy of the complaint in order that he might comment thereon. 6 He
stated that his acts as clerk of court were done in good faith and within
the confines of the law; and that Sophia Alawi, as sales agent of Villarosa
& Co. had, by falsifying his signature, fraudulently bound him to a housing
loan contract entailing monthly deductions of P4,333.10 from his salary.
And in his comment thereafter submitted under date of June 5, 1996,
Alauya contended that it was he who had suffered "undue injury, mental
anguish, sleepless nights, wounded feelings and untold financial
suffering," considering that in six months, a total of P26,028.60 had been
deducted from his salary.7 He declared that there was no basis for the
complaint; in communicating with Villarosa & Co. he had merely acted in
defense of his rights. He denied any abuse of the franking privilege,
saying that he gave P20.00 plus transportation fare to a subordinate
whom he entrusted with the mailing of certain letters; that the words:
"Free Postage - PD 26," were typewritten on the envelope by some other
person, an averment corroborated by the affidavit of Absamen C.
Domocao, Clerk IV (subscribed and sworn to before respondent himself,
and attached to the comment as Annex J); 8 and as far as he knew, his
subordinate mailed the letters with the use of the money he had given for
postage, and if those letters were indeed mixed with the official mail of
the court, this had occurred inadvertently and because of an honest
mistake.9
Alauya justified his use of the title, "attorney," by the assertion that it is
"lexically synonymous" with "Counsellors-at-law." a title to which Shari'a
lawyers have a rightful claim, adding that he prefers the title of "attorney"
because "counsellor" is often mistaken for "councilor," "konsehal" or the
Maranao term "consial," connoting a local legislator beholden to the
mayor. Withal, he does not consider himself a lawyer.
16
He pleads for the Court's compassion, alleging that what he did "is
expected of any man unduly prejudiced and injured." 10 He claims he was
manipulated into reposing his trust in Alawi, a classmate and friend. 11 He
was induced to sign a blank contract on Alawi's assurance that she would
show the completed document to him later for correction, but she had
since avoided him; despite "numerous letters and follow-ups" he still does
not know where the property — subject of his supposed agreement with
Alawi's principal, Villarosa & Co. — is situated; 12 He says Alawi somehow
got his GSIS policy from his wife, and although she promised to return it
the next day, she did not do so until after several months. He also claims
that in connection with his contract with Villarosa & Co., Alawi forged his
signature on such pertinent documents as those regarding the down
payment, clearance, lay-out, receipt of the key of the house, salary
deduction, none of which he ever saw. 13
Averring in fine that his acts in question were done without malice, Alauya
prays for the dismissal of the complaint for lack of merit, it consisting of
"fallacious, malicious and baseless allegations." and complainant Alawi
having come to the Court with unclean hands, her complicity in the
fraudulent housing loan being apparent and demonstrable.
It may be mentioned that in contrast to his two (2) letters to Assistant
Clerk of Court Marasigan (dated April 19, 1996 and April 22, 1996), and
his two (2) earlier letters both dated December 15, 1996 — all of which
he signed as "Atty. Ashary M. Alauya" — in his Comment of June 5,
1996, he does not use the title but refers to himself as "DATU ASHARY
M. ALAUYA."
The Court referred the case to the Office of the Court Administrator for
evaluation, report and recommendation. 14
The first accusation against Alauya is that in his aforesaid letters, he
made "malicious and libelous charges (against Alawi) with no solid
grounds through manifest ignorance and evident bad faith, resulting in
"undue injury to (her) and blemishing her honor and established
reputation." In those letters, Alauya had written inter alia that:
1) Alawi obtained his consent to the contracts in question "by gross
misrepresentation, deceit, fraud, dishonesty and abuse of confidence;"
2) Alawi acted in bad faith and perpetrated . . . illegal and unauthorized
acts . . . prejudicial to . . (his) rights and interests;"
3) Alawi was an "unscrupulous (and "swindling") sales agent" who had
fooled him by "deceit, fraud, misrepresentation, dishonesty and abuse of
confidence;" and
4) Alawi had maliciously and fraudulently manipulated the contract with
Villarosa & Co., and unlawfully secured and pursued the housing loan
without . . (his) authority and against . . (his) will," and "concealed the real
facts . . ."
Alauya's defense essentially is that in making these statements, he was
merely acting in defense of his rights, and doing only what "is expected of
any man unduly prejudiced and injured," who had suffered "mental
anguish, sleepless nights, wounded feelings and untold financial
suffering, considering that in six months, a total of P26,028.60 had been
deducted from his salary. 15
The Code of Conduct and Ethical Standards for Public Officials and
Employees (RA 6713) inter alia enunciates the State policy of promoting
a high standard of ethics and utmost responsibility in the public
service. 16 Section 4 of the Code commands that "(p)ublic officials and
employees . . at all times respect the rights of others, and . . refrain from
doing acts contrary to law, good morals, good customs, public policy,
public order, public safety and public interest." 17 More than once has this
Court emphasized that "the conduct and behavior of every official and
employee of an agency involved in the administration of justice, from the
presiding judge to the most junior clerk, should be circumscribed with the
heavy burden of responsibility. Their conduct must at all times be
characterized by, among others, strict propriety and decorum so as to
earn and keep the respect of the public for the judiciary." 18
Now, it does not appear to the Court consistent with good morals, good
customs or public policy, or respect for the rights of others, to couch
denunciations of acts believed — however sincerely — to be deceitful,
fraudulent or malicious, in excessively intemperate, insulting or virulent
language. Alauya is evidently convinced that he has a right of action
against Sophia Alawi. The law requires that he exercise that right with
propriety, without malice or vindictiveness, or undue harm to anyone; in a
manner consistent with good morals, good customs, public policy, public
order, supra; or otherwise stated, that he "act with justice, give everyone
his due, and observe honesty and good
faith." 19 Righteous indignation, or vindication of right cannot justify resort
to vituperative language, or downright name-calling. As a member of the
Shari'a Bar and an officer of a Court, Alawi is subject to a standard of
conduct more stringent than for most other government workers. As a
17
man of the law, he may not use language which is abusive, offensive,
scandalous, menacing, or otherwise improper. 20 As a judicial employee, it
is expected that he accord respect for the person and the rights of others
at all times, and that his every act and word should be characterized by
prudence, restraint, courtesy, dignity. His radical deviation from these
salutary norms might perhaps be mitigated, but cannot be excused, by
his strongly held conviction that he had been grievously wronged.
As regards Alauya's use of the title of "Attorney," this Court has already
had occasion to declare that persons who pass the Shari'a Bar are not
full-fledged members of the Philippine Bar, hence may only practice law
before Shari'a courts. 21 While one who has been admitted to the Shari'a
Bar, and one who has been admitted to the Philippine Bar, may both be
considered "counsellors," in the sense that they give counsel or advice in
a professional capacity, only the latter is an "attorney." The title of
"attorney" is reserved to those who, having obtained the necessary
degree in the study of law and successfully taken the Bar Examinations,
have been admitted to the Integrated Bar of the Philippines and remain
members thereof in good standing; and it is they only who are authorized
to practice law in this jurisdiction.
Alauya says he does not wish to use the title, "counsellor" or "counsellor-
at-law, " because in his region, there are pejorative connotations to the
term, or it is confusingly similar to that given to local legislators. The
ratiocination, valid or not, is of no moment. His disinclination to use the
title of "counsellor" does not warrant his use of the title of attorney.
Finally, respecting Alauya's alleged unauthorized use of the franking
privilege, 22 the record contains no evidence adequately establishing the
accusation.
WHEREFORE, respondent Ashari M. Alauya is hereby REPRIMANDED
for the use of excessively intemperate, insulting or virulent language, i.e.,
language unbecoming a judicial officer, and for usurping the title of
attorney; and he is warned that any similar or other impropriety or
misconduct in the future will be dealt with more severely.
SO ORDERED.
EN BANC
Resolution March 18, 1954
In the Matter of the Petitions for Admission to the Bar of
Unsuccessful Candidates of 1946 to 1953;
ALBINO CUNANAN, ET AL., petitioners.
Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo, and Antonio Enrile
Inton for petitioners.
Office of the Solicitor General Juan R. Liwag for respondent.
DIOKNO, J.:
In recent years few controversial issues have aroused so much public
interest and concern as Republic Act No. 972, popularly known as the
"Bar Flunkers' Act of 1953." Under the Rules of Court governing
admission to the bar, "in order that a candidate (for admission to the Bar)
may be deemed to have passed his examinations successfully, he must
have obtained a general average of 75 per cent in all subjects, without
falling below 50 per cent in any subject." (Rule 127, sec. 14, Rules of
Court). Nevertheless, considering the varying difficulties of the different
bar examinations held since 1946 and the varying degree of strictness
with which the examination papers were graded, this court passed and
admitted to the bar those candidates who had obtained an average of
only 72 per cent in 1946, 69 per cent in 1947, 70 per cent in 1948, and 74
per cent in 1949. In 1950 to 1953, the 74 per cent was raised to 75 per
cent.
Believing themselves as fully qualified to practice law as those
reconsidered and passed by this court, and feeling conscious of having
been discriminated against (See Explanatory Note to R.A. No. 972),
unsuccessful candidates who obtained averages of a few percentage
lower than those admitted to the Bar agitated in Congress for, and
secured in 1951 the passage of Senate Bill No. 12 which, among others,
reduced the passing general average in bar examinations to 70 per cent
effective since 1946. The President requested the views of this court on
the bill. Complying with that request, seven members of the court
subscribed to and submitted written comments adverse thereto, and
shortly thereafter the President vetoed it. Congress did not override the
veto. Instead, it approved Senate Bill No. 371, embodying substantially
the provisions of the vetoed bill. Although the members of this court
reiterated their unfavorable views on the matter, the President allowed
18
the bill to become a law on June 21, 1953 without his signature. The law, whose motions for the revision of their examination papers were still
which incidentally was enacted in an election year, reads in full as pending also invoked the aforesaid law as an additional ground for
follows: admission. There are also others who have sought simply the
reconsideration of their grades without, however, invoking the law in
REPUBLIC ACT NO. 972 question. To avoid injustice to individual petitioners, the court first
reviewed the motions for reconsideration, irrespective of whether or not
AN ACT TO FIX THE PASSING MARKS FOR BAR they had invoked Republic Act No. 972. Unfortunately, the court has
EXAMINATIONS FROM NINETEEN HUNDRED AND FORTY- found no reason to revise their grades. If they are to be admitted to the
SIX UP TO AND INCLUDING NINETEEN HUNDRED AND bar, it must be pursuant to Republic Act No. 972 which, if declared valid,
FIFTY-FIVE. should be applied equally to all concerned whether they have filed
petitions or not. A complete list of the petitioners, properly classified,
affected by this decision, as well as a more detailed account of the history
Be it enacted by the Senate and House of Representatives of the
of Republic Act No. 972, are appended to this decision as Annexes I and
Philippines in Congress assembled:
II. And to realize more readily the effects of the law, the following
statistical data are set forth:
SECTION 1. Notwithstanding the provisions of section fourteen, Rule
numbered one hundred twenty-seven of the Rules of Court, any bar
(1) The unsuccessful bar candidates who are to be benefited by section 1
candidate who obtained a general average of seventy per cent in any bar
of Republic Act No. 972 total 1,168, classified as follows:
examinations after July fourth, nineteen hundred and forty-six up to the
August nineteen hundred and fifty-one bar examinations; seventy-one per
cent in the nineteen hundred and fifty-two bar examinations; seventy-two 1946 (August) 206 121 18
per cent in the in the nineteen hundred and fifty-three bar examinations; 1946 (November) 477 228 43
seventy-three per cent in the nineteen hundred and fifty-four bar
examinations; seventy-four per cent in the nineteen hundred and fifty-five 1947 749 340 0
bar examinations without a candidate obtaining a grade below fifty per 1948 899 409 11
cent in any subject, shall be allowed to take and subscribe the 1949 1,218 532 164
corresponding oath of office as member of the Philippine Bar: Provided,
however, That for the purpose of this Act, any exact one-half or more of a 1950 1,316 893 26
fraction, shall be considered as one and included as part of the next 1951 2,068 879 196
whole number.
1952 2,738 1,033 426
SEC. 2. Any bar candidate who obtained a grade of seventy-five per cent 1953 2,555 968 284
in any subject in any bar examination after July fourth, nineteen hundred TOTAL 12,230 5,421 1,168
and forty-six shall be deemed to have passed in such subject or subjects
and such grade or grades shall be included in computing the passing Of the total 1,168 candidates, 92 have passed in subsequent
general average that said candidate may obtain in any subsequent examination, and only 586 have filed either motions for admission to the
examinations that he may take. bar pursuant to said Republic Act, or mere motions for reconsideration.
SEC. 3. This Act shall take effect upon its approval. (2) In addition, some other 10 unsuccessful candidates are to be
benefited by section 2 of said Republic Act. These candidates had each
Enacted on June 21, 1953, without the Executive approval. taken from two to five different examinations, but failed to obtain a
passing average in any of them. Consolidating, however, their highest
After its approval, many of the unsuccessful postwar candidates filed grades in different subjects in previous examinations, with their latest
petitions for admission to the bar invoking its provisions, while others

19
marks, they would be sufficient to reach the passing average as provided
for by Republic Act No. 972.
(3) The total number of candidates to be benefited by this Republic Acts
is therefore 1,094, of which only 604 have filed petitions. Of these 604
petitioners, 33 who failed in 1946 to 1951 had individually presented
motions for reconsideration which were denied, while 125 unsuccessful
candidates of 1952, and 56 of 1953, had presented similar motions,
which are still pending because they could be favorably affected by
Republic Act No. 972, — although as has been already stated, this
tribunal finds no sufficient reasons to reconsider their grades
UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972
Having been called upon to enforce a law of far-reaching effects on the
practice of the legal profession and the administration of justice, and
because some doubts have been expressed as to its validity, the court
set the hearing of the afore-mentioned petitions for admission on the sole
question of whether or not Republic Act No. 972 is constitutional.
We have been enlightened in the study of this question by the brilliant
assistance of the members of the bar who have amply argued, orally an
in writing, on the various aspects in which the question may be gleaned.
The valuable studies of Messrs. E. Voltaire Garcia, Vicente J. Francisco,
Vicente Pelaez and Buenaventura Evangelista, in favor of the validity of
the law, and of the U.P. Women's Lawyers' Circle, the Solicitor General,
Messrs. Arturo A. Alafriz, Enrique M. Fernando, Vicente Abad Santos,
Carlos A. Barrios, Vicente del Rosario, Juan de Blancaflor, Mamerto V.
Gonzales, and Roman Ozaeta against it, aside from the memoranda of
counsel for petitioners, Messrs. Jose M. Aruego, M.H. de Joya, Miguel R.
Cornejo and Antonio Enrile Inton, and of petitioners Cabrera, Macasaet
and Galema themselves, has greatly helped us in this task. The legal
researchers of the court have exhausted almost all Philippine and
American jurisprudence on the matter. The question has been the object
of intense deliberation for a long time by the Tribunal, and finally, after the
voting, the preparation of the majority opinion was assigned to a new
member in order to place it as humanly as possible above all suspicion of
prejudice or partiality.
Republic Act No. 972 has for its object, according to its author, to admit to
the Bar, those candidates who suffered from insufficiency of reading
materials and inadequate preparation. Quoting a portion of the
Explanatory Note of the proposed bill, its author Honorable Senator Pablo
Angeles David stated:
The reason for relaxing the standard 75 per cent passing grade is
the tremendous handicap which students during the years
immediately after the Japanese occupation has to overcome such
as the insufficiency of reading materials and the inadequacy of
the preparation of students who took up law soon after the
liberation.
Of the 9,675 candidates who took the examinations from 1946 to 1952,
5,236 passed. And now it is claimed that in addition 604 candidates be
admitted (which in reality total 1,094), because they suffered from
"insufficiency of reading materials" and of "inadequacy of preparation."
By its declared objective, the law is contrary to public interest because it
qualifies 1,094 law graduates who confessedly had inadequate
preparation for the practice of the profession, as was exactly found by
this Tribunal in the aforesaid examinations. The public interest demands
of legal profession adequate preparation and efficiency, precisely more
so as legal problem evolved by the times become more difficult. An
adequate legal preparation is one of the vital requisites for the practice of
law that should be developed constantly and maintained firmly. To the
legal profession is entrusted the protection of property, life, honor and
civil liberties. To approve officially of those inadequately prepared
individuals to dedicate themselves to such a delicate mission is to create
a serious social danger. Moreover, the statement that there was an
insufficiency of legal reading materials is grossly exaggerated. There
were abundant materials. Decisions of this court alone in mimeographed
copies were made available to the public during those years and private
enterprises had also published them in monthly magazines and annual
digests. The Official Gazette had been published continuously. Books
and magazines published abroad have entered without restriction since
1945. Many law books, some even with revised and enlarged editions
have been printed locally during those periods. A new set of Philippine
Reports began to be published since 1946, which continued to be
supplemented by the addition of new volumes. Those are facts of public
knowledge.
Notwithstanding all these, if the law in question is valid, it has to be
enforced.
20
The question is not new in its fundamental aspect or from the point of
view of applicable principles, but the resolution of the question would
have been easier had an identical case of similar background been
picked out from the jurisprudence we daily consult. Is there any
precedent in the long Anglo-Saxon legal history, from which has been
directly derived the judicial system established here with its lofty ideals by
the Congress of the United States, and which we have preserved and
attempted to improve, or in our contemporaneous judicial history of more
than half a century? From the citations of those defending the law, we
can not find a case in which the validity of a similar law had been
sustained, while those against its validity cite, among others, the cases of
Day (In re Day, 54 NE 646), of Cannon (State vs. Cannon, 240 NW, 441),
the opinion of the Supreme Court of Massachusetts in 1932 (81 ALR
1061), of Guariña (24 Phil., 37), aside from the opinion of the President
which is expressed in his vote of the original bill and which the
postponement of the contested law respects.
This law has no precedent in its favor. When similar laws in other
countries had been promulgated, the judiciary immediately declared them
without force or effect. It is not within our power to offer a precedent to
uphold the disputed law.
To be exact, we ought to state here that we have examined carefully the
case that has been cited to us as a favorable precedent of the law — that
of Cooper (22 NY, 81), where the Court of Appeals of New York revoked
the decision of the Supreme court of that State, denying the petition of
Cooper to be admitted to the practice of law under the provisions of a
statute concerning the school of law of Columbia College promulgated on
April 7, 1860, which was declared by the Court of Appeals to be
consistent with the Constitution of the state of New York.
It appears that the Constitution of New York at that time provided:
They (i.e., the judges) shall not hold any other office of public
trust. All votes for either of them for any elective office except that
of the Court of Appeals, given by the Legislature or the people,
shall be void. They shall not exercise any power of appointment
to public office. Any male citizen of the age of twenty-one years,
of good moral character, and who possesses the requisite
qualifications of learning and ability, shall be entitled to admission
to practice in all the courts of this State. (p. 93).
According to the Court of Appeals, the object of the constitutional precept
is as follows:
Attorneys, solicitors, etc., were public officers; the power of
appointing them had previously rested with the judges, and this
was the principal appointing power which they possessed. The
convention was evidently dissatisfied with the manner in which
this power had been exercised, and with the restrictions which the
judges had imposed upon admission to practice before them. The
prohibitory clause in the section quoted was aimed directly at this
power, and the insertion of the provision" expecting the admission
of attorneys, in this particular section of the Constitution, evidently
arose from its connection with the object of this prohibitory
clause. There is nothing indicative of confidence in the courts or
of a disposition to preserve any portion of their power over this
subject, unless the Supreme Court is right in the inference it
draws from the use of the word `admission' in the action referred
to. It is urged that the admission spoken of must be by the court;
that to admit means to grant leave, and that the power of granting
necessarily implies the power of refusing, and of course the right
of determining whether the applicant possesses the requisite
qualifications to entitle him to admission.
These positions may all be conceded, without affecting the
validity of the act. (p. 93.)
Now, with respect to the law of April 7, 1860, the decision seems to
indicate that it provided that the possession of a diploma of the school of
law of Columbia College conferring the degree of Bachelor of Laws was
evidence of the legal qualifications that the constitution required of
applicants for admission to the Bar. The decision does not however quote
the text of the law, which we cannot find in any public or accessible
private library in the country.
In the case of Cooper, supra, to make the law consistent with the
Constitution of New York, the Court of Appeals said of the object of the
law:
The motive for passing the act in question is apparent. Columbia
College being an institution of established reputation, and having
a law department under the charge of able professors, the
students in which department were not only subjected to a formal
examination by the law committee of the institution, but to a
21
 certain definite period of study before being entitled to a diploma
of being graduates, the Legislature evidently, and no doubt justly,
considered this examination, together with the preliminary study
required by the act, as fully equivalent as a test of legal
requirements, to the ordinary examination by the court; and as
rendering the latter examination, to which no definite period of
preliminary study was essential, unnecessary and burdensome.
The act was obviously passed with reference to the learning and
ability of the applicant, and for the mere purpose of substituting
the examination by the law committee of the college for that of the
court. It could have had no other object, and hence no greater
scope should be given to its provisions. We cannot suppose that
the Legislature designed entirely to dispense with the plain and
explicit requirements of the Constitution; and the act contains
nothing whatever to indicate an intention that the authorities of
the college should inquire as to the age, citizenship, etc., of the
students before granting a diploma. The only rational
interpretation of which the act admits is, that it was intended to
make the college diploma competent evidence as to the legal
attainments of the applicant, and nothing else. To this extent
alone it operates as a modification of pre-existing statutes, and it
is to be read in connection with these statutes and with the
Constitution itself in order to determine the present condition of
the law on the subject. (p.89)
xxx xxx xxx
The Legislature has not taken from the court its jurisdiction over
the question of admission, that has simply prescribed what shall
be competent evidence in certain cases upon that question.
(p.93)
From the foregoing, the complete inapplicability of the case of Cooper
with that at bar may be clearly seen. Please note only the following
distinctions:
(1) The law of New York does not require that any candidate of Columbia
College who failed in the bar examinations be admitted to the practice of
law.
(2) The law of New York according to the very decision of Cooper, has
not taken from the court its jurisdiction over the question of admission of
attorney at law; in effect, it does not decree the admission of any lawyer.
(3) The Constitution of New York at that time and that of the Philippines
are entirely different on the matter of admission of the practice of law.
In the judicial system from which ours has been evolved, the admission,
suspension, disbarment and reinstatement of attorneys at law in the
practice of the profession and their supervision have been disputably a
judicial function and responsibility. Because of this attribute, its
continuous and zealous possession and exercise by the judicial power
have been demonstrated during more than six centuries, which certainly
"constitutes the most solid of titles." Even considering the power granted
to Congress by our Constitution to repeal, alter supplement the rules
promulgated by this Court regarding the admission to the practice of law,
to our judgment and proposition that the admission, suspension,
disbarment and reinstatement of the attorneys at law is a legislative
function, properly belonging to Congress, is unacceptable. The function
requires (1) previously established rules and principles, (2) concrete
facts, whether past or present, affecting determinate individuals. and (3)
decision as to whether these facts are governed by the rules and
principles; in effect, a judicial function of the highest degree. And it
becomes more undisputably judicial, and not legislative, if previous
judicial resolutions on the petitions of these same individuals are
attempted to be revoked or modified.
We have said that in the judicial system from which ours has been
derived, the act of admitting, suspending, disbarring and reinstating
attorneys at law in the practice of the profession is concededly judicial. A
comprehensive and conscientious study of this matter had been
undertaken in the case of State vs. Cannon (1932) 240 NW 441, in which
the validity of a legislative enactment providing that Cannon be permitted
to practice before the courts was discussed. From the text of this decision
we quote the following paragraphs:
This statute presents an assertion of legislative power without
parallel in the history of the English speaking people so far as we
have been able to ascertain. There has been much uncertainty as
to the extent of the power of the Legislature to prescribe the
ultimate qualifications of attorney at law has been expressly
committed to the courts, and the act of admission has always
been regarded as a judicial function. This act purports to
22
constitute Mr. Cannon an attorney at law, and in this respect it
stands alone as an assertion of legislative power. (p. 444)
Under the Constitution all legislative power is vested in a Senate
and Assembly. (Section 1, art. 4.) In so far as the prescribing of
qualifications for admission to the bar are legislative in character,
the Legislature is acting within its constitutional authority when it
sets up and prescribes such qualifications. (p. 444)
But when the Legislature has prescribed those qualifications
which in its judgment will serve the purpose of legitimate
legislative solicitude, is the power of the court to impose other
and further exactions and qualifications foreclosed or exhausted?
(p. 444)
Under our Constitution the judicial and legislative departments
are distinct, independent, and coordinate branches of the
government. Neither branch enjoys all the powers of sovereignty
which properly belongs to its department. Neither department
should so act as to embarrass the other in the discharge of its
respective functions. That was the scheme and thought of the
people setting upon the form of government under which we
exist. State vs. Hastings, 10 Wis., 525; Attorney General ex rel.
Bashford vs. Barstow, 4 Wis., 567. (p. 445)
The judicial department of government is responsible for the
plane upon which the administration of justice is maintained. Its
responsibility in this respect is exclusive. By committing a portion
of the powers of sovereignty to the judicial department of our
state government, under 42a scheme which it was supposed
rendered it immune from embarrassment or interference by any
other department of government, the courts cannot escape
responsibility fir the manner in which the powers of sovereignty
thus committed to the judicial department are exercised. (p. 445)
The relation at the bar to the courts is a peculiar and intimate
relationship. The bar is an attache of the courts. The quality of
justice dispense by the courts depends in no small degree upon
the integrity of its bar. An unfaithful bar may easily bring scandal
and reproach to the administration of justice and bring the courts
themselves into disrepute. (p.445)
Through all time courts have exercised a direct and severe
supervision over their bars, at least in the English speaking
countries. (p. 445)
After explaining the history of the case, the Court ends thus:
Our conclusion may be epitomized as follows: For more than six
centuries prior to the adoption of our Constitution, the courts of
England, concededly subordinate to Parliament since the
Revolution of 1688, had exercise the right of determining who
should be admitted to the practice of law, which, as was said in
Matter of the Sergeant's at Law, 6 Bingham's New Cases 235,
"constitutes the most solid of all titles." If the courts and judicial
power be regarded as an entity, the power to determine who
should be admitted to practice law is a constituent element of that
entity. It may be difficult to isolate that element and say with
assurance that it is either a part of the inherent power of the
court, or an essential element of the judicial power exercised by
the court, but that it is a power belonging to the judicial entity and
made of not only a sovereign institution, but made of it a separate
independent, and coordinate branch of the government. They
took this institution along with the power traditionally exercise to
determine who should constitute its attorney at law. There is no
express provision in the Constitution which indicates an intent
that this traditional power of the judicial department should in any
manner be subject to legislative control. Perhaps the dominant
thought of the framers of our constitution was to make the three
great departments of government separate and independent of
one another. The idea that the Legislature might embarrass the
judicial department by prescribing inadequate qualifications for
attorneys at law is inconsistent with the dominant purpose of
making the judicial independent of the legislative department, and
such a purpose should not be inferred in the absence of express
constitutional provisions. While the legislature may legislate with
respect to the qualifications of attorneys, but is incidental merely
to its general and unquestioned power to protect the public
interest. When it does legislate a fixing a standard of
qualifications required of attorneys at law in order that public
interests may be protected, such qualifications do not constitute
only a minimum standard and limit the class from which the court
must make its selection. Such legislative qualifications do not
constitute the ultimate qualifications beyond which the court
cannot go in fixing additional qualifications deemed necessary by
the course of the proper administration of judicial functions. There
23
 is no legislative power to compel courts to admit to their bars
persons deemed by them unfit to exercise the prerogatives of an
attorney at law. (p. 450)
Furthermore, it is an unlawful attempt to exercise the power of
appointment. It is quite likely true that the legislature may
exercise the power of appointment when it is in pursuance of a
legislative functions. However, the authorities are well-nigh
unanimous that the power to admit attorneys to the practice of
law is a judicial function. In all of the states, except New Jersey
(In re Reisch, 83 N.J. Eq. 82, 90 A. 12), so far as our investigation
reveals, attorneys receive their formal license to practice law by
their admission as members of the bar of the court so admitting.
Cor. Jur. 572; Ex parte Secombre, 19 How. 9,15 L. Ed. 565; Ex
parteGarland, 4 Wall. 333, 18 L. Ed. 366; Randall vs. Brigham, 7
Wall. 53, 19 L. Ed. 285; Hanson vs. Grattan, 48 Kan, 843, 115 P.
646, 34 L.R.A. 519; Danforth vs. Egan, 23 S. D. 43, 119 N.W.
1021, 130 Am. St. Rep. 1030, 20 Ann. Cas. 413.
The power of admitting an attorney to practice having been
perpetually exercised by the courts, it having been so generally
held that the act of the court in admitting an attorney to practice is
the judgment of the court, and an attempt as this on the part of
the Legislature to confer such right upon any one being most
exceedingly uncommon, it seems clear that the licensing of an
attorney is and always has been a purely judicial function, no
matter where the power to determine the qualifications may
reside. (p. 451)
In that same year of 1932, the Supreme Court of Massachusetts, in
answering a consultation of the Senate of that State, 180 NE 725, said:
It is indispensible to the administration of justice and to
interpretation of the laws that there be members of the bar of
sufficient ability, adequate learning and sound moral character.
This arises from the need of enlightened assistance to the
honest, and restraining authority over the knavish, litigant. It is
highly important, also that the public be protected from
incompetent and vicious practitioners, whose opportunity for
doing mischief is wide. It was said by Cardoz, C.L., in People ex
rel. Karlin vs. Culkin, 242 N.Y. 456, 470, 471, 162 N.E. 487, 489,
60 A.L.R. 851: "Membership in the bar is a privilege burden with
conditions." One is admitted to the bar "for something more than
private gain." He becomes an "officer of the court", and ,like the
court itself, an instrument or agency to advance the end of justice.
His cooperation with the court is due "whenever justice would be
imperiled if cooperation was withheld." Without such attorneys at
law the judicial department of government would be hampered in
the performance of its duties. That has been the history of
attorneys under the common law, both in this country and
England. Admission to practice as an attorney at law is almost
without exception conceded to be a judicial function. Petition to
that end is filed in courts, as are other proceedings invoking
judicial action. Admission to the bar is accomplish and made
open and notorious by a decision of the court entered upon its
records. The establishment by the Constitution of the judicial
department conferred authority necessary to the exercise of its
powers as a coordinate department of government. It is an
inherent power of such a department of government ultimately to
determine the qualifications of those to be admitted to practice in
its courts, for assisting in its work, and to protect itself in this
respect from the unfit, those lacking in sufficient learning, and
those not possessing good moral character. Chief Justice Taney
stated succinctly and with finality in Ex parte Secombe, 19 How.
9, 13, 15 L. Ed. 565, "It has been well settled, by the rules and
practice of common-law courts, that it rests exclusively with the
court to determine who is qualified to become one of its officers,
as an attorney and counselor, and for what cause he ought to be
removed." (p.727)
In the case of Day and others who collectively filed a petition to secure
license to practice the legal profession by virtue of a law of state (In
re Day, 54 NE 646), the court said in part:
In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366, the
court, holding the test oath for attorneys to be unconstitutional,
explained the nature of the attorney's office as follows: "They are
officers of the court, admitted as such by its order, upon evidence
of their possessing sufficient legal learning and fair private
character. It has always been the general practice in this country
to obtain this evidence by an examination of the parties. In this
court the fact of the admission of such officers in the highest court
of the states to which they, respectively, belong for, three years
preceding their application, is regarded as sufficient evidence of
the possession of the requisite legal learning, and the statement
of counsel moving their admission sufficient evidence that their
private and professional character is fair. The order of admission
is the judgment of the court that the parties possess the requisite
24
 qualifications as attorneys and counselors, and are entitled to
appear as such and conduct causes therein. From its entry the
parties become officers of the court, and are responsible to it for
professional misconduct. They hold their office during good
behavior, and can only be deprived of it for misconduct
ascertained and declared by the judgment of the court after
opportunity to be heard has been afforded. Ex parte Hoyfron,
admission or their exclusion is not the exercise of a mere
ministerial power. It is the exercise of judicial power, and has
been so held in numerous cases. It was so held by the court of
appeals of New York in the matter of the application of Cooper for
admission. Re Cooper 22 N. Y. 81. "Attorneys and Counselors",
said that court, "are not only officers of the court, but officers
whose duties relate almost exclusively to proceedings of a judicial
nature; and hence their appointment may, with propriety, be
entrusted to the court, and the latter, in performing his duty, may
very justly considered as engaged in the exercise of their
appropriate judicial functions." (pp. 650-651).
We quote from other cases, the following pertinent portions:
Admission to practice of law is almost without exception
conceded everywhere to be the exercise of a judicial function,
and this opinion need not be burdened with citations in this point.
Admission to practice have also been held to be the exercise of
one of the inherent powers of the court. — Re Bruen, 102 Wash.
472, 172 Pac. 906.
Admission to the practice of law is the exercise of a judicial
function, and is an inherent power of the court. — A.C.
Brydonjack, vs. State Bar of California, 281 Pac. 1018; See
Annotation on Power of Legislature respecting admission to bar,
65, A.L. R. 1512.
On this matter there is certainly a clear distinction between the functions
of the judicial and legislative departments of the government.
The distinction between the functions of the legislative and the
judicial departments is that it is the province of the legislature to
establish rules that shall regulate and govern in matters of
transactions occurring subsequent to the legislative action, while
the judiciary determines rights and obligations with reference to
transactions that are past or conditions that exist at the time of
the exercise of judicial power, and the distinction is a vital one
and not subject to alteration or change either by legislative action
or by judicial decree.
The judiciary cannot consent that its province shall be invaded by
either of the other departments of the government. — 16 C.J.S.,
Constitutional Law, p. 229.
If the legislature cannot thus indirectly control the action of the
courts by requiring of them construction of the law according to its
own views, it is very plain it cannot do so directly, by settling
aside their judgments, compelling them to grant new trials,
ordering the discharge of offenders, or directing what particular
steps shall be taken in the progress of a judicial inquiry. —
Cooley's Constitutional Limitations, 192.
In decreeing the bar candidates who obtained in the bar examinations of
1946 to 1952, a general average of 70 per cent without falling below 50
per cent in any subject, be admitted in mass to the practice of law, the
disputed law is not a legislation; it is a judgment — a judgment revoking
those promulgated by this Court during the aforecited year affecting the
bar candidates concerned; and although this Court certainly can revoke
these judgments even now, for justifiable reasons, it is no less certain
that only this Court, and not the legislative nor executive department, that
may be so. Any attempt on the part of any of these departments would be
a clear usurpation of its functions, as is the case with the law in question.
That the Constitution has conferred on Congress the power to repeal,
alter or supplement the rule promulgated by this Tribunal, concerning the
admission to the practice of law, is no valid argument. Section 13, article
VIII of the Constitution provides:
Section 13. The Supreme Court shall have the power to
promulgate rules concerning pleading, practice, and procedure in
all courts, and the admission to the practice of law. Said rules
shall be uniform for all courts of the same grade and shall not
diminish, increase or modify substantive rights. The existing laws
on pleading, practice and procedure are hereby repealed as
statutes, and are declared Rules of Court, subject to the power of
the Supreme Court to alter and modify the same. The Congress
shall have the power to repeal, alter, or supplement the rules
concerning pleading, practice, and procedure, and the admission
25
 to the practice of law in the Philippines. — Constitution of the other in attaining the establishment of a Bar that would respond to the
Philippines, Art. VIII, sec. 13. increasing and exacting necessities of the administration of justice.

It will be noted that the Constitution has not conferred on Congress and The case of Guariña (1913) 24 Phil., 37, illustrates our criterion. Guariña
this Tribunal equal responsibilities concerning the admission to the took examination and failed by a few points to obtain the general
practice of law. the primary power and responsibility which the average. A recently enacted law provided that one who had been
Constitution recognizes continue to reside in this Court. Had Congress appointed to the position of Fiscal may be admitted to the practice of law
found that this Court has not promulgated any rule on the matter, it would without a previous examination. The Government appointed Guariña and
have nothing over which to exercise the power granted to it. Congress he discharged the duties of Fiscal in a remote province. This tribunal
may repeal, alter and supplement the rules promulgated by this Court, refused to give his license without previous examinations. The court said:
but the authority and responsibility over the admission, suspension,
disbarment and reinstatement of attorneys at law and their supervision Relying upon the provisions of section 2 of Act No. 1597, the
remain vested in the Supreme Court. The power to repeal, alter and applicant in this case seeks admission to the bar, without taking
supplement the rules does not signify nor permit that Congress substitute the prescribed examination, on the ground that he holds the office
or take the place of this Tribunal in the exercise of its primary power on of provincial fiscal for the Province of Batanes.
the matter. The Constitution does not say nor mean that Congress may
admit, suspend, disbar or reinstate directly attorneys at law, or a Section 2 of Act No. 1597, enacted February 28, 1907, is as
determinate group of individuals to the practice of law. Its power is limited follows:
to repeal, modify or supplement the existing rules on the matter, if
according to its judgment the need for a better service of the legal
Sec. 2. Paragraph one of section thirteen of Act Numbered One
profession requires it. But this power does not relieve this Court of its
Hundred and ninety, entitled "An Act providing a Code of
responsibility to admit, suspend, disbar and reinstate attorneys at law and
Procedure in Civil Actions and Special Proceedings in the
supervise the practice of the legal profession.
Philippine Islands," is hereby amended to read as follows:
Being coordinate and independent branches, the power to promulgate
1. Those who have been duly licensed under the laws and orders
and enforce rules for the admission to the practice of law and the
of the Islands under the sovereignty of Spain or of the United
concurrent power to repeal, alter and supplement them may and should
States and are in good and regular standing as members of the
be exercised with the respect that each owes to the other, giving careful
bar of the Philippine Islands at the time of the adoption of this
consideration to the responsibility which the nature of each department
code; Provided, That any person who, prior to the passage of this
requires. These powers have existed together for centuries without
act, or at any time thereafter, shall have held, under the authority
diminution on each part; the harmonious delimitation being found in that
of the United States, the position of justice of the Supreme Court,
the legislature may and should examine if the existing rules on the
judge of the Court of First Instance, or judge or associate judge of
admission to the Bar respond to the demands which public interest
the Court of Land Registration, of the Philippine Islands, or the
requires of a Bar endowed with high virtues, culture, training and
position of Attorney General, Solicitor General, Assistant Attorney
responsibility. The legislature may, by means of appeal, amendment or
General, assistant attorney in the office of the Attorney General,
supplemental rules, fill up any deficiency that it may find, and the judicial
prosecuting attorney for the City of Manila, city attorney of Manila,
power, which has the inherent responsibility for a good and efficient
assistant city attorney of Manila, provincial fiscal, attorney for the
administration of justice and the supervision of the practice of the legal
Moro Province, or assistant attorney for the Moro Province, may
profession, should consider these reforms as the minimum standards for
be licensed to practice law in the courts of the Philippine Islands
the elevation of the profession, and see to it that with these reforms the
without an examination, upon motion before the Supreme Court
lofty objective that is desired in the exercise of its traditional duty of
and establishing such fact to the satisfaction of said court.
admitting, suspending, disbarring and reinstating attorneys at law is
realized. They are powers which, exercise within their proper
constitutional limits, are not repugnant, but rather complementary to each

26
 The records of this court disclose that on a former occasion this
appellant took, and failed to pass the prescribed examination.
The report of the examining board, dated March 23, 1907, shows
that he received an average of only 71 per cent in the various
branches of legal learning upon which he was examined, thus
falling four points short of the required percentage of 75. We
would be delinquent in the performance of our duty to the public
and to the bar, if, in the face of this affirmative indication of the
deficiency of the applicant in the required qualifications of
learning in the law at the time when he presented his former
application for admission to the bar, we should grant him license
to practice law in the courts of these Islands, without first
satisfying ourselves that despite his failure to pass the
examination on that occasion, he now "possesses the necessary
qualifications of learning and ability."
But it is contented that under the provisions of the above-cited
statute the applicant is entitled as of right to be admitted to the
bar without taking the prescribed examination "upon motion
before the Supreme Court" accompanied by satisfactory proof
that he has held and now holds the office of provincial fiscal of the
Province of Batanes. It is urged that having in mind the object
which the legislator apparently sought to attain in enacting the
above-cited amendment to the earlier statute, and in view of the
context generally and especially of the fact that the amendment
was inserted as a proviso in that section of the original Act which
specifically provides for the admission of certain candidates
without examination. It is contented that this mandatory
construction is imperatively required in order to give effect to the
apparent intention of the legislator, and to the candidate's
claim de jure to have the power exercised.
And after copying article 9 of Act of July 1, 1902 of the Congress of the
United States, articles 2, 16 and 17 of Act No. 136, and articles 13 to 16
of Act 190, the Court continued:
Manifestly, the jurisdiction thus conferred upon this court by the
commission and confirmed to it by the Act of Congress would be
limited and restricted, and in a case such as that under
consideration wholly destroyed, by giving the word "may," as
used in the above citation from Act of Congress of July 1, 1902,
or of any Act of Congress prescribing, defining or limiting the
power conferred upon the commission is to that extent invalid and
void, as transcending its rightful limits and authority.
Speaking on the application of the law to those who were appointed to
the positions enumerated, and with particular emphasis in the case of
Guariña, the Court held:
In the various cases wherein applications for the admission to the
bar under the provisions of this statute have been considered
heretofore, we have accepted the fact that such appointments
had been made as satisfactory evidence of the qualifications of
the applicant. But in all of those cases we had reason to believe
that the applicants had been practicing attorneys prior to the date
of their appointment.
In the case under consideration, however, it affirmatively appears
that the applicant was not and never had been practicing attorney
in this or any other jurisdiction prior to the date of his appointment
as provincial fiscal, and it further affirmatively appears that he
was deficient in the required qualifications at the time when he
last applied for admission to the bar.
In the light of this affirmative proof of his defieciency on that
occasion, we do not think that his appointment to the office of
provincial fiscal is in itself satisfactory proof if his possession of
the necessary qualifications of learning and ability. We conclude
therefore that this application for license to practice in the courts
of the Philippines, should be denied.
In view, however, of the fact that when he took the examination
he fell only four points short of the necessary grade to entitle him
to a license to practice; and in view also of the fact that since that
time he has held the responsible office of the governor of the
Province of Sorsogon and presumably gave evidence of such
marked ability in the performance of the duties of that office that
the Chief Executive, with the consent and approval of the
Philippine Commission, sought to retain him in the Government
service by appointing him to the office of provincial fiscal, we think
we would be justified under the above-cited provisions of Act No.
1597 in waiving in his case the ordinary examination prescribed
by general rule, provided he offers satisfactory evidence of his
proficiency in a special examination which will be given him by a
committee of the court upon his application therefor, without
prejudice to his right, if he desires so to do, to present himself at
any of the ordinary examinations prescribed by general rule. —
(In re Guariña, pp. 48-49.)
27
It is obvious, therefore, that the ultimate power to grant license for the
practice of law belongs exclusively to this Court, and the law passed by
Congress on the matter is of permissive character, or as other authorities
say, merely to fix the minimum conditions for the license.
The law in question, like those in the case of Day and Cannon, has been
found also to suffer from the fatal defect of being a class legislation, and
that if it has intended to make a classification, it is arbitrary and
unreasonable.
In the case of Day, a law enacted on February 21, 1899 required of the
Supreme Court, until December 31 of that year, to grant license for the
practice of law to those students who began studying before November 4,
1897, and had studied for two years and presented a diploma issued by a
school of law, or to those who had studied in a law office and would pass
an examination, or to those who had studied for three years if they
commenced their studies after the aforementioned date. The Supreme
Court declared that this law was unconstitutional being, among others, a
class legislation. The Court said:
This is an application to this court for admission to the bar of this
state by virtue of diplomas from law schools issued to the
applicants. The act of the general assembly passed in 1899,
under which the application is made, is entitled "An act to amend
section 1 of an act entitled "An act to revise the law in relation to
attorneys and counselors," approved March 28, 1884, in force
July 1, 1874." The amendment, so far as it appears in the
enacting clause, consists in the addition to the section of the
following: "And every application for a license who shall comply
with the rules of the supreme court in regard to admission to the
bar in force at the time such applicant commend the study of law,
either in a law or office or a law school or college, shall be
granted a license under this act notwithstanding any subsequent
changes in said rules". — In re Day et al, 54 N.Y., p. 646.
. . . After said provision there is a double proviso, one branch of
which is that up to December 31, 1899, this court shall grant a
license of admittance to the bar to the holder of every diploma
regularly issued by any law school regularly organized under the
laws of this state, whose regular course of law studies is two
years, and requiring an attendance by the student of at least 36
weeks in each of such years, and showing that the student began
the study of law prior to November 4, 1897, and accompanied
with the usual proofs of good moral character. The other branch
of the proviso is that any student who has studied law for two
years in a law office, or part of such time in a law office, "and part
in the aforesaid law school," and whose course of study began
prior to November 4, 1897, shall be admitted upon a satisfactory
examination by the examining board in the branches now
required by the rules of this court. If the right to admission exists
at all, it is by virtue of the proviso, which, it is claimed, confers
substantial rights and privileges upon the persons named therein,
and establishes rules of legislative creation for their admission to
the bar. (p. 647.)
Considering the proviso, however, as an enactment, it is clearly a
special legislation, prohibited by the constitution, and invalid as
such. If the legislature had any right to admit attorneys to practice
in the courts and take part in the administration of justice, and
could prescribe the character of evidence which should be
received by the court as conclusive of the requisite learning and
ability of persons to practice law, it could only be done by a
general law, persons or classes of persons. Const. art 4, section
2. The right to practice law is a privilege, and a license for that
purpose makes the holder an officer of the court, and confers
upon him the right to appear for litigants, to argue causes, and to
collect fees therefor, and creates certain exemptions, such as
from jury services and arrest on civil process while attending
court. The law conferring such privileges must be general in its
operation. No doubt the legislature, in framing an enactment for
that purpose, may classify persons so long as the law
establishing classes in general, and has some reasonable
relation to the end sought. There must be some difference which
furnishes a reasonable basis for different one, having no just
relation to the subject of the legislation. Braceville Coal Co. vs.
People, 147 Ill. 66, 35 N.E. 62; Ritchie vs. People, 155 Ill. 98, 40
N.E. 454; Railroad Co. vs. Ellis, 165 U.S. 150, 17 Sup. Ct. 255.
The length of time a physician has practiced, and the skill
acquired by experience, may furnish a basis for classification
(Williams vs. People 121 Ill. 48, II N.E. 881); but the place where
such physician has resided and practiced his profession cannot
furnish such basis, and is an arbitrary discrimination, making an
enactment based upon it void (State vs. Pennyeor, 65 N.E. 113,
18 Atl. 878). Here the legislature undertakes to say what shall
serve as a test of fitness for the profession of the law, and plainly,
any classification must have some reference to learning,
character, or ability to engage in such practice. The proviso is
28
 limited, first, to a class of persons who began the study of law
prior to November 4, 1897. This class is subdivided into two
classes — First, those presenting diplomas issued by any law
school of this state before December 31, 1899; and, second,
those who studied law for the period of two years in a law office,
or part of the time in a law school and part in a law office, who are
to be admitted upon examination in the subjects specified in the
present rules of this court, and as to this latter subdivision there
seems to be no limit of time for making application for admission.
As to both classes, the conditions of the rules are dispensed with,
and as between the two different conditions and limits of time are
fixed. No course of study is prescribed for the law school, but a
diploma granted upon the completion of any sort of course its
managers may prescribe is made all-sufficient. Can there be
anything with relation to the qualifications or fitness of persons to
practice law resting upon the mere date of November 4, 1897,
which will furnish a basis of classification. Plainly not. Those who
began the study of law November 4th could qualify themselves to
practice in two years as well as those who began on the 3rd. The
classes named in the proviso need spend only two years in study,
while those who commenced the next day must spend three
years, although they would complete two years before the time
limit. The one who commenced on the 3rd. If possessed of a
diploma, is to be admitted without examination before December
31, 1899, and without any prescribed course of study, while as to
the other the prescribed course must be pursued, and the
diploma is utterly useless. Such classification cannot rest upon
any natural reason, or bear any just relation to the subject sought,
and none is suggested. The proviso is for the sole purpose of
bestowing privileges upon certain defined persons. (pp. 647-648.)
In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441,
where the legislature attempted by law to reinstate Cannon to the
practice of law, the court also held with regards to its aspect of being a
class legislation:
But the statute is invalid for another reason. If it be granted that
the legislature has power to prescribe ultimately and definitely the
qualifications upon which courts must admit and license those
applying as attorneys at law, that power can not be exercised in
the manner here attempted. That power must be exercised
through general laws which will apply to all alike and accord equal
opportunity to all. Speaking of the right of the Legislature to exact
qualifications of those desiring to pursue chosen callings, Mr.
Justice Field in the case of Dent. vs. West Virginia, 129 U.S. 114,
121, 9 S. Ct. 232, 233, 32 L. Ed. 626, said: "It is undoubtedly the
right of every citizen of the United States to follow any lawful
calling, business or profession he may choose, subject only to
such restrictions as are imposed upon all persons of like age,
sex, and condition." This right may in many respects be
considered as a distinguishing feature of our republican
institutions. Here all vocations are all open to every one on like
conditions. All may be pursued as sources of livelihood, some
requiring years of study and great learning for their successful
prosecution. The interest, or, as it is sometimes termed, the
"estate" acquired in them — that is, the right to continue their
prosecution — is often of great value to the possessors and
cannot be arbitrarily taken from them, any more than their real or
personal property can be thus taken. It is fundamental under our
system of government that all similarly situated and possessing
equal qualifications shall enjoy equal opportunities. Even statutes
regulating the practice of medicine, requiring medications to
establish the possession on the part of the application of his
proper qualifications before he may be licensed to practice, have
been challenged, and courts have seriously considered whether
the exemption from such examinations of those practicing in the
state at the time of the enactment of the law rendered such law
unconstitutional because of infringement upon this general
principle. State vs. Thomas Call, 121 N.C. 643, 28 S.E. 517; see,
also, The State ex rel. Winkler vs. Rosenberg, 101 Wis. 172, 76
N.W. 345; State vs. Whitcom, 122 Wis. 110, 99 N.W. 468.
This law singles out Mr. Cannon and assumes to confer upon him
the right to practice law and to constitute him an officer of this
Court as a mere matter of legislative grace or favor. It is not
material that he had once established his right to practice law and
that one time he possessed the requisite learning and other
qualifications to entitle him to that right. That fact in no matter
affect the power of the Legislature to select from the great body of
the public an individual upon whom it would confer its favors.
A statute of the state of Minnesota (Laws 1929, c. 424)
commanded the Supreme Court to admit to the practice of law
without examination, all who had served in the military or naval
forces of the United States during the World War and received a
honorable discharge therefrom and who (were disabled therein or
thereby within the purview of the Act of Congress approved June
7th, 1924, known as "World War Veteran's Act, 1924 and whose
29
 disability is rated at least ten per cent thereunder at the time of
the passage of this Act." This Act was held |unconstitutional on
the ground that it clearly violated the quality clauses of the
constitution of that state. In re Application of George W.
Humphrey, 178 Minn. 331, 227 N.W. 179.
A good summary of a classification constitutionally acceptable is
explained in 12 Am. Jur. 151-153 as follows:
The general rule is well settled by unanimity of the authorities that
a classification to be valid must rest upon material differences
between the person included in it and those excluded and,
furthermore, must be based upon substantial distinctions. As the
rule has sometimes avoided the constitutional prohibition, must
be founded upon pertinent and real differences, as distinguished
from irrelevant and artificial ones. Therefore, any law that is made
applicable to one class of citizens only must be based on some
substantial difference between the situation of that class and
other individuals to which it does not apply and must rest on
some reason on which it can be defended. In other words, there
must be such a difference between the situation and
circumstances of all the members of the class and the situation
and circumstances of all other members of the state in relation to
the subjects of the discriminatory legislation as presents a just
and natural cause for the difference made in their liabilities and
burdens and in their rights and privileges. A law is not general
because it operates on all within a clause unless there is a
substantial reason why it is made to operate on that class only,
and not generally on all. (12 Am. Jur. pp. 151-153.)
Pursuant to the law in question, those who, without a grade below 50 per
cent in any subject, have obtained a general average of 69.5 per cent in
the bar examinations in 1946 to 1951, 70.5 per cent in 1952, 71.5 per
cent in 1953, and those will obtain 72.5 per cent in 1954, and 73.5 per
cent in 1955, will be permitted to take and subscribe the corresponding
oath of office as members of the Bar, notwithstanding that the rules
require a minimum general average of 75 per cent, which has been
invariably followed since 1950. Is there any motive of the nature indicated
by the abovementioned authorities, for this classification ? If there is
none, and none has been given, then the classification is fatally defective.
It was indicated that those who failed in 1944, 1941 or the years before,
with the general average indicated, were not included because the
Tribunal has no record of the unsuccessful candidates of those years.
This fact does not justify the unexplained classification of unsuccessful
candidates by years, from 1946-1951, 1952, 1953, 1954, 1955. Neither is
the exclusion of those who failed before said years under the same
conditions justified. The fact that this Court has no record of examinations
prior to 1946 does not signify that no one concerned may prove by some
other means his right to an equal consideration.
To defend the disputed law from being declared unconstitutional on
account of its retroactivity, it is argued that it is curative, and that in such
form it is constitutional. What does Rep. Act 972 intend to cure ? Only
from 1946 to 1949 were there cases in which the Tribunal permitted
admission to the bar of candidates who did not obtain the general
average of 75 per cent: in 1946 those who obtained only 72 per cent; in
the 1947 and those who had 69 per cent or more; in 1948, 70 per cent
and in 1949, 74 per cent; and in 1950 to 1953, those who obtained 74 per
cent, which was considered by the Court as equivalent to 75 per cent as
prescribed by the Rules, by reason of circumstances deemed to be
sufficiently justifiable. These changes in the passing averages during
those years were all that could be objected to or criticized. Now, it is
desired to undo what had been done — cancel the license that was
issued to those who did not obtain the prescribed 75 per cent ? Certainly
not. The disputed law clearly does not propose to do so. Concededly, it
approves what has been done by this Tribunal. What Congress lamented
is that the Court did not consider 69.5 per cent obtained by those
candidates who failed in 1946 to 1952 as sufficient to qualify them to
practice law. Hence, it is the lack of will or defect of judgment of the Court
that is being cured, and to complete the cure of this infirmity, the
effectivity of the disputed law is being extended up to the years 1953,
1954 and 1955, increasing each year the general average by one per
cent, with the order that said candidates be admitted to the Bar. This
purpose, manifest in the said law, is the best proof that what the law
attempts to amend and correct are not the rules promulgated, but the will
or judgment of the Court, by means of simply taking its place. This is
doing directly what the Tribunal should have done during those years
according to the judgment of Congress. In other words, the power
exercised was not to repeal, alter or supplement the rules, which continue
in force. What was done was to stop or suspend them. And this power is
not included in what the Constitution has granted to Congress, because it
falls within the power to apply the rules. This power corresponds to the
judiciary, to which such duty been confided.
Article 2 of the law in question permits partial passing of examinations, at
indefinite intervals. The grave defect of this system is that it does not take
into account that the laws and jurisprudence are not stationary, and when
30
a candidate finally receives his certificate, it may happen that the existing
laws and jurisprudence are already different, seriously affecting in this
manner his usefulness. The system that the said law prescribes was
used in the first bar examinations of this country, but was abandoned for
this and other disadvantages. In this case, however, the fatal defect is
that the article is not expressed in the title will have temporary effect only
from 1946 to 1955, the text of article 2 establishes a permanent system
for an indefinite time. This is contrary to Section 21 (1), article VI of the
Constitution, which vitiates and annuls article 2 completely; and because
it is inseparable from article 1, it is obvious that its nullity affect the entire
law.
Laws are unconstitutional on the following grounds: first, because they
are not within the legislative powers of Congress to enact, or Congress
has exceeded its powers; second, because they create or establish
arbitrary methods or forms that infringe constitutional principles; and third,
because their purposes or effects violate the Constitution or its basic
principles. As has already been seen, the contested law suffers from
these fatal defects.
Summarizing, we are of the opinion and hereby declare that Republic Act
No. 972 is unconstitutional and therefore, void, and without any force nor
effect for the following reasons, to wit:
1. Because its declared purpose is to admit 810 candidates who failed in
the bar examinations of 1946-1952, and who, it admits, are certainly
inadequately prepared to practice law, as was exactly found by this Court
in the aforesaid years. It decrees the admission to the Bar of these
candidates, depriving this Tribunal of the opportunity to determine if they
are at present already prepared to become members of the Bar. It obliges
the Tribunal to perform something contrary to reason and in an arbitrary
manner. This is a manifest encroachment on the constitutional
responsibility of the Supreme Court.
2. Because it is, in effect, a judgment revoking the resolution of this Court
on the petitions of these 810 candidates, without having examined their
respective examination papers, and although it is admitted that this
Tribunal may reconsider said resolution at any time for justifiable
reasons, only this Court and no other may revise and alter them. In
attempting to do it directly Republic Act No. 972 violated the Constitution.
3. By the disputed law, Congress has exceeded its legislative power to
repeal, alter and supplement the rules on admission to the Bar. Such
additional or amendatory rules are, as they ought to be, intended to
regulate acts subsequent to its promulgation and should tend to improve
and elevate the practice of law, and this Tribunal shall consider these
rules as minimum norms towards that end in the admission, suspension,
disbarment and reinstatement of lawyers to the Bar, inasmuch as a good
bar assists immensely in the daily performance of judicial functions and is
essential to a worthy administration of justice. It is therefore the primary
and inherent prerogative of the Supreme Court to render the ultimate
decision on who may be admitted and may continue in the practice of law
according to existing rules.
4. The reason advanced for the pretended classification of candidates,
which the law makes, is contrary to facts which are of general knowledge
and does not justify the admission to the Bar of law students inadequately
prepared. The pretended classification is arbitrary. It is undoubtedly a
class legislation.
5. Article 2 of Republic Act No. 972 is not embraced in the title of the law,
contrary to what the Constitution enjoins, and being inseparable from the
provisions of article 1, the entire law is void.
6. Lacking in eight votes to declare the nullity of that part of article 1
referring to the examinations of 1953 to 1955, said part of article 1,
insofar as it concerns the examinations in those years, shall continue in
force.
RESOLUTION
Upon mature deliberation by this Court, after hearing and availing of the
magnificent and impassioned discussion of the contested law by our
Chief Justice at the opening and close of the debate among the members
of the Court, and after hearing the judicious observations of two of our
beloved colleagues who since the beginning have announced their
decision not to take part in voting, we, the eight members of the Court
who subscribed to this decision have voted and resolved, and have
decided for the Court, and under the authority of the same:
1. That (a) the portion of article 1 of Republic Act No. 972 referring to the
examinations of 1946 to 1952, and (b) all of article 2 of said law are
unconstitutional and, therefore, void and without force and effect.
2. That, for lack of unanimity in the eight Justices, that part of article 1
which refers to the examinations subsequent to the approval of the law,
31
that is from 1953 to 1955 inclusive, is valid and shall continue to be in
force, in conformity with section 10, article VII of the Constitution.
Consequently, (1) all the above-mentioned petitions of the candidates
who failed in the examinations of 1946 to 1952 inclusive are denied, and
(2) all candidates who in the examinations of 1953 obtained a general
average of 71.5 per cent or more, without having a grade below 50 per
cent in any subject, are considered as having passed, whether they have
filed petitions for admission or not. After this decision has become final,
they shall be permitted to take and subscribe the corresponding oath of
office as members of the Bar on the date or dates that the chief Justice
may set. So ordered.
There are the unsuccessful candidates totaling 604 directly affected by
this resolution. Adding 490 candidates who have not presented any
petition, they reach a total of 1,094.
The Enactment of Republic Act No. 972
As will be observed from Annex I, this Court reduced to 72 per cent the
passing general average in the bar examination of august and November
of 1946; 69 per cent in 1947; 70 per cent in 1948; 74 per cent in 1949;
maintaining the prescribed 75 per cent since 1950, but raising to 75 per
cent those who obtained 74 per cent since 1950. This caused the
introduction in 1951, in the Senate of the Philippines of Bill No. 12 which
was intended to amend Sections 5, 9, 12, 14 and 16 of Rule 127 of the
Rules of Court, concerning the admission of attorneys-at-law to the
practice of the profession. The amendments embrace many interesting
matters, but those referring to sections 14 and 16 immediately concern
us. The proposed amendment is as follows:
SEC. 14. Passing average. — In order that a candidate may be
deemed to have passed the examinations successfully, he must
have obtained a general average of 70 per cent without falling
below 50 per cent in any subject. In determining the average, the
foregoing subjects shall be given the following relative weights:
Civil Law, 20 per cent; Land Registration and Mortgages, 5 per
cent; Mercantile Law, 15 per cent; Criminal Law, 10 per cent;
Political Law, 10 per cent; International Law, 5 per cent; Remedial
Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per
cent; Social Legislation, 5 per cent; Taxation, 5 per cent.
Unsuccessful candidates shall not be required to take another
examination in any subject in which they have obtained a rating of
70 per cent or higher and such rating shall be taken into account
in determining their general average in any subsequent
examinations: Provided, however, That if the candidate fails to
get a general average of 70 per cent in his third examination, he
shall lose the benefit of having already passed some subjects and
shall be required to the examination in all the subjects.
SEC. 16. Admission and oath of successful applicants. — Any
applicant who has obtained a general average of 70 per cent in
all subjects without falling below 50 per cent in any examination
held after the 4th day of July, 1946, or who has been otherwise
found to be entitled to admission to the bar, shall be allowed to
take and subscribe before the Supreme Court the corresponding
oath of office. (Arts. 4 and 5, 8, No. 12).
With the bill was an Explanatory Note, the portion pertinent to the matter
before us being:
It seems to be unfair that unsuccessful candidates at bar
examinations should be compelled to repeat even those subjects
which they have previously passed. This is not the case in any
other government examination. The Rules of Court have
therefore been amended in this measure to give a candidate due
credit for any subject which he has previously passed with a
rating of 75 per cent or higher."
Senate Bill No. 12 having been approved by Congress on May 3, 1951,
the President requested the comments of this Tribunal before acting on
the same. The comment was signed by seven Justices while three chose
to refrain from making any and one took no part. With regards to the
matter that interests us, the Court said:
The next amendment is of section 14 of Rule 127. One part of
this amendment provides that if a bar candidate obtains 70 per
cent or higher in any subject, although failing to pass the
examination, he need not be examined in said subject in his next
examination. This is a sort of passing the Bar Examination on the
installment plan, one or two or three subjects at a time. The
trouble with this proposed system is that although it makes it
easier and more convenient for the candidate because he may in
an examination prepare himself on only one or two subjects so as
to insure passing them, by the time that he has passed the last
required subjects, which may be several years away from the
32
time that he reviewed and passed the firs subjects, he shall have
forgotten the principles and theories contained in those subjects
and remembers only those of the one or two subjects that he had
last reviewed and passed. This is highly possible because there
is nothing in the law which requires a candidate to continue taking
the Bar examinations every year in succession. The only
condition imposed is that a candidate, on this plan, must pass the
examination in no more that three installments; but there is no
limitation as to the time or number of years intervening between
each examination taken. This would defeat the object and the
requirements of the law and the Court in admitting persons to the
practice of law. When a person is so admitted, it is to be
presumed and presupposed that he possesses the knowledge
and proficiency in the law and the knowledge of all law subjects
required in bar examinations, so as presently to be able to
practice the legal profession and adequately render the legal
service required by prospective clients. But this would not hold
true of the candidates who may have obtained a passing grade
on any five subjects eight years ago, another three subjects one
year later, and the last two subjects the present year. We believe
that the present system of requiring a candidate to obtain a
passing general average with no grade in any subject below 50
per cent is more desirable and satisfactory. It requires one to be
all around, and prepared in all required legal subjects at the time
of admission to the practice of law.
xxx xxx xxx
We now come to the last amendment, that of section 16 of Rule
127. This amendment provides that any application who has
obtained a general average of 70 per cent in all subjects without
failing below 50 per cent in any subject in any examination held
after the 4th day of July, 1946, shall be allowed to take and
subscribe the corresponding oath of office. In other words, Bar
candidates who obtained not less than 70 per cent in any
examination since the year 1946 without failing below 50 per cent
in any subject, despite their non-admission to the Bar by the
Supreme Court because they failed to obtain a passing general
average in any of those years, will be admitted to the Bar. This
provision is not only prospective but retroactive in its effects.
We have already stated in our comment on the next preceding
amendment that we are not exactly in favor of reducing the
passing general average from 75 per cent to 70 per cent to
govern even in the future. As to the validity of making such
reduction retroactive, we have serious legal doubts. We should
not lose sight of the fact that after every bar examinations, the
Supreme Court passes the corresponding resolution not only
admitting to the Bar those who have obtained a passing general
average grade, but also rejecting and denying the petitions for
reconsideration of those who have failed. The present
amendment would have the effect of repudiating, reversing and
revoking the Supreme Court's resolution denying and rejecting
the petitions of those who may have obtained an average of 70
per cent or more but less than the general passing average fixed
for that year. It is clear that this question involves legal
implications, and this phase of the amendment if finally enacted
into law might have to go thru a legal test. As one member of the
Court remarked during the discussion, when a court renders a
decision or promulgate a resolution or order on the basis of and in
accordance with a certain law or rule then in force, the
subsequent amendment or even repeal of said law or rule may
not affect the final decision, order, or resolution already
promulgated, in the sense of revoking or rendering it void and of
no effect.
Another aspect of this question to be considered is the fact that
members of the bar are officers of the courts, including the
Supreme Court. When a Bar candidate is admitted to the Bar, the
Supreme Court impliedly regards him as a person fit, competent
and qualified to be its officer. Conversely, when it refused and
denied admission to the Bar to a candidate who in any year since
1946 may have obtained a general average of 70 per cent but
less than that required for that year in order to pass, the Supreme
Court equally and impliedly considered and declared that he was
not prepared, ready, competent and qualified to be its officer. The
present amendment giving retroactivity to the reduction of the
passing general average runs counter to all these acts and
resolutions of the Supreme Court and practically and in effect
says that a candidate not accepted, and even rejected by the
Court to be its officer because he was unprepared, undeserving
and unqualified, nevertheless and in spite of all, must be admitted
and allowed by this Court to serve as its officer. We repeat, that
this is another important aspect of the question to be carefully
and seriously considered.
The President vetoed the bill on June 16, 1951, stating the following:
33
 I am fully in accord with the avowed objection of the bill, namely,
to elevate the standard of the legal profession and maintain it on
a high level. This is not achieved, however, by admitting to
practice precisely a special class who have failed in the bar
examination, Moreover, the bill contains provisions to which I find
serious fundamental objections.
Section 5 provides that any applicant who has obtained a general
average of 70 per cent in all subjects without failing below 50 per
cent in any subject in any examination held after the 4th day of
July, 1946, shall be allowed to take and subscribed the
corresponding oath of office. This provision constitutes class
legislation, benefiting as it does specifically one group of persons,
namely, the unsuccessful candidates in the 1946, 1947, 1948,
1949 and 1950 bar examinations.
The same provision undertakes to revoke or set aside final
resolutions of the Supreme Court made in accordance with the
law then in force. It should be noted that after every bar
examination the Supreme Court passes the corresponding
resolution not only admitting to the Bar those who have obtained
a passing general average but also rejecting and denying the
petitions for reconsideration of those who have failed. The
provision under consideration would have the effect of revoking
the Supreme Court's resolution denying and rejecting the
petitions of those who may have failed to obtain the passing
average fixed for that year. Said provision also sets a bad
precedent in that the Government would be morally obliged to
grant a similar privilege to those who have failed in the
examinations for admission to other professions such as
medicine, engineering, architecture and certified public
accountancy.
Consequently, the bill was returned to the Congress of the Philippines,
but it was not repassed by 2/3 vote of each House as prescribed by
section 20, article VI of the Constitution. Instead Bill No. 371 was
presented in the Senate. It reads as follows:
AN ACT TO FIX THE PASSING MARKS FOR BAR
EXAMINATIONS FROM 1946 UP TO AND INCLUDING 1953
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
SECTION 1. Notwithstanding the provisions of section 14, Rule
127 of the Rules of Court, any bar candidate who obtained a
general average of 70 per cent in any bar examinations after July
4, 1946 up to the August 1951 Bar examinations; 71 per cent in
the 1952 bar examinations; 72 per cent in the 1953 bar
examinations; 73 per cent in the 1954 bar examinations; 74 per
cent in 1955 bar examinations without a candidate obtaining a
grade below 50 per cent in any subject, shall be allowed to take
and subscribe the corresponding oath of office as member of the
Philippine Bar; Provided, however, That 75 per cent passing
general average shall be restored in all succeeding examinations;
and Provided, finally, That for the purpose of this Act, any exact
one-half or more of a fraction, shall be considered as one and
included as part of the next whole number.
SEC. 2. Any bar candidate who obtained a grade of 75 per cent in
any subject in any bar examination after July 4, 1945 shall be
deemed to have passed in such subject or subjects and such
grade or grades shall be included in computing the passing
general average that said candidate may obtain in any
subsequent examinations that he may take.
SEC. 3. This bill shall take effect upon its approval.
With the following explanatory note:
This is a revised Bar bill to meet the objections of the President
and to afford another opportunity to those who feel themselves
discriminated by the Supreme Court from 1946 to 1951 when
those who would otherwise have passed the bar examination but
were arbitrarily not so considered by altering its previous
decisions of the passing mark. The Supreme Court has been
altering the passing mark from 69 in 1947 to 74 in 1951. In order
to cure the apparent arbitrary fixing of passing grades and to give
satisfaction to all parties concerned, it is proposed in this bill a
gradual increase in the general averages for passing the bar
examinations as follows; For 1946 to 1951 bar examinations, 70
per cent; for 1952 bar examination, 71 per cent; for 1953 bar
examination, 72 per cent; for 1954 bar examination, 73 percent;
and for 1955 bar examination, 74 per cent. Thus in 1956 the
passing mark will be restored with the condition that the
candidate shall not obtain in any subject a grade of below 50 per
cent. The reason for relaxing the standard 75 per cent passing
grade, is the tremendous handicap which students during the
34
years immediately after the Japanese occupation has to
overcome such as the insufficiency of reading materials and the
inadequacy of the preparation of students who took up law soon
after the liberation. It is believed that by 1956 the preparation of
our students as well as the available reading materials will be
under normal conditions, if not improved from those years
preceding the last world war.
In this will we eliminated altogether the idea of having our
Supreme Court assumed the supervision as well as the
administration of the study of law which was objected to by the
President in the Bar Bill of 1951.
The President in vetoing the Bar Bill last year stated among his
objections that the bill would admit to the practice of law "a
special class who failed in the bar examination". He considered
the bill a class legislation. This contention, however, is not, in
good conscience, correct because Congress is merely
supplementing what the Supreme Court have already established
as precedent by making as low as 69 per cent the passing mark
of those who took the Bar examination in 1947. These bar
candidates for who this bill should be enacted, considered
themselves as having passed the bar examination on the strength
of the established precedent of our Supreme Court and were fully
aware of the insurmountable difficulties and handicaps which they
were unavoidably placed. We believe that such precedent cannot
or could not have been altered, constitutionally, by the Supreme
Court, without giving due consideration to the rights already
accrued or vested in the bar candidates who took the examination
when the precedent was not yet altered, or in effect, was still
enforced and without being inconsistent with the principles of their
previous resolutions.
If this bill would be enacted, it shall be considered as a simple
curative act or corrective statute which Congress has the power
to enact. The requirement of a "valid classification" as against
class legislation, is very expressed in the following American
Jurisprudence:
A valid classification must include all who naturally belong to the
class, all who possess a common disability, attribute, or
classification, and there must be a "natural" and substantial
differentiation between those included in the class and those it
leaves untouched. When a class is accepted by the Court as
"natural" it cannot be again split and then have the dissevered
factions of the original unit designated with different rules
established for each. (Fountain Park Co. vs. Rensier, 199 Ind. 95,
N. E. 465 (1926).
Another case penned by Justice Cardozo: "Time with its tides
brings new conditions which must be cared for by new laws.
Sometimes the new conditions affect the members of a class. If
so, the correcting statute must apply to all alike. Sometimes the
condition affect only a few. If so, the correcting statute may be as
narrow as the mischief. The constitution does not prohibit special
laws inflexibly and always. It permits them when there are special
evils with which the general laws are incompetent to cope. The
special public purpose will sustain the special form. . . . The
problem in the last analysis is one of legislative policy, with a wide
margin of discretion conceded to the lawmakers. Only in the case
of plain abuse will there be revision by the court. (In
Williams vs. Mayor and City Council of Baltimore, 286 U. S. 36,
77 L. Ed. 1015, 53 Sup. Ct. 431). (1932)
This bill has all the earmarks of a corrective statute which always
retroacts to the extent of the care of correction only as in this
case from 1946 when the Supreme Court first deviated from the
rule of 75 per cent in the Rules of Court.
For the foregoing purposes the approval of this bill is earnestly
recommended.
(Sgd.) PABLO ANGELES DAVID
Senator
Without much debate, the revised bill was passed by Congress as above
transcribed. The President again asked the comments of this Court,
which endorsed the following:
Respectfully returned to the Honorable, the Acting Executive
Secretary, Manila, with the information that, with respect to
Senate Bill No. 371, the members of the Court are taking the
same views they expressed on Senate Bill No. 12 passed by
Congress in May, 1951, contained in the first indorsement of the
undersigned dated June 5, 1951, to the Assistant Executive
Secretary.
35
 (Sgd.) RICARDO PARAS
The President allowed the period within which the bill should be signed to
pass without vetoing it, by virtue of which it became a law on June 21,
1953 (Sec. 20, Art. VI, Constitution) numbered 972 (many times
erroneously cited as No. 974).
It may be mentioned in passing that 1953 was an election year, and that
both the President and the author of the Bill were candidates for re-
election, together, however, they lost in the polls.
EN BANC
A.M. No. 1928 August 3, 1978
In the Matter of the IBP Membership Dues Delinquency of Atty.
MARCIAL A. EDILION (IBP Administrative Case No. MDD-1)
RESOLUTION
CASTRO, C.J.:
The respondent Marcial A. Edillon is a duly licensed practicing attorney in
the Philippines.
On November 29, 1975, the Integrated Bar of the Philippines (IBP for
short) Board of Governors unanimously adopted Resolution No. 75-65 in
Administrative Case No. MDD-1 (In the Matter of the Membership Dues
Delinquency of Atty. Marcial A. Edillon) recommending to the Court the
removal of the name of the respondent from its Roll of Attorneys for
"stubborn refusal to pay his membership dues" to the IBP since the
latter's constitution notwithstanding due notice.
On January 21, 1976, the IBP, through its then President Liliano B. Neri,
submitted the said resolution to the Court for consideration and approval,
pursuant to paragraph 2, Section 24, Article III of the By-Laws of the IBP,
which reads:
.... Should the delinquency further continue until the
following June 29, the Board shall promptly inquire into
the cause or causes of the continued delinquency and
take whatever action it shall deem appropriate, including a
recommendation to the Supreme Court for the removal of
the delinquent member's name from the Roll of Attorneys.
Notice of the action taken shall be sent by registered mail
to the member and to the Secretary of the Chapter
concerned.
On January 27, 1976, the Court required the respondent to comment on
the resolution and letter adverted to above; he submitted his comment on
February 23, 1976, reiterating his refusal to pay the membership fees due
from him.
On March 2, 1976, the Court required the IBP President and the IBP
Board of Governors to reply to Edillon's comment: on March 24, 1976,
they submitted a joint reply.
Thereafter, the case was set for hearing on June 3, 1976. After the
hearing, the parties were required to submit memoranda in amplification
of their oral arguments. The matter was thenceforth submitted for
resolution.
At the threshold, a painstaking scrutiny of the respondent's pleadings
would show that the propriety and necessity of the integration of the Bar
of the Philippines are in essence conceded. The respondent, however,
objects to particular features of Rule of Court 139-A (hereinafter referred
to as the Court Rule) 1 — in accordance with which the Bar of the
Philippines was integrated — and to the provisions of par. 2, Section 24,
Article III, of the IBP By-Laws (hereinabove cited).
The authority of the IBP Board of Governors to recommend to the
Supreme Court the removal of a delinquent member's name from the Roll
of Attorneys is found in par. 2 Section 24, Article Ill of the IBP By-Laws
(supra), whereas the authority of the Court to issue the order applied for
is found in Section 10 of the Court Rule, which reads:
SEC. 10. Effect of non-payment of dues. — Subject to the
provisions of Section 12 of this Rule, default in the
payment of annual dues for six months shall warrant
suspension of membership in the Integrated Bar, and
default in such payment for one year shall be a ground for
36
 the removal of the name of the delinquent member from
the Roll of Attorneys.
The all-encompassing, all-inclusive scope of membership in the IBP is
stated in these words of the Court Rule:
SECTION 1. Organization. — There is hereby organized
an official national body to be known as the 'Integrated
Bar of the Philippines,' composed of all persons whose
names now appear or may hereafter be included in the
Roll of Attorneys of the Supreme Court.
The obligation to pay membership dues is couched in the following words
of the Court Rule:
SEC. 9. Membership dues. Every member of the
Integrated Bar shall pay such annual dues as the Board of
Governors shall determine with the approval of the
Supreme Court. ...
The core of the respondent's arguments is that the above provisions
constitute an invasion of his constitutional rights in the sense that he is
being compelled, as a pre-condition to maintaining his status as a lawyer
in good standing, to be a member of the IBP and to pay the
corresponding dues, and that as a consequence of this compelled
financial support of the said organization to which he is admittedly
personally antagonistic, he is being deprived of the rights to liberty and
property guaranteed to him by the Constitution. Hence, the respondent
concludes, the above provisions of the Court Rule and of the IBP By-
Laws are void and of no legal force and effect.
The respondent similarly questions the jurisdiction of the Court to strike
his name from the Roll of Attorneys, contending that the said matter is not
among the justiciable cases triable by the Court but is rather of an
"administrative nature pertaining to an administrative body."
The case at bar is not the first one that has reached the Court relating to
constitutional issues that inevitably and inextricably come up to the
surface whenever attempts are made to regulate the practice of law,
define the conditions of such practice, or revoke the license granted for
the exercise of the legal profession.
The matters here complained of are the very same issues raised in a
previous case before the Court, entitled "Administrative Case No. 526, In
the Matter of the Petition for the Integration of the Bar of the Philippines,
Roman Ozaeta, et al., Petitioners." The Court exhaustively considered all
these matters in that case in its Resolution ordaining the integration of the
Bar of the Philippines, promulgated on January 9, 1973. The Court there
made the unanimous pronouncement that it was
... fully convinced, after a thoroughgoing conscientious
study of all the arguments adduced in Adm. Case No. 526
and the authoritative materials and the mass of factual
data contained in the exhaustive Report of the
Commission on Bar Integration, that the integration of the
Philippine Bar is 'perfectly constitutional and legally
unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court.
An "Integrated Bar" is a State-organized Bar, to which every lawyer must
belong, as distinguished from bar associations organized by individual
lawyers themselves, membership in which is voluntary. Integration of the
Bar is essentially a process by which every member of the Bar is afforded
an opportunity to do his share in carrying out the objectives of the Bar as
well as obliged to bear his portion of its responsibilities. Organized by or
under the direction of the State, an integrated Bar is an official national
body of which all lawyers are required to be members. They are,
therefore, subject to all the rules prescribed for the governance of the
Bar, including the requirement of payment of a reasonable annual fee for
the effective discharge of the purposes of the Bar, and adherence to a
code of professional ethics or professional responsibility breach of which
constitutes sufficient reason for investigation by the Bar and, upon proper
cause appearing, a recommendation for discipline or disbarment of the
offending member. 2
The integration of the Philippine Bar was obviously dictated by overriding
considerations of public interest and public welfare to such an extent as
more than constitutionally and legally justifies the restrictions that
integration imposes upon the personal interests and personal
convenience of individual lawyers. 3
Apropos to the above, it must be stressed that all legislation directing the
integration of the Bar have been uniformly and universally sustained as a
valid exercise of the police power over an important profession. The
37
practice of law is not a vested right but a privilege, a privilege moreover
clothed with public interest because a lawyer owes substantial duties not
only to his client, but also to his brethren in the profession, to the courts,
and to the nation, and takes part in one of the most important functions of
the State — the administration of justice — as an officer of the
court. 4 The practice of law being clothed with public interest, the holder of
this privilege must submit to a degree of control for the common good, to
the extent of the interest he has created. As the U. S. Supreme Court
through Mr. Justice Roberts explained, the expression "affected with a
public interest" is the equivalent of "subject to the exercise of the police
power" (Nebbia vs. New York, 291 U.S. 502).
When, therefore, Congress enacted Republic Act No. 6397 5 authorizing
the Supreme Court to "adopt rules of court to effect the integration of the
Philippine Bar under such conditions as it shall see fit," it did so in the
exercise of the paramount police power of the State. The Act's avowal is
to "raise the standards of the legal profession, improve the administration
of justice, and enable the Bar to discharge its public responsibility more
effectively." Hence, the Congress in enacting such Act, the Court in
ordaining the integration of the Bar through its Resolution promulgated on
January 9, 1973, and the President of the Philippines in decreeing the
constitution of the IBP into a body corporate through Presidential Decree
No. 181 dated May 4, 1973, were prompted by fundamental
considerations of public welfare and motivated by a desire to meet the
demands of pressing public necessity.
The State, in order to promote the general welfare, may interfere with and
regulate personal liberty, property and occupations. Persons and property
may be subjected to restraints and burdens in order to secure the general
prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218),
for, as the Latin maxim goes, "Salus populi est supreme lex." The public
welfare is the supreme law. To this fundamental principle of government
the rights of individuals are subordinated. Liberty is a blessing without
which life is a misery, but liberty should not be made to prevail over
authority because then society win fall into anarchy (Calalang vs.
Williams, 70 Phil. 726). It is an undoubted power of the State to restrain
some individuals from all freedom, and all individuals from some freedom.
But the most compelling argument sustaining the constitutionality and
validity of Bar integration in the Philippines is the explicit unequivocal
grant of precise power to the Supreme Court by Section 5 (5) of Article X
of the 1973 Constitution of the Philippines, which reads:
Sec. 5. The Supreme Court shall have the following
powers:
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and
pro. procedure in all courts, and the admission to the
practice of law and the integration of the Bar ...,
and Section 1 of Republic Act No. 6397, which reads:
SECTION 1. Within two years from the approval of this
Act, the Supreme Court may adopt rules of Court to effect
the integration of the Philippine Bar under such conditions
as it shall see fit in order to raise the standards of the
legal profession, improve the administration of justice, and
enable the Bar to discharge its public responsibility more
effectively.
Quite apart from the above, let it be stated that even without the enabling
Act (Republic Act No. 6397), and looking solely to the language of the
provision of the Constitution granting the Supreme Court the power "to
promulgate rules concerning pleading, practice and procedure in all
courts, and the admission to the practice of law," it at once becomes
indubitable that this constitutional declaration vests the Supreme Court
with plenary power in all cases regarding the admission to and
supervision of the practice of law.
Thus, when the respondent Edillon entered upon the legal profession, his
practice of law and his exercise of the said profession, which affect the
society at large, were (and are) subject to the power of the body politic to
require him to conform to such regulations as might be established by the
proper authorities for the common good, even to the extent of interfering
with some of his liberties. If he did not wish to submit himself to such
reasonable interference and regulation, he should not have clothed the
public with an interest in his concerns.
On this score alone, the case for the respondent must already fall.
The issues being of constitutional dimension, however, we now concisely
deal with them seriatim.
38
1. The first objection posed by the respondent is that the Court is without
power to compel him to become a member of the Integrated Bar of the
Philippines, hence, Section 1 of the Court Rule is unconstitutional for it
impinges on his constitutional right of freedom to associate (and not to
associate). Our answer is: To compel a lawyer to be a member of the
Integrated Bar is not violative of his constitutional freedom to associate. 6
Integration does not make a lawyer a member of any group of which he is
not already a member. He became a member of the Bar when he passed
the Bar examinations. 7 All that integration actually does is to provide an
official national organization for the well-defined but unorganized and
incohesive group of which every lawyer is a ready a member. 8
Bar integration does not compel the lawyer to associate with anyone. He
is free to attend or not attend the meetings of his Integrated Bar Chapter
or vote or refuse to vote in its elections as he chooses. The only
compulsion to which he is subjected is the payment of annual dues. The
Supreme Court, in order to further the State's legitimate interest in
elevating the quality of professional legal services, may require that the
cost of improving the profession in this fashion be shared by the subjects
and beneficiaries of the regulatory program — the lawyers.9
Assuming that the questioned provision does in a sense compel a lawyer
to be a member of the Integrated Bar, such compulsion is justified as an
exercise of the police power of the State. 10
2. The second issue posed by the respondent is that the provision of the
Court Rule requiring payment of a membership fee is void. We see
nothing in the Constitution that prohibits the Court, under its constitutional
power and duty to promulgate rules concerning the admission to the
practice of law and the integration of the Philippine Bar (Article X, Section
5 of the 1973 Constitution) — which power the respondent acknowledges
— from requiring members of a privileged class, such as lawyers are, to
pay a reasonable fee toward defraying the expenses of regulation of the
profession to which they belong. It is quite apparent that the fee is indeed
imposed as a regulatory measure, designed to raise funds for carrying
out the objectives and purposes of integration. 11
3. The respondent further argues that the enforcement of the penalty
provisions would amount to a deprivation of property without due process
and hence infringes on one of his constitutional rights. Whether the
practice of law is a property right, in the sense of its being one that
entitles the holder of a license to practice a profession, we do not here
pause to consider at length, as it clear that under the police power of the
State, and under the necessary powers granted to the Court to
perpetuate its existence, the respondent's right to practise law before the
courts of this country should be and is a matter subject to regulation and
inquiry. And, if the power to impose the fee as a regulatory measure is
recognize, then a penalty designed to enforce its payment, which penalty
may be avoided altogether by payment, is not void as unreasonable or
arbitrary. 12
But we must here emphasize that the practice of law is not a property
right but a mere privilege, 13 and as such must bow to the inherent
regulatory power of the Court to exact compliance with the lawyer's public
responsibilities.
4. Relative to the issue of the power and/or jurisdiction of the Supreme
Court to strike the name of a lawyer from its Roll of Attorneys, it is
sufficient to state that the matters of admission, suspension, disbarment
and reinstatement of lawyers and their regulation and supervision have
been and are indisputably recognized as inherent judicial functions and
responsibilities, and the authorities holding such are legion. 14
In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of
the Board of Bar Commissioners in a disbarment proceeding was
confirmed and disbarment ordered, the court, sustaining the Bar
Integration Act of Kentucky, said: "The power to regulate the conduct and
qualifications of its officers does not depend upon constitutional or
statutory grounds. It is a power which is inherent in this court as a court
— appropriate, indeed necessary, to the proper administration of justice
... the argument that this is an arbitrary power which the court is
arrogating to itself or accepting from the legislative likewise misconceives
the nature of the duty. It has limitations no less real because they are
inherent. It is an unpleasant task to sit in judgment upon a brother
member of the Bar, particularly where, as here, the facts are disputed. It
is a grave responsibility, to be assumed only with a determination to
uphold the Ideals and traditions of an honorable profession and to protect
the public from overreaching and fraud. The very burden of the duty is
itself a guaranty that the power will not be misused or prostituted. ..."
The Court's jurisdiction was greatly reinforced by our 1973 Constitution
when it explicitly granted to the Court the power to "Promulgate rules
concerning pleading, practice ... and the admission to the practice of law
and the integration of the Bar ... (Article X, Sec. 5(5) the power to pass
upon the fitness of the respondent to remain a member of the legal
profession is indeed undoubtedly vested in the Court.
39
We thus reach the conclusion that the provisions of Rule of Court 139-A
and of the By-Laws of the Integrated Bar of the Philippines complained of
are neither unconstitutional nor illegal.
WHEREFORE, premises considered, it is the unanimous sense of the
Court that the respondent Marcial A. Edillon should be as he is hereby
disbarred, and his name is hereby ordered stricken from the Roll of
Attorneys of the Court.
EN BANC
G.R. No. 585 December 14, 1979
EMILIA E. ANDRES, petitioner,
vs.
STANLEY R. CABRERA, respondent.
GUERRERO, J.:
In a resolution of this Court dated October 11, 1979, respondent Stanley
R. Cabrera. a successful bar examine in 1977 and against whom a
petition to disqualify him from membership in the Bar is pending in this
Court in the above-entitled case, was required to show cause why he
should not be cited and punished for contempt of court.
The above citation for contempt against the respondent was issued by
the Court following the persistence of the respondent in the use of,
abusive and vituperative language despite the Court's admonition implicit
in Our previous resolution of June 5, 1979 deferring the oath-taking of
respondent pending showing that he has amended his ways and
conformed to the use of polite, courteous and civil language.
The petition to disqualify respondent from admission to the Bar was filed
by Atty. Emilia F. Andres, Legal Officer II in the Office of the Minister,
Ministry of Labor on the ground of lack of good moral character as shown
by his propensity in using vile, uncouth, and in civil language to the extent
of being reprehensively malicious and criminally libelous and likewise, for
his proclivity in filing baseless, malicious and unfounded criminal cases.
It appears that Atty. Emilia E. Andres, designated as Special Investigator
to investigate the administrative charge filed by Mrs. Presentacion R.
Cabrera, mother of the respondent, against one, Atty. Benjamin Perez,
former Hearing Officer of the defunct Workmen's Compensation Unit,
Region IV, Manila, for alleged dishonesty, oppression and discourtesy,
recommended the dismissal of the charge even as the records of two
relevant Workmen's Compensation cases were not produced at the
hearing, notwithstanding the request of the respondent. When the
Minister of Labor dismissed the charges upon Atty. Andres'
recommendation, respondent filed with the City Fiscal of Manila criminal
charges of infidelity in the custody of documents. falsification of public
documents, and violation of the Anti-Graft and Corrupt Practices Act
against the investigator.
Supporting these criminal charges are affidavits of respondent Stanley R.
Cabrera wherein Atty. Andres. now the petitioner, points to the vile, in
civil and uncouth language used by respondent, as shown in the following
excerpts:
9. That the moronic statements of Atty. Ernesto Cruz and
Atty. Emilia Andres are the product of moronic
conspiracy to conceal the said falsified, fraudulent and
unauthorized document in the sense that how can the
CARS conduct a diligent search tor the aforesaid
document when according to the moronic excuse of the
Chief of the said office which took over the functions of
the defunct WCC considering that it is easier to resort to
the list of the inventory of cases before conducting a
diligent search unless both are morons with regards to
their public office ... (emphasis supplied).
10. That due to the fact that Acting Referee Benjamin R.
Perez, Alfredo Antonio, Jr., Atty. Ernesto Cruz and Atty.
Emilia Andres has perpetrated a moronic but criminal
conspiracy to conceal the falsified fraudulent and
unauthorized petition ... (emphasis supplied).
... And to show beyond reasonable doubt that that the
letter is a manufactured evidence respondent Atty. Andres
in another demonstration of her unparalleled stupidity in
40
 the discharge of her public functions moronically failed to
affix her signature to further aggravate matters said
manufactured evidence was moronically received upon
unlawful inducement by respondents Atty. Cruz and Atty.
Andres in furtherance of the criminal conspiracy by the
Idiotic with regards to the discharge of public functions ...
(emphasis supplied)
The same words and phrases are used in respondent's other affidavits
supporting the criminal cases against the petitioner such as the following:
Her moronic but criminal participation as a conspirator
another demonstration of her unparalleled stupidity in the
discharge of her public functions moronically failed to affix
her signature
said manufactured evidence was moronically received by
unlawful inducement by respondents
idiotic receiving clerk of CAR
unparalleled stupidity of chief respondent
On April 28, 1977, this Court required respondent to file an answer to the
petition to disqualify him from admission to the Bar and ordered at the
same time that his oath-taking be held in abeyance until further orders. In
his answer, respondent admits the filing of criminal cases in the City
Fiscal's Office against the petitioner but he claims that his language was
not vile uncouth and un civil due to the simple reason that the same is the
truth and was made with good intentions and justifiable motives pursuant
to respondent's sense of justice as cherished under the New Society,
aside from being absolutely privileged. Respondent's answer, however,
repeats his former allegations that "Atty. Emilia Andres is not only a
moron" and reiterates "the moronic discharge of public functions by
complainant Atty. Emilia Andres."
The records show repeated motions of respondent dated October 21,
1977 and February 22, 1978 for the early resolution of his case and in his
letter dated April 11, 1978 addressed to then Chief Justice Fred Ruiz
Castro, respondent sought, in his very words "some semblance of justice
from the Honorable Supreme Court of the Philippines" and another letter
to the Chief Justice dated August 17, 1978 making reference to the
"avalance of the sadistic resolution en banc," "the cruel and inhuman
punishment the Court has speedily bestowed upon undersigned
respondent," "the Court does not honor its own resolution," and closing
his letter thus — "A victim of the Court's inhuman and cruel punishment
through its supreme inaction."
We referred the petition of Atty. Emilia Andres to the Legal Investigator of
the Court for investigation, report and recommendation which was
submitted on May 24, 1979. Acting on said report, the Court resolved to
defer the oath-taking of respondent pending showing that he has
amended his ways and has conformed to the use of polite, courteous and
civil language. Thereafter, respondent filed on September 3, 1979 an
Urgent Ex-Parte Motion to annul Our resolution of June 5, 1979 and to
reinvestigate the case, preferably giving opportunity to respondent to
argue his case orally before the Court or to allow him to take his oath of
office as an attorney. We denied the motion.
On September 11, 1979, respondent filed an Urgent Motion for Contempt
of Court, praying the Supreme Court to cite complainant Atty. Emilia
Andres for contempt of court, alleging that her false and malicious
accusations coupled with her improper and obnoxious acts during the
investigation impeded, obstructed and degraded the administration of
justice. Under paragraph 2 of said motion, he states:
2. That with all due respect to this Court, the
aforestated resolution en banc to DEFER my oath-taking
as an attorney pending showing that "he has amended his
ways and has conformed to the use of polite, courteous,
and civil language" is a degradation of the administration
of justice due to the fact that the same is bereft of legal
foundation due to the fact that the investigation conducted
by Atty. Victor J. Sevilla, whose supreme stupidity in the
discharge of his official functions is authenticated by his
overt partiality to the complainant as authenticated by the
transcript of records of this case thus depriving
undersigned respondent-movant of the "Cold and neutral
impartiality of a judge" tantamount to lack of due process
of law; (emphasis supplied).
We noted that the above paragraph is a repetition of paragraph 4 in
respondent's previous Urgent Ex-Parte Motion dated September 3, 1979
which also states:
41
 4. That with all due respect to this Court, the aforestated
resolution en banc to DEFER my oath-taking as an
attorney pending showing that "he has amended his ways
and has conformed to the use of polite, courteous and
civil language" is a degradation of the administration of
justice due to the fact that same is bereft of legal
foundation due to the fact that the investigation conducted
by Atty. Victor J. Sevilla, whose supreme stupidity in the
discharge of his official functions is authenticated by his
overt partiality to the complainant as authenticated by the
transcript of records of this case thus depriving
undersigned respondent-movant of the "cold and neutral
impartiality of a judge, " tantamount to lack of due process
of law: (emphasis supplied).
We also took note in respondent's Urgent Motion for Contempt of Court
the language used by him in praying this Court "to impose upon said
Emilia E. Andres imprisonment commensurate to the humiliation
and vomitting injustice undersigned respondent-movant suffered and still
suffering from this Court due to complainant Atty. Emilia E. Andres'
wanton dishonesty."
It is obvious and self-evident that respondent has not amended his
conduct despite the Court's admonition. Respondent persists and keeps
on using abusive and vituperative language before the Court.
Accordingly, We resolved in Our resolution of October 11, 1979 to require
respondent to show cause why he should not be cited and punished for
contempt of court.
Respondent filed an Urgent Motion for Reconsideration dated September
27, 1979 wherein he tried to assure the Court that he has amended his
ways and has conformed to the use of polite, courteous and civil
language and prayed that he be allowed to take the lawyer's oath. We
denied it on October 16, 1979.
Thereafter, respondent submitted a pleading entitled "Subrosa" dated
October 22, 1979 and answered the citation for contempt against him in
the following wise and manner:
3. That without prejudice to my Urgent Motion for
Reconsideration dated Sept. 27, 1979, undersigned
respondent respectfully states to this Court that the
respondent charges that the Court's Resolution of June 5,
1979 is a "degradation of the administration of justice, "
was never intended as a defiance of this Court's authority.
nor to scandalize the integrity, dignity, and respect which
this Court enjoys, but was an statement made with utmost
good faith out of frustration out of respondent's inability to
take his lawyer's oath since April, 1977 and in justifiable
indignation at the illegalities perpetrated by both
complainant Emilia E. Andres and Legal Investigator
Victor Sevilla, both members of the Bar which are evident
with a cursory perusal of the typewritten transcript of the
stenographic notes of the hearings conducted by Legal
Investigator Sevilla which this Court adopted; (emphasis
supplied).
We reject totally respondent's supposed humble apology "for all his non-
conformity to the use of polite, courteous and civil language in all his
pleadings filed with the Court and on his solemn word of honor pledges
not to commit the same hereinafter" and his disavowal of intent of
"defiance of (the) Court's authority nor to scandalize (its) integrity, dignity
and respect which this Court enjoys." Such apology and disavowal
appear to be in sincere, sham and artful for respondent in the same
breadth contends that his statement calling the Court's resolution of June
5, 1979 as "a degradation of the administration of justice" was made "with
utmost, good faith out of frustration of respondent's inability to take his
lawyer's oath since April, 1977 and in justifiable indignation of the
illegalities perpetrated by both complainant Emilia E. Andres and Legal
Investigation Victor Sevilla."
Although respondent is not yet admitted to the legal profession but now
stands at the threshold thereof, having already passed the Bar
examinations, it is as much his duty as every attorney-at-law already
admitted to the practice of law to ..observe and maintain the respect due
to the courts of justice and judicial officers (Sec. 20, (b), Rule 138, Rules
of Court) and "to abstain from all offensive personality and to advance no
fact prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which he is charged" (Sec. 20,
(f), Rule 138). According to the Canons of Professional Ethics, it is the
duty of the lawyer to maintain towards the courts a respectful attitude not
for the sake of the temporary incumbent of the Judicial office, but for the
maintenance of its supreme importance. Judges, not being wholly free to
defend themselves, are particularly entitled to receive the support of the
Bar against unjust criticism and clamor. This duty is likewise incumbent
upon one aspiring to be a lawyer such as the respondent for the
attorney's oath solemnly enjoins him to "conduct myself as a lawyer
42
according to to the best of my knowledge and discretion with all good
fidelity as well to the Courts as to my client.
The power of the Supreme Court to punish for contempt is inherent and
extends to suits at law as well as to administrative proceedings as in the
case at bar for it is as necessary to maintain respect for the courts, in
administrative cases as it is in any other class of judicial proceedings.
Under Rule 71 of the Rules of Court, a person guilty of any improper
conduct tending, directly or indirectly, to impede, obstruct or degrade the
administration of justice may be punished for contempt, and the reason is
that respect for the courts guarantees their stability and permanence
Without such guaranty, the institution of the courts would be resting on a
very loose and flimsy foundation, such power is essential to the proper
execution and effective maintenance of judicial authority.
Respondent's use of vile rude and repulsive language is patent and
palpable from the very words, phrases and sentences he has written and
which are quoted herein. 'They speak for themselves in their vulgarity,
insolence and calumny. Specifically, respondent's direct reference to the
Court on the ..sadistic resolution en banc, " "the cruel and inhuman
punishment the Court has speedily bestowed" upon him, that "the Court
does not honor its own resolution," that he is "a victim of the Court's
inhuman and cruel punishment through its supreme inaction," and that he
is suffering "humiliation and vomitting in justice" from this Court is not
only disrespectful but his charges are false, sham and unfounded.
'There is no excuse, much less plea or pretext to brand ultimately the
Court's resolution deferring oath-taking of the respondent as a new
lawyer issued June 5, 1979 as "a degradation of the administration of
justice." By his improper conduct in the use of highly disrespectful
insolent language, respondent has tended to degrade the administration
of justice; he has disparaged the dignity and brought to disrepute the
integrity and authority of the Court. He has committed contempt of this
Court.
WHEREFORE respondent Stanley Cabrera is found guilty of contempt
and he is hereby sentenced to pay this Court within ten days from notice
hereof a fine of Five Hundred Pesos (P500.00) or imprisonment of fifty
(50) days.
Let a copy of this resolution be attached to respondent's personal record
in the Office of the Bar Confidant. SO ORDERED
SECOND DIVISION
A.M. No. 1053 September 7, 1979
SANTA PANGAN, complainant
vs.
ATTY. DIONISIO RAMOS, respondent,
RESOLUTION
ANTONIO, J.:
This has reference to the motion of complainant, Santa Pangan, to cite
respondent Dionisio Ramos for contempt. It appears from the record that
on September 7, 1978 and March 13, 1979, the hearings in this
administrative case were postponed on the basis of respondent's motions
for postponement. These motions were predicated on respondent's
allegations that on said dates he had a case set for hearing before
Branch VII, Court of First Instance of Manila, entitled People v. Marieta
M. Isip (Criminal Case No. 35906). Upon verification, the attorney of
record of the accused in said case is one "Atty. Pedro D.D. Ramos, 306
Dona Salud Bldg., Dasmarinas Manila." Respondent admits that he used
the name of "Pedro D.D. Ramos" before said court in connection with
Criminal Case No. 35906, but avers that he had a right to do so because
in his Birth Certificate (Annex "A"), his name is "Pedro Dionisio Ramos",
and -his parents are Pedro Ramos and Carmen Dayaw, and that the D.D.
in "Pedro D.D. Ramos" is but an abbreviation of "Dionisio Dayaw his
other given name and maternal surname.
This explanation of respondent is untenable. The name appearing in the
"Roll of Attorneys" is "Dionisio D. Ramos". The attorney's roll or register is
the official record containing the names and signatures of those who are
authorized to practice law. A lawyer is not authorized to use a name other
than the one inscribed in the Roll of Attorneys in his practice of law.
The official oath obliges the attorney solemnly to swear that he will do no
falsehood". As an officer in the temple of justice, an attorney has
irrefragable obligations of "truthfulness, candor and frankness". 1 Indeed,
candor and frankness should characterize the conduct of the lawyer at
every stage. This has to be so because the court has the right to rely
upon him in ascertaining the truth. In representing himself to the court as
43
"Pedro D.D. Ramos" instead of "Dionisio D. Ramos", respondent has
violated his solemn oath.
The duty of an attorney to the courts to employ, for the purpose of
maintaining the causes confided to him, such means as are consistent
with truth and honor cannot be overempahisized. These injunctions
circumscribe the general duty of entire devotion of the attorney to the
client. As stated in a case, his I nigh vocation is to correctly inform the
court upon the law and the facts of the case, and to aid it in doing justice
and arriving at correct conclusions. He violates Ms oath of office ,when
he resorts to deception or permits his client to do so." 2
In using the name of' Pedro D.D. Ramos" before the courts instead of the
name by which he was authorized to practice law - Dionisio D. Ramos -
respondent in effect resorted to deception. The demonstrated lack of
candor in dealing with the courts. The circumstance that this is his first
aberration in this regard precludes Us from imposing a more severe
penalty.
WHEREFORE, in view of the foregoing, respondent Dionisio D. Ramos is
severely REPRIMANDED and warned that a repetition of the same overt
act may warrant his suspencion or disbarment from the practice of law.
It appearing that the hearing of this case has been unduly delayed, the
Investigator of this Court is directed forthwith to proceed with the hearing
to terminate it as soon as possible. The request of complainant to appear
in the afore-mentioned hearing, assisted by her counsel, Atty. Jose U.
Lontoc, is hereby granted.
SO ORDERED.
EN BANC
July 30, 1979
PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME
"SYCIP, SALAZAR, FELICIANO, HERNANDEZ & CASTILLO."
LUCIANO E. SALAZAR, FLORENTINO P. FELICIANO, BENILDO G.
HERNANDEZ. GREGORIO R. CASTILLO. ALBERTO P. SAN JUAN,
JUAN C. REYES. JR., ANDRES G. GATMAITAN, JUSTINO H.
CACANINDIN, NOEL A. LAMAN, ETHELWOLDO E. FERNANDEZ,
ANGELITO C. IMPERIO, EDUARDO R. CENIZA, TRISTAN A.
CATINDIG, ANCHETA K. TAN, and ALICE V. PESIGAN, petitioners.
IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE
USE OF THE FIRM NAME "OZAETA, ROMULO, DE LEON, MABANTA
& REYES." RICARDO J. ROMULO, BENJAMIN M. DE LEON, ROMAN
MABANTA, JR., JOSE MA, REYES, JESUS S. J. SAYOC, EDUARDO
DE LOS ANGELES, and JOSE F. BUENAVENTURA, petitioners.
RESOLUTION
MELENCIO-HERRERA, J.: ñé+.£ªwph!1
Two separate Petitions were filed before this Court 1) by the surviving
partners of Atty. Alexander Sycip, who died on May 5, 1975, and 2) by
the surviving partners of Atty. Herminio Ozaeta, who died on February
14, 1976, praying that they be allowed to continue using, in the names of
their firms, the names of partners who had passed away. In the Court's
Resolution of September 2, 1976, both Petitions were ordered
consolidated.
Petitioners base their petitions on the following arguments:
1. Under the law, a partnership is not prohibited from continuing its
business under a firm name which includes the name of a deceased
partner; in fact, Article 1840 of the Civil Code explicitly sanctions the
practice when it provides in the last paragraph that: têñ.£îhqwâ£
The use by the person or partnership continuing the
business of the partnership name, or the name of a
deceased partner as part thereof, shall not of itself make
the individual property of the deceased partner liable for
any debts contracted by such person or partnership. 1
2. In regulating other professions, such as accountancy and engineering,
the legislature has authorized the adoption of firm names without any
restriction as to the use, in such firm name, of the name of a deceased
partner; 2 the legislative authorization given to those engaged in the
practice of accountancy — a profession requiring the same degree of
trust and confidence in respect of clients as that implicit in the relationship
of attorney and client — to acquire and use a trade name, strongly
indicates that there is no fundamental policy that is offended by the
continued use by a firm of professionals of a firm name which includes
the name of a deceased partner, at least where such firm name has
acquired the characteristics of a "trade name." 3
44
3. The Canons of Professional Ethics are not transgressed by the
continued use of the name of a deceased partner in the firm name of a
law partnership because Canon 33 of the Canons of Professional Ethics
adopted by the American Bar Association declares that: têñ.£îhqwâ£
... The continued use of the name of a deceased or
former partner when permissible by local custom, is not
unethical but care should be taken that no imposition or
deception is practiced through this use. ... 4
4. There is no possibility of imposition or deception because the deaths of
their respective deceased partners were well-publicized in all newspapers
of general circulation for several days; the stationeries now being used by
them carry new letterheads indicating the years when their respective
deceased partners were connected with the firm; petitioners will notify all
leading national and international law directories of the fact of their
respective deceased partners' deaths. 5
5. No local custom prohibits the continued use of a deceased partner's
name in a professional firm's name; 6 there is no custom or usage in the
Philippines, or at least in the Greater Manila Area, which recognizes that
the name of a law firm necessarily Identifies the individual members of
the firm. 7
6. The continued use of a deceased partner's name in the firm name of
law partnerships has been consistently allowed by U.S. Courts and is an
accepted practice in the legal profession of most countries in the world. 8
The question involved in these Petitions first came under consideration
by this Court in 1953 when a law firm in Cebu (the Deen case) continued
its practice of including in its firm name that of a deceased partner, C.D.
Johnston. The matter was resolved with this Court advising the firm to
desist from including in their firm designation the name of C. D. Johnston,
who has long been dead."
The same issue was raised before this Court in 1958 as an incident in G.
R. No. L-11964, entitled Register of Deeds of Manila vs. China Banking
Corporation. The law firm of Perkins & Ponce Enrile moved to intervene
as amicus curiae. Before acting thereon, the Court, in a Resolution of
April 15, 1957, stated that it "would like to be informed why the name of
Perkins is still being used although Atty. E. A. Perkins is already dead." In
a Manifestation dated May 21, 1957, the law firm of Perkins and Ponce
Enrile, raising substantially the same arguments as those now being
raised by petitioners, prayed that the continued use of the firm name
"Perkins & Ponce Enrile" be held proper.
On June 16, 1958, this Court resolved: têñ.£îhqwâ£
After carefully considering the reasons given by Attorneys
Alfonso Ponce Enrile and Associates for their continued
use of the name of the deceased E. G. Perkins, the Court
found no reason to depart from the policy it adopted in
June 1953 when it required Attorneys Alfred P. Deen and
Eddy A. Deen of Cebu City to desist from including in their
firm designation, the name of C. D. Johnston, deceased.
The Court believes that, in view of the personal and
confidential nature of the relations between attorney and
client, and the high standards demanded in the canons of
professional ethics, no practice should be allowed which
even in a remote degree could give rise to the possibility
of deception. Said attorneys are accordingly advised to
drop the name "PERKINS" from their firm name.
Petitioners herein now seek a re-examination of the policy thus far
enunciated by the Court.
The Court finds no sufficient reason to depart from the rulings thus laid
down.
A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and
"Ozaeta, Romulo, De Leon, Mabanta and Reyes" are partnerships, the
use in their partnership names of the names of deceased partners will run
counter to Article 1815 of the Civil Code which provides: têñ.£îhqwâ£
Art. 1815. Every partnership shall operate under a firm
name, which may or may not include the name of one or
more of the partners.
Those who, not being members of the partnership,
include their names in the firm name, shall be subject to
the liability, of a partner.
It is clearly tacit in the above provision that names in a firm name of a
partnership must either be those of living partners and. in the case of
non-partners, should be living persons who can be subjected to liability.
In fact, Article 1825 of the Civil Code prohibits a third person from
45
including his name in the firm name under pain of assuming the liability of
a partner. The heirs of a deceased partner in a law firm cannot be held
liable as the old members to the creditors of a firm particularly where they
are non-lawyers. Thus, Canon 34 of the Canons of Professional Ethics
"prohibits an agreement for the payment to the widow and heirs of a
deceased lawyer of a percentage, either gross or net, of the fees
received from the future business of the deceased lawyer's clients, both
because the recipients of such division are not lawyers and because such
payments will not represent service or responsibility on the part of the
recipient. " Accordingly, neither the widow nor the heirs can be held liable
for transactions entered into after the death of their lawyer-predecessor.
There being no benefits accruing, there ran be no corresponding liability.
Prescinding the law, there could be practical objections to allowing the
use by law firms of the names of deceased partners. The public relations
value of the use of an old firm name can tend to create undue
advantages and disadvantages in the practice of the profession. An able
lawyer without connections will have to make a name for himself starting
from scratch. Another able lawyer, who can join an old firm, can initially
ride on that old firm's reputation established by deceased partners.
B. In regards to the last paragraph of Article 1840 of the Civil Code cited
by petitioners, supra, the first factor to consider is that it is within Chapter
3 of Title IX of the Code entitled "Dissolution and Winding Up." The
Article primarily deals with the exemption from liability in cases of a
dissolved partnership, of the individual property of the deceased partner
for debts contracted by the person or partnership which continues
the business using the partnership name or the name of the deceased
partner as part thereof. What the law contemplates therein is a hold-over
situation preparatory to formal reorganization.
Secondly, Article 1840 treats more of a commercial partnership with a
good will to protect rather than of a professional partnership, with no
saleable good will but whose reputation depends on the personal
qualifications of its individual members. Thus, it has been held that a
saleable goodwill can exist only in a commercial partnership and cannot
arise in a professional partnership consisting of lawyers. 9 têñ.£îhqwâ£
As a general rule, upon the dissolution of a commercial
partnership the succeeding partners or parties have the
right to carry on the business under the old name, in the
absence of a stipulation forbidding it, (s)ince the name of
a commercial partnership is a partnership asset
inseparable from the good will of the firm. ... (60 Am Jur
2d, s 204, p. 115) (Emphasis supplied)
On the other hand, têñ.£îhqwâ£
... a professional partnership the reputation of which depends or;
the individual skill of the members, such as partnerships of
attorneys or physicians, has no good win to be distributed as a
firm asset on its dissolution, however intrinsically valuable such
skill and reputation may be, especially where there is no provision
in the partnership agreement relating to good will as an asset. ...
(ibid, s 203, p. 115) (Emphasis supplied)
C. A partnership for the practice of law cannot be likened to partnerships
formed by other professionals or for business. For one thing, the law on
accountancy specifically allows the use of a trade name in connection
with the practice of accountancy.10têñ.£îhqwâ£
A partnership for the practice of law is not a legal entity. It is a
mere relationship or association for a particular purpose. ... It is
not a partnership formed for the purpose of carrying on trade or
business or of holding property." 11 Thus, it has been stated that
"the use of a nom de plume, assumed or trade name in law
practice is improper. 12
The usual reason given for different standards of conduct being
applicable to the practice of law from those pertaining to business
is that the law is a profession.
Dean Pound, in his recently published contribution to the Survey
of the Legal Profession, (The Lawyer from Antiquity to Modern
Times, p. 5) defines a profession as "a group of men pursuing a
learned art as a common calling in the spirit of public service, —
no less a public service because it may incidentally be a means
of livelihood."
xxx xxx xxx
Primary characteristics which distinguish the legal profession
from business are:
46
 1. A duty of public service, of which the emolument is a
byproduct, and in which one may attain the highest eminence
without making much money.
2. A relation as an "officer of court" to the administration of justice
involving thorough sincerity, integrity, and reliability.
3. A relation to clients in the highest degree fiduciary.
4. A relation to colleagues at the bar characterized by candor,
fairness, and unwillingness to resort to current business methods
of advertising and encroachment on their practice, or dealing
directly with their clients. 13
"The right to practice law is not a natural or constitutional right but is in
the nature of a privilege or franchise. 14 It is limited to persons of good
moral character with special qualifications duly ascertained and
certified. 15 The right does not only presuppose in its possessor integrity,
legal standing and attainment, but also the exercise of a special
privilege, highly personal and partaking of the nature of a public trust." 16
D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the
American Bar Association" in support of their petitions.
It is true that Canon 33 does not consider as unethical the continued use
of the name of a deceased or former partner in the firm name of a law
partnership when such a practice is permissible by local custom but the
Canon warns that care should be taken that no imposition or deception is
practiced through this use.
It must be conceded that in the Philippines, no local custom permits or
allows the continued use of a deceased or former partner's name in the
firm names of law partnerships. Firm names, under our custom, Identify
the more active and/or more senior members or partners of the law
firm. A glimpse at the history of the firms of petitioners and of other law
firms in this country would show how their firm names have evolved and
changed from time to time as the composition of the partnership
changed. têñ.£îhqwâ£
The continued use of a firm name after the death of one or more
of the partners designated by it is proper only where sustained by
local custom and not where by custom this purports to Identify the
active members. ...
There would seem to be a question, under the working of
the Canon, as to the propriety of adding the name of a
new partner and at the same time retaining that of a
deceased partner who was never a partner with the new
one. (H.S. Drinker, op. cit., supra, at pp. 207208)
(Emphasis supplied).
The possibility of deception upon the public, real or consequential, where
the name of a deceased partner continues to be used cannot be ruled
out. A person in search of legal counsel might be guided by the familiar
ring of a distinguished name appearing in a firm title.
E. Petitioners argue that U.S. Courts have consistently allowed the
continued use of a deceased partner's name in the firm name of law
partnerships. But that is so because it is sanctioned by custom.
In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S.
2d 733) which petitioners Salazar, et al. quoted in their memorandum, the
New York Supreme Court sustained the use of the firm name Alexander
& Green even if none of the present ten partners of the firm bears either
name because the practice was sanctioned by custom and did not offend
any statutory provision or legislative policy and was adopted by
agreement of the parties. The Court stated therein: têñ.£îhqwâ£
The practice sought to be proscribed has the sanction of
custom and offends no statutory provision or legislative policy.
Canon 33 of the Canons of Professional Ethics of both the
American Bar Association and the New York State Bar
Association provides in part as follows: "The continued use of the
name of a deceased or former partner, when permissible by local
custom is not unethical, but care should be taken that no
imposition or deception is practiced through this use." There is no
question as to local custom. Many firms in the city use the names
of deceased members with the approval of other attorneys, bar
associations and the courts. The Appellate Division of the First
Department has considered the matter and reached The
conclusion that such practice should not be prohibited. (Emphasis
supplied)
xxx xxx xxx
47
 Neither the Partnership Law nor the Penal Law prohibits the
practice in question. The use of the firm name herein is also
sustainable by reason of agreement between the partners. 18
Not so in this jurisdiction where there is no local custom that sanctions
the practice. Custom has been defined as a rule of conduct formed by
repetition of acts, uniformly observed (practiced) as a social rule, legally
binding and obligatory. 19 Courts take no judicial notice of custom. A
custom must be proved as a fact, according to the rules of evidence. 20 A
local custom as a source of right cannot be considered by a court of
justice unless such custom is properly established by competent
evidence like any other fact. 21 We find such proof of the existence of a
local custom, and of the elements requisite to constitute the same,
wanting herein. Merely because something is done as a matter of
practice does not mean that Courts can rely on the same for purposes of
adjudication as a juridical custom. Juridical custom must be differentiated
from social custom. The former can supplement statutory law or be
applied in the absence of such statute. Not so with the latter.
Moreover, judicial decisions applying or interpreting the laws form part of
the legal system. 22 When the Supreme Court in the Deen and Perkins
cases issued its Resolutions directing lawyers to desist from including the
names of deceased partners in their firm designation, it laid down a legal
rule against which no custom or practice to the contrary, even if proven,
can prevail. This is not to speak of our civil law which clearly ordains that
a partnership is dissolved by the death of any partner. 23 Custom which
are contrary to law, public order or public policy shall not be
countenanced. 24
The practice of law is intimately and peculiarly related to the
administration of justice and should not be considered like an ordinary
"money-making trade." têñ.£îhqwâ£
... It is of the essence of a profession that it is practiced in a spirit
of public service. A trade ... aims primarily at personal gain; a
profession at the exercise of powers beneficial to mankind. If, as
in the era of wide free opportunity, we think of free competitive
self assertion as the highest good, lawyer and grocer and farmer
may seem to be freely competing with their fellows in their calling
in order each to acquire as much of the world's good as he may
within the allowed him by law. But the member of a profession
does not regard himself as in competition with his professional
brethren. He is not bartering his services as is the artisan nor
exchanging the products of his skill and learning as the farmer
sells wheat or corn. There should be no such thing as a lawyers'
or physicians' strike. The best service of the professional man is
often rendered for no equivalent or for a trifling equivalent and it is
his pride to do what he does in a way worthy of his profession
even if done with no expectation of reward, This spirit of public
service in which the profession of law is and ought to be
exercised is a prerequisite of sound administration of justice
according to law. The other two elements of a profession, namely,
organization and pursuit of a learned art have their justification in
that they secure and maintain that spirit. 25
In fine, petitioners' desire to preserve the Identity of their firms in the eyes
of the public must bow to legal and ethical impediment.
ACCORDINGLY, the petitions filed herein are denied and petitioners
advised to drop the names "SYCIP" and "OZAETA" from their respective
firm names. Those names may, however, be included in the listing of
individuals who have been partners in their firms indicating the years
during which they served as such.
SO ORDERED.
EN BANC
A.C. No. 6792 January 25, 2006
ROBERTO SORIANO, Complainant,
vs.
Atty. MANUEL DIZON, Respondent.
DECISION
PER CURIAM:
Before us is a Complaint-Affidavit1 for the disbarment of Atty. Manuel
Dizon, filed by Roberto Soriano with the Commission on Bar Discipine
(CBD) of the Integrated Bar of the Philippines (IBP). Complainant alleges
that the conviction of respondent for a crime involving moral turpitude,
together with the circumstances surrounding the conviction, violates
Canon 1 of Rule 1.01 of the Code of Professional Responsibility; 2 and
48
constitutes sufficient ground for his disbarment under Section 27 of Rule
138 of the Rules of Court.3
Because of the failure of Atty. Dizon to submit his Answer to the
Complaint, the CBD issued a Notice dated May 20, 2004, informing him
that he was in default, and that an ex-parte hearing had been scheduled
for June 11, 2004.4After that hearing, complainant manifested that he was
submitting the case on the basis of the Complaint and its
attachments.5 Accordingly, the CBD directed him to file his Position
Paper, which he did on July 27, 2004.6Afterwards, the case was deemed
submitted for resolution.
On December 6, 2004, Commissioner Teresita J. Herbosa rendered her
Report and Recommendation, which was later adopted and approved by
the IBP Board of Governors in its Resolution No. XVI-2005-84 dated
March 12, 2005.
In his Complaint-Affidavit, Soriano alleged that respondent had violated
Canon 1, Rule 1.01 of the Code of Professional Responsibility; and that
the conviction of the latter for frustrated homicide, 7 which involved moral
turpitude, should result in his disbarment.
The facts leading to respondent’s conviction were summarized by Branch
60 of the Regional Trial Court of Baguio City in this wise:
"x x x. The accused was driving his brown Toyota Corolla and was on his
way home after gassing up in preparation for his trip to Concepcion,
Tarlac with his wife. Along Abanao Street, a taxi driver overtook the car
driven by the accused not knowing that the driver of the car he had
overtaken is not just someone, but a lawyer and a prominent member of
the Baguio community who was under the influence of liquor. Incensed,
the accused tailed the taxi driver until the latter stopped to make a turn at
[the] Chugum and Carino Streets. The accused also stopped his car,
berated the taxi driver and held him by his shirt. To stop the aggression,
the taxi driver forced open his door causing the accused to fall to the
ground. The taxi driver knew that the accused had been drinking because
he smelled of liquor. Taking pity on the accused who looked elderly, the
taxi driver got out of his car to help him get up. But the accused, by now
enraged, stood up immediately and was about to deal the taxi driver a fist
blow when the latter boxed him on the chest instead. The accused fell
down a second time, got up again and was about to box the taxi driver
but the latter caught his fist and turned his arm around. The taxi driver
held on to the accused until he could be pacified and then released him.
The accused went back to his car and got his revolver making sure that
the handle was wrapped in a handkerchief. The taxi driver was on his
way back to his vehicle when he noticed the eyeglasses of the accused
on the ground. He picked them up intending to return them to the
accused. But as he was handing the same to the accused, he was met by
the barrel of the gun held by the accused who fired and shot him hitting
him on the neck. He fell on the thigh of the accused so the latter pushed
him out and sped off. The incident was witnessed by Antonio Billanes
whose testimony corroborated that of the taxi driver, the complainant in
this case, Roberto Soriano."8
It was the prosecution witness, Antonio Billanes, who came to the aid of
Soriano and brought the latter to the hospital. Because the bullet had
lacerated the carotid artery on the left side of his neck, 9 complainant
would have surely died of hemorrhage if he had not received timely
medical assistance, according to the attending surgeon, Dr. Francisco
Hernandez, Jr. Soriano sustained a spinal cord injury, which caused
paralysis on the left part of his body and disabled him for his job as a taxi
driver.
The trial court promulgated its Decision dated November 29, 2001. On
January 18, 2002, respondent filed an application for probation, which
was granted by the court on several conditions. These included
satisfaction of "the civil liabilities imposed by [the] court in favor of the
offended party, Roberto Soriano."10
According to the unrefuted statements of complainant, Atty. Dizon, who
has yet to comply with this particular undertaking, even appealed the civil
liability to the Court of Appeals.11
In her Report and Recommendation, Commissioner Herbosa
recommended that respondent be disbarred from the practice of law for
having been convicted of a crime involving moral turpitude.
The commissioner found that respondent had not only been convicted of
such crime, but that the latter also exhibited an obvious lack of good
moral character, based on the following facts:
"1. He was under the influence of liquor while driving his car;
"2. He reacted violently and attempted to assault Complainant
only because the latter, driving a taxi, had overtaken him;
49
 "3. Complainant having been able to ward off his attempted
assault, Respondent went back to his car, got a gun, wrapped the
same with a handkerchief and shot Complainant[,] who was
unarmed;
"4. When Complainant fell on him, Respondent simply pushed
him out and fled;
"5. Despite positive identification and overwhelming evidence,
Respondent denied that he had shot Complainant;
"6. Apart from [his] denial, Respondent also lied when he claimed
that he was the one mauled by Complainant and two unidentified
persons; and,
"7. Although he has been placed on probation, Respondent has[,]
to date[,] not yet satisfied his civil liabilities to Complainant." 12
On July 8, 2005, the Supreme Court received for its final action the IBP
Resolution adopting the Report and Recommendation of the Investigating
Commissioner.
We agree with the findings and recommendations of Commissioner
Herbosa, as approved and adopted by the IBP Board of Governors.
Under Section 27 of Rule 138 of the Rules of Court, conviction for a crime
involving moral turpitude is a ground for disbarment or suspension. By
such conviction, a lawyer is deemed to have become unfit to uphold the
administration of justice and to be no longer possessed of good moral
character.13 In the instant case, respondent has been found guilty; and he
stands convicted, by final judgment, of frustrated homicide. Since his
conviction has already been established and is no longer open to
question, the only issues that remain to be determined are as follows: 1)
whether his crime of frustrated homicide involves moral turpitude, and 2)
whether his guilt warrants disbarment.
Moral turpitude has been defined as "everything which is done contrary to
justice, modesty, or good morals; an act of baseness, vileness or
depravity in the private and social duties which a man owes his
fellowmen, or to society in general, contrary to justice, honesty, modesty,
or good morals."14
The question of whether the crime of homicide involves moral turpitude
has been discussed in International Rice Research Institute (IRRI) v.
NLRC,15 a labor case concerning an employee who was dismissed on the
basis of his conviction for homicide. Considering the particular
circumstances surrounding the commission of the crime, this Court
rejected the employer’s contention and held that homicide in that case did
not involve moral turpitude. (If it did, the crime would have been violative
of the IRRI’s Employment Policy Regulations and indeed a ground for
dismissal.) The Court explained that, having disregarded the attendant
circumstances, the employer made a pronouncement that was
precipitate. Furthermore, it was not for the latter to determine conclusively
whether a crime involved moral turpitude. That discretion belonged to the
courts, as explained thus:
"x x x. Homicide may or may not involve moral turpitude depending on
the degree of the crime. Moral turpitude is not involved in every criminal
act and is not shown by every known and intentional violation of statute,
but whether any particular conviction involves moral turpitude may be a
question of fact and frequently depends on all the surrounding
circumstances. x x x."16 (Emphasis supplied)
In the IRRI case, in which the crime of homicide did not involve moral
turpitude, the Court appreciated the presence of incomplete self-defense
and total absence of aggravating circumstances. For a better
understanding of that Decision, the circumstances of the crime are
quoted as follows:
"x x x. The facts on record show that Micosa [the IRRI employee] was
then urinating and had his back turned when the victim drove his fist unto
Micosa's face; that the victim then forcibly rubbed Micosa's face into the
filthy urinal; that Micosa pleaded to the victim to stop the attack but was
ignored and that it was while Micosa was in that position that he drew a
fan knife from the left pocket of his shirt and desperately swung it at the
victim who released his hold on Micosa only after the latter had stabbed
him several times. These facts show that Micosa's intention was not to
slay the victim but only to defend his person. The appreciation in his favor
of the mitigating circumstances of self-defense and voluntary surrender,
plus the total absence of any aggravating circumstance demonstrate that
Micosa's character and intentions were not inherently vile, immoral or
unjust."17
The present case is totally different. As the IBP correctly found, the
circumstances clearly evince the moral turpitude of respondent and his
unworthiness to practice law.
50
Atty. Dizon was definitely the aggressor, as he pursued and shot
complainant when the latter least expected it. The act of aggression
shown by respondent will not be mitigated by the fact that he was hit
once and his arm twisted by complainant. Under the circumstances,
those were reasonable actions clearly intended to fend off the lawyer’s
assault.
We also consider the trial court’s finding of treachery as a further
indication of the skewed morals of respondent. He shot the victim when
the latter was not in a position to defend himself. In fact, under the
impression that the assault was already over, the unarmed complainant
was merely returning the eyeglasses of Atty. Dizon when the latter
unexpectedly shot him. To make matters worse, respondent wrapped the
handle of his gun with a handkerchief so as not to leave fingerprints. In so
doing, he betrayed his sly intention to escape punishment for his crime.
The totality of the facts unmistakably bears the earmarks of moral
turpitude. By his conduct, respondent revealed his extreme arrogance
and feeling of self-importance. As it were, he acted like a god on the
road, who deserved to be venerated and never to be slighted. Clearly, his
inordinate reaction to a simple traffic incident reflected poorly on his
fitness to be a member of the legal profession. His overreaction also
evinced vindictiveness, which was definitely an undesirable trait in any
individual, more so in a lawyer. In the tenacity with which he pursued
complainant, we see not the persistence of a person who has been
grievously wronged, but the obstinacy of one trying to assert a false
sense of superiority and to exact revenge.
It is also glaringly clear that respondent seriously transgressed Canon 1
of the Code of Professional Responsibility through his illegal possession
of an unlicensed firearm 18 and his unjust refusal to satisfy his civil
liabilities.19 He has thus brazenly violated the law and disobeyed the
lawful orders of the courts. We remind him that, both in his attorney’s
oath20 and in the Code of Professional Responsibility, he bound himself to
"obey the laws of the land."
All told, Atty. Dizon has shown through this incident that he is wanting in
even a basic sense of justice. He obtained the benevolence of the trial
court when it suspended his sentence and granted him probation. And
yet, it has been four years21 since he was ordered to settle his civil
liabilities to complainant. To date, respondent remains adamant in
refusing to fulfill that obligation. By his extreme impetuosity and
intolerance, as shown by his violent reaction to a simple traffic altercation,
he has taken away the earning capacity, good health, and youthful vigor
of his victim. Still, Atty. Dizon begrudges complainant the measly amount
that could never even fully restore what the latter has lost.
Conviction for a crime involving moral turpitude may relate, not to the
exercise of the profession of lawyers, but certainly to their good moral
character.22 Where their misconduct outside of their professional dealings
is so gross as to show them morally unfit for their office and unworthy of
the privileges conferred upon them by their license and the law, the court
may be justified in suspending or removing them from that office. 23
We also adopt the IBP’s finding that respondent displayed an utter lack of
good moral character, which is an essential qualification for the privilege
to enter into the practice of law. Good moral character includes at least
common honesty.24
In the case at bar, respondent consistently displayed dishonest and
duplicitous behavior. As found by the trial court, he had sought, with the
aid of Vice-Mayor Daniel Fariñas, an out-of-court settlement with
complainant’s family.25 But when this effort failed, respondent concocted
a complete lie by making it appear that it was complainant’s family that
had sought a conference with him to obtain his referral to a
neurosurgeon.26
The lies of Atty Dizon did not end there. He went on to fabricate an
entirely implausible story of having been mauled by complainant and two
other persons.27 The trial court had this to say:
"The physical evidence as testified to by no less than three (3) doctors
who examined [Atty. Dizon] does not support his allegation that three
people including the complainant helped each other in kicking and boxing
him. The injuries he sustained were so minor that it is improbable[,] if not
downright unbelievable[,] that three people who he said were bent on
beating him to death could do so little damage. On the contrary, his
injuries sustain the complainant’s version of the incident particularly when
he said that he boxed the accused on the chest. x x x."28
Lawyers must be ministers of truth. No moral qualification for bar
membership is more important than truthfulness. 29The rigorous ethics of
the profession places a premium on honesty and condemns duplicitous
behavior.30 Hence, lawyers must not mislead the court or allow it to be
misled by any artifice. In all their dealings, they are expected to act in
good faith.
51
The actions of respondent erode rather than enhance public perception of
the legal profession. They constitute moral turpitude for which he should
be disbarred. "Law is a noble profession, and the privilege to practice it is
bestowed only upon individuals who are competent intellectually,
academically and, equally important, morally. Because they are
vanguards of the law and the legal system, lawyers must at all times
conduct themselves, especially in their dealings with their clients and the
public at large, with honesty and integrity in a manner beyond
reproach."31
respondent clearly show his unworthiness to continue as a member of the
bar.
WHEREFORE, RESPONDENT MANUEL DIZON is
hereby DISBARRED, and his name is ORDERED STRICKEN from the
Roll of Attorneys. Let a copy of this Decision be entered in his record as a
member of the Bar; and let 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 foregoing abhorrent acts of respondent are not merely dishonorable; SO ORDERED.
they reveal a basic moral flaw. Considering the depravity of the offense
he committed, we find the penalty recommended by the IBP proper and
commensurate.
FIRST DIVISION
The purpose of a proceeding for disbarment is to protect the
administration of justice by requiring that those who exercise this
important function be competent, honorable and reliable -- lawyers in
whom courts and clients may repose confidence. 32 Thus, whenever a
clear case of degenerate and vile behavior disturbs that vital yet fragile G.R. No. 63145 October 5, 1999
confidence, we shall not hesitate to rid our profession of odious
members. SULPICIA VENTURA, petitioner,
vs.
We remain aware that the power to disbar must be exercised with great HON. FRANCIS J. MILITANTE, in His Capacity as Presiding Judge,
caution, and that disbarment should never be decreed when any lesser Regional Trial Court, 7th Judicial District, Branch XII, Cebu City; and
penalty would accomplish the end desired. In the instant case, however, JOHN UY, respondent.
the Court cannot extend that munificence to respondent. His actions so
despicably and wantonly disregarded his duties to society and his PUNO, J.:
profession. We are convinced that meting out a lesser penalty would be
irreconcilable with our lofty aspiration for the legal profession -- that every This is a Petition for Certiorari assailing the Order 1 of public respondent
lawyer be a shining exemplar of truth and justice. directing her to file an Answer to the Complaint for a Sum of Money with
Damages filed by private respondent after denying her Motion to
We stress that membership in the legal profession is a privilege Dismiss. 2
demanding a high degree of good moral character, not only as a
condition precedent to admission, but also as a continuing requirement There is no dispute as to the following relevant facts:
for the practice of law. Sadly, herein respondent has fallen short of the
exacting standards expected of him as a vanguard of the legal Private respondent filed a Complaint for a Sum of Money and Damages
profession. against petitioner which reads:

In sum, when lawyers are convicted of frustrated homicide, the attending REPUBLIC OF THE PHILIPPINES
circumstances – not the mere fact of their conviction – would COURT OF FIRST INSTANCE OF CEBU
demonstrate their fitness to remain in the legal profession. In the present 14th Judicial District
case, the appalling vindictiveness, treachery, and brazen dishonesty of BRANCH ___

52
MR. JOHN UY, Proprietor of Cebu
Textar Auto Supply,
Plaintiff,
-versus- CIVIL CASE NO. R-21968
For: SUM OF MONEY AND
DAMAGES
ESTATE OF CARLOS NGO as
represented by surviving
spouse Ms. SULPICIA VENTURA,
Defendant.
COMPLAINT
PLAINTIFF, thru counsel, unto this Honorable Court, most
respectfully states that:
1. He is of legal age, Filipino and proprietor of Cebu Textar Auto
Supply whose postal address is at 177 Leon Kilat St., Cebu City,
while the defendant is an estate of Carlos Ngo as represented by
surviving spouse Ms. Sulpicia Ventura with residence and postal
address at-Back [sic] of Chong Hua Hospital, Cebu City where
summons and other processes of the Court could be effected;
2. During the lifetime of Carlos Ngo he was indebted with the
plaintiff in the amount of P48,889.70 as evidenced by the hereto
attached statement marked as Annexes A and A-1 which account
was obtained by him for the benefit of his family;
3. Said obligation is already due and demandable and the
defendant thru Ms. Ventura who is ostensibly taking care of the
properties/estate of deceased Carlos Ngo, refused, failed and
neglected and still continues to refuse, fail and neglect to pay
despite repeated demands;
4. As a consequence of the refusal to pay the plaintiff was
compelled to retain the services of counsel with whom he
contracted to pay P10,000.00 as attorney's fees. Upon institution
of this complaint, he has further incurred initial litigation
expenditures in the sum of P4,000.00. 1âwphi1.nêt
WHEREFORE, this Honorable Court is most respectfully prayed
to render judgment for the plaintiff by —
1. Ordering the defendant to pay the plaintiff the sum of
P48,889.70 plus interest until the obligation is fully paid;
2. Ordering the defendant to pay the plaintiff the amount of
P10,000.00 as attorney's fees plus P4,000.00 as reimbursement
of the initial litigation expenditures.
FURTHER plaintiff prays for such other relief or remedy in
accordance with law, justice and equity.
Cebu City, Philippines, March 29, 1982.
xxx xxx xxx 3
Petitioner moved to dismiss the foregoing complaint on the ground that
"the estate of Carlos Ngo has no legal personality," the same being
"neither a natural nor legal person in contemplation of law" 4 .
In his Opposition to Motion to Dismiss, 5 petitioner insisted that since "the
money claim subject of this case actually represents the costs of
automotive spare parts/replacements contracted by deceased Carlos
Ngo during his lifetime for the benefit/business of the family . . . the
conjugal partnership . . . shall be accountable for the payment
thereof." 6 Subsequently, private respondent's counsel manifested that he
is poised to "amend the complaint in order to state the correct party
defendant that he intends to sue in this case" 7. The public respondent
gave private respondent fifteen (15) days to make the amendment.
Petitioner filed a Motion for Reconsideration 8 of the order of public
respondent permitting private respondent to amend his complaint. First,
she argued that the action instituted by the private respondent to recover
P48,889.70, representing the unpaid price of the automotive spare parts
purchased by her deceased husband during his lifetime, is a money claim
which, under Section 21, Rule 3 of the Revised Rules of Court, does not
survive, the same having been filed after Carlos Ngo had already
died. Second, she claimed that the public respondent never acquired
jurisdiction over the subject matter of the case which, being an action to
recover a sum of money from a deceased person, may only be heard by
a probate court.
53
Private respondent opposed the foregoing motion. 9 He insisted that
petitioner, being the wife of the deceased Carlos Ngo, is liable to pay the
obligation which benefited their family.
Public respondent issued an Order giving private respondent twenty four
(24) hours to file his amended complaint "so that the Court can determine
for itself whether there is really a cause of action against the defendant
who would be substituted to the Estate of Carlos Ngo," considering that
"it would seem from the arguments of counsel for plaintiff . . . that the
debt incurred by the deceased Carlos [sic] Ngo was in behalf of the
conjugal partnership so that the wife of Carlos Ngo might be liable to pay
the obligation." 10
Private respondent then filed his Amended Complaint 11
with the new
allegations underscored therein as follows:
REPUBLIC OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF CEBU
14th Judicial District
BRANCH XII
MR. JOHN UY, Proprietor of Cebu
Textar Auto Supply,
Plaintiff,
-versus- CIVIL CASE NO. R-21968
For: SUM OF MONEY AND
MS. SULPICIA VENTURA, DAMAGES
Defendant.
AMENDED COMPLAINT
PLAINTIFF thru counsel, unto this Honorable Court most
respectfully states that:
1. . . .
2. During the lifetime of Carlos Ngo he and his wife, the
defendant herein are indebted with the plaintiff in the amount of
P48,889.70 as evidenced by the hereto attached statement
marked as Annexes A and A-1 which account was obtained for
the benefit of their family and is being confirmed by their son Roy
Ngo per his signature marked as Annex "A-2";
3. . . .
4. For several times, the defendant had concealed herself in her
house when the plaintiff's representative went to her residence to
collect payment of the said account;
5. . . .
xxx xxx xxx12
Petitioner filed a Comment to Plaintiff's Amended Complaint.13 She
reiterated that whether the unsecured debt was contracted by her
husband alone or as a charge against the conjugal partnership of gains, it
cannot be denied that her husband was now deceased, the said debt
does not survive him, the conjugal partnership of gains is terminated
upon the death of one of the spouses, and the debts and charges against
the conjugal partnership of gains may only be paid after an inventory is
made in the appropriate testate or intestate proceeding.
Private respondent filed a Rejoinder to Defendant's Comment. 14 He
countered that the defendant in his amended complaint was now
petitioner and that she was not deceased, hence the inapplicability of the
legal rules on the abatement of money claims in case the defendant dies
pending their prosecution.
Public respondent issued the herein assailed order which reads as
follows:
ORDER
This case is called today to deal on the motion for reconsideration
of the order of this Court dated November 16, 1982 denying the
motion of the defendant to dismiss the complaint.
In its order of November 16, 1982, the Court in the interest of
justice advised the plaintiff to make the proper amendment so
that the proper party defendant may be impleaded considering
that the motion to dismiss then was anchored on the ground that
the estate of Carlos Ngo was not a natural nor juridical person,
hence it could not be sued. On December 23, 1982, the plaintiff
amended its complaint and this time the defendant is already
Sulpicia Ventura. The defendant now argues that even the
amended complaint would show that this is really a collection of a
debt of the conjugal partnership of deceased Carlong [sic] Ngo
and his wife.
Perusing the amended complaint, the Court finds that in
Paragraph 2 the allegation states: "During the lifetime of Carlos
Ngo, he and his wife, the defendant, are indebted with the plaintiff
in the amount of P48,689.70, (sic) etc.," so that the indebtedness
was incurred by Carlos Ngo and defendant Sulpicia Ventura and
54
 since Carlos Ngo is now dead that will not preclude the plaintiff
from filing a case against the living defendant, Sulpicia Ventura.
WHEREFORE, the motion for reconsideration is hereby DENIED
and the defendant may file her answer within fifteen (15) days
from today.
IT IS SO ORDERED. 15
Petitioner scurried to this Court praying that the foregoing order of the
public respondent be set aside and the amended complaint of private
respondent, ordered dismissed. 16
We grant the petition.
First. Sec. 1, Rule 3 of the Revised Rules of Court provided that "only
natural or judicial persons, or entities authorized by law may be parties in
a civil action". This was the rule in 1982 at the time that private
respondent filed his complaint against petitioner. In 1997, the rules on
civil procedure were revised, but Sec. 1, Rule 3 remained largely
unaltered, except for the change of the word, "judicial" to "juridical".
Parties may be either plaintiffs or defendants. The plaintiff in an action is
the party complaining, and a proper party plaintiff is essential to confer
jurisdiction on the court.17 In order to maintain an action in a court of
justice, the plaintiff must have an actual legal existence, that is, he, she or
it must be a person in law and possessed of a legal entity as either a
natural or an artificial person, and no suit can be lawfully prosecuted save
in the name of such a person. 18
The rule is no different as regards party defendants. It is incumbent upon
a plaintiff, when he institutes a judicial proceeding, to name the proper
party defendant to his cause of action. 19 In a suit or proceeding
in personam of an adversary character, the court can acquire no
jurisdiction for the purpose of trial or judgment until a party defendant who
actually or legally exists and is legally capable of being sued, is brought
before it. 20 It has even been held that the question of the legal personality
of a party defendant is a question of substance going to the jurisdiction of
the court and not one of procedure. 21
The original complaint of petitioner named the "estate of Carlos Ngo as
represented by surviving spouse Ms. Sulpicia Ventura" as the defendant.
Petitioner moved to dismiss the same on the ground that the defendant
as named in the complaint had no legal personality. We agree.
Neither a dead person nor his estate may be a party plaintiff in a court
action. A deceased person does not have such legal entity as is
necessary to bring action so much so that a motion to substitute cannot
lie and should be denied by the court. 22 An action begun by a decedent's
estate cannot be said to have been begun by a legal person, since an
estate is not a legal entity; such an action is a nullity and a motion to
amend the party plaintiff will not likewise lie, there being nothing before
the court to amend. 23 Considering that capacity to be sued is a correlative
of the capacity to sue, to the same extent, a decedent does not have the
capacity to be sued and may not be named a party defendant in a court
action. 24
Second. It is clear that the original complaint of private respondent
against the estate of Carlos Ngo was a suit against Carlos Ngo himself
who was already dead at the time of the filing of said complaint. At that
time, and this private respondent admitted, no special proceeding to
settle his estate had been filed in court. As such, the trial court did not
acquire jurisdiction over either the deceased Carlos Ngo or his estate.
To cure this fatal defect, private respondent amended his original
complaint. In his amended complaint, private respondent deleted the
estate of Carlos Ngo and named petitioner as the defendant. When
petitioner, in her comment to the amended complaint, reasoned that the
conjugal partnership of gains between her and Carlos Ngo was
terminated upon the latter's death and that the debt which he contracted,
assuming it was a charge against the conjugal property, could only be
paid after an inventory is made in the appropriate testate or intestate
proceeding, private respondent simply reiterated his demand that
petitioner pay her husband's debt which, he insisted, redounded to the
benefit of everyone in her family.
It is true that amendments to pleadings are liberally allowed in
furtherance of justice, in order that every case may so far as possible be
determined on its real facts, and in order to speed the trial of causes or
prevent the circuitry of action and unnecessary expense. 25 But
amendments cannot be allowed so as to confer jurisdiction upon a court
that never acquired it in the first place. 26 When it is evident that the court
has no jurisdiction over the person and the subject matter and that the
pleading is so fatally defective as not to be susceptible of amendment, or
that to permit such amendment would radically alter the theory and the
55
nature of the action, then the court should refuse the amendment of the
defective pleading and order the dismissal of the case. 27
Moreover, as correctly argued by petitioner, the conjugal partnership
terminates upon the death of either spouse. 28After the death of one of the
spouses, in case it is necessary to sell any portion of the conjugal
property in order to pay outstanding obligations of the partnership, such
sale must be made in the manner and with the formalities established by
the Rules of Court for the sale of the property of deceased
persons. 29 Where a complaint is brought against the surviving spouse for
the recovery of an indebtedness chargeable against said conjugal
property, any judgment obtained thereby is void. 30 The proper action
should be in the form of a claim to be filed in the testate or intestate
proceedings of the deceased spouse. 31
In many cases as in the instant one, even after the death of one of the
spouses, there is no liquidation of the conjugal partnership. This does not
mean, however, that the conjugal partnership continues. 32 And private
respondent cannot be said to have no remedy. Under Sec. 6, Rule 78 of
the Revised Rules of Court, he may apply in court for letters of
administration in his capacity as a principal creditor of the deceased
Carlos Ngo if after thirty (30) days from his death, petitioner failed to
apply for administration or request that administration be granted to some
other person.1âwphi1.nêt
WHEREFORE, the instant petition for certiorari is GRANTED. The
Amended Complaint filed by private respondent is HEREBY DISMISSED.
SO ORDERED.
SECOND DIVISION
G.R. No. 111682 February 6, 1997
ZENAIDA REYES, petitioner,
vs.
COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, respondents.
MENDOZA, J.:
RESOLUTION
This is a motion for reconsideration of the resolution dated November 29,
1995, of the Court, denying the petition for review of the decision, dated
May 28, 1993, and the resolution, dated August 30, 1993, of the Court of
Appeals1 in CA-G.R. CR. No. 08410, affirming the conviction of petitioner
Zenaida P. Reyes of falsification of public document. Petitioner's motion
is based on her contention that because of her counsel's unexplained
absences at the trial she was prevented from presenting evidence in her
defense and therefore denied the due process of law.
The facts are as follows:
In an information filed on April 7, 1986 with the Regional Trial Court of
Bulacan and later assigned to Branch 22 thereof as Criminal Case No.
9252-M, petitioner Zenaida Reyes was accused of falsifying a deed of
sale of four (4) parcels of land "by feigning and signing the name of Pablo
Floro, who could not affix his signature anymore due to age infirmity, on
the said document as seller and causing it to appear that said Pablo Floro
[had] participated in the execution of the said document when in truth and
in fact, as said accused well knew, said deed of sale was not executed
and signed by the said Pablo Floro, nor did he ever appear before any
notary public for the purpose of acknowledging the deed above
mentioned." 2
Upon being arraigned, petitioner pleaded not guilty. Trial on the merits
then followed. After the prosecution had rested its case, the presentation
of the defense evidence was scheduled on February 6, 1989, which,
however, was reset "for the last time" to March 10, 1989 due to
petitioner's illness.3 The hearing on March 10, 1989 was, however,
cancelled also because of the absence of both the private prosecutor and
defense counsel, Atty. Analuz Cristal-Tenorio. The new schedule was
April 12, 1989.4 However, Atty. Tenorio was again absent on April 12,
1989. Petitioner was also absent, but her husband appeared and
submitted to the court a medical certificate that she was sick. The hearing
on that date was therefore postponed to May 17, 1989 "[f]or the last time.
"5
56
On May 11, 1989, Atty. Tenorio moved for the postponement of the
hearing from May 17, 1989 to June 5, 1989, allegedly because she had
to leave for Malaybalay, Bukidnon to assist in the prosecution of her
brother-in-law's killers. The trial court, while noting that the hearing on
May 17, 1989 was "intransferrable in character," nonetheless granted
Atty. Tenorio's motion and postponed the hearing to June 5, 1989 over
the objection of the private prosecutor. Petitioner was warned that if she
did not present her evidence on that date, she would be considered to
have waived her right to do so.6 But the hearing on June 5, 1989 had to
be rescheduled again because petitioner's counsel, Atty. Tenorio, was
absent.7
On July 10, 1989, the new date of hearing, both petitioner and Atty.
Tenorio were absent, so that on motion of private prosecutor, the court
declared petitioner to have waived the right to present her
evidence.8 Four days later (on July 14, 1989), petitioner gave a medical
certificate9 stating that she was suffering from hypertension and
rheumatism which required bed rest for at least 5-7 days. The court
merely noted the medical certificate but maintained its previous order, on
the ground that "the same is not a motion and [as] counsel was also not
in Court during the last hearing, the Order of the Court dated July 10,
1989 to the effect that the presentation of defense evidence is considered
waived, stands. " 10
Petitioner by herself moved for reconsideration, alleging that she failed to
appear in court on July 10, 1989 because she was indisposed and had
been unable to contact Atty. Tenorio. She asked for permission to
present her evidence. Her motion, however, was denied by the court in its
order of August 29, 1989 11 in which it also scheduled the promulgation of
judgment on September 29, 1989.
On September 29, 1989, the court rendered its decision 12 finding
petitioner guilty of falsification and sentencing her to 4 months of arresto
mayor, as minimum, to 4 years and 2 months of prision correccional, as
maximum, and to pay a fine of P5,000.00.
Petitioner through a new counsel, Atty. Ronolfo S. Pasamba, filed a
notice of appeal. 13 On May 9, 1990, petitioner by herself filed a motion in
the Court of Appeals for extension of 30 days to file her brief as
appellant. 14 About the same time Atty. Pasamba also filed a motion for an
extension of 45 days for the same purpose, but later asked to be relieved
as petitioner's counsel on the ground that despite his request, petitioner
did not give him the records of the case and confer with him but instead
acted as her own counsel by filing her own motion for time to file brief.
The Court of Appeals granted Atty. Pasamba's motion and required
petitioner to submit the name and address of her new counsel within ten
(10) days from notice. Petitioner instead filed a motion for new trial in lieu
of appellant's brief, claiming that because of the negligence of her
counsel, she had been deprived of her right to present evidence on her
behalf in the trial court.
After the Solicitor General filed his comment, the Court of Appeals in its
resolution dated January 15, 1992 denied petitioner's motion for new trial
and gave her 30 days within which to file her appellant's brief. 15 The
appellate court held:
All that appellant is invoking as ground for new trial is the policy of
liberality in the application of the rules and the alleged negligence
of her counsel.
Appellant, who has, in fact, prepared the motion herself, without
the assistance of counsel, is probably a member of the Bar. If she
is not, she must have gone through law school as her handiwork
is written in forensic style and is even better than the pleadings of
some licensed advocates who are handling appealed cases or
original special civil actions before this Court.
Under the Rules the grounds for new trial are
(a) That errors of law or irregularities have been
committed during the trial prejudicial to the substantial
nights of the accused; and
(b) That new and material evidence has been discovered
which the accused could not with reasonable diligence
have discovered and produced at the trial, and which if
introduced and admitted, would probably change the
judgment. (Rule 121, Section 2)
There is not even a wee bit of a hint about the second ground.
So, in effect, what the accused would want of Us is to bend over
backwards and in a gesture of liberality consider as an error of
law or as an irregularity the trial court's conclusion that she was
deemed to have waived her right to present evidence in her
defense. In connection with this course of action she already filed
before the trial court a motion for reconsideration: this was
57
 denied, whereupon the trial court proceeded to rendition of the
judgment appealed from by the accused to this court.
We have meticulously gone over the entire record, and We find
that accused appellant was not at all deprived of her day in court
or denied due process. She was afforded ample opportunity to
present evidence in her defense.
Regardless of the nature of the offense charged, a criminal case,
even if it involves only a light offense, the penalty for which might
be mere censure, is a serious matter that deserves equally
serious attention by the one accused. The appellant, it seems
never gave to this case while it was still at the lower court the
serious attention that it deserves. For good reason — repeated
absences of the accused and her counsel — the trial court was
eventually constrained to consider the accused to have waived
the presentation of evidence in her defense. As pointed out by the
Solicitor General, it is settled in our jurisprudence that dilatory
moves by the accused that tend to defeat the expeditious
termination of a criminal case is tantamount to trifling with the
administration of justice that certainly can not and should not be
condoned. (PP vs. Angco, 103 Phil. 33; PP vs. Dichoso, 96
SCRA 957)
Petitioner filed a "very urgent motion" for 90 days from February 22, 1992
to secure services of counsel to file her appellant's brief. The Court of
Appeals gave petitioner 15 days from February 22, 1992, the last day of
the extension previously granted her. The Court of Appeals stated that it
had given petitioner notice to file brief as early as March 27, 1990, but
"petitioner has been trifling with our judicial processes long enough."
On March 6, 1992, without the assistance of counsel, accused-appellant
filed an appellant's brief. Thereafter the Solicitor General filed the
appellee's brief to which petitioner filed a reply brief. On May 28, 1993,
the Court of Appeals rendered its decision, affirming the trial court's
ruling. On August 30, 1993 it denied reconsideration.
Petitioner filed this case for review on certiorari, claiming that her
conviction by the trial court was void because she was denied due
process, since she was denied the opportunity to present evidence in her
behalf. The Solicitor General filed his comment to which petitioner filed a
reply. On November 29, 1995 this Court denied the petition for lack of
merit. Hence this motion for reconsideration.
After due consideration of the motion and its supplement and the
separate comments thereto by the respondents as well as petitioner's
replies and private respondent's consolidated rejoinder, the Court now
resolves to grant petitioner's motion for reconsideration.
First. The issue in this case is whether the trial court properly held
petitioner to have waived the right to present evidence because of her
failure to proceed despite several postponements granted to her. To be
sure, the postponement of the trial of a case to allow the presentation of
evidence of a party is a matter which lies in the discretion of the trial
court, but it is a discretion which must be exercised wisely, considering
the peculiar circumstances obtaining in each case and with a view to
doing substantial justice. 16 In the case at bar, hearings were scheduled
for die presentation of petitioner's evidence on six different dates, to wit:
(1) February 6, 1989; (2) March 10, 1989; (3) April 12, 1989; (4) May 17,
1989; (5) June 5, 1989; and (6) July 10, 1989. Petitioner was absent
thrice, i.e., on February 6, 1989, April 12, 1989, and July 10, 1989. On
the first date, petitioner could not come because she was sick and her
counsel so informed the court. She was absent also on June 5, 1989 and
July 10, 1989 because of illness (hypertension and rheumatism). Thus,
while petitioner's absences were explained, those of her counsel were
not. Atty. Tenorio simply disappeared without a trace, despite warning to
counsel that her failure to present evidence for her client on June 5, 1989
would be considered a waiver of the latter's right to present her evidence.
But counsel failed to heed the warning. Petitioner had to soldier on and,
by herself, had to plead with the court for a chance to present her
evidence. Contrary to what the appellate court thought in affirming
petitioner's conviction, this was not the case of a woman who treated the
criminal proceedings against her with cavalier disdain. Indeed, we do not
think that petitioner's absences were so many, capricious, or egregious
as to indubitably indicate an attempt to stall the proceedings of the
criminal case as was the case in People v. Angco 17 and People
v. Dichoso. 18 Petitioner might have tried to delay the filing of her
appellant's brief, but her effort can be attributed to an understandable
desire to be allowed to present her evidence. Hence, the filing of a motion
for new trial. Even in her present petition before this Court petitioner's
prayer is not that she be exonerated but only that she be given the
chance to prove her innocence by being allowed to present her evidence.
Respondent People and the counsel for the private respondent oppose
petitioner's motion. They point out that, unlike the cases 19 which
petitioner cites in support of her motion, petitioner herself was negligent.
They contend that she could not have been unaware of the absences of
her lawyer but despite that she did nothing to protect her interests.
58
Private respondent argues that "if granted a second chance to present
her side, nothing will stop the petitioner from once again engaging the
services of her erstwhile absentee counsel. Anyway, after another 10
years of litigation, she can easily sound her reliable refrain: 'I was denied
due process! I was ready to present my evidence, but my lawyer was
absent for five consecutive times'. . . ."
Private respondent's contention is exaggerated. Of course there is a limit
to petitioner's credibility should she repeat what had happened here just
for delay, not to mention that she would be taking a big risk of losing her
defense. As for the private respondent's argument that petitioner should
have gotten another lawyer, only with the benefit of hindsight does this
course appear to be the only tenable one to take. Petitioner might have
thought that her counsel would be more sedulous in her behalf. Or
perhaps petitioner tried to get another counsel, but failed and, left with no
choice, stuck it out with Atty. Tenorio and simply hoped for the best rather
than be left without a counsel. In any case, the fact that on May 17, 1989
and June 5, 1989 petitioner was present even when counsel was absent
tends to negate an intention to delay the criminal proceedings.
It was Atty. Tenorio's absences, then, rather than petitioner's, which
appear to be the cause for the defense's failure to present its evidence.
Atty. Tenorio's negligence did not consist in error of procedure or even a
lapse in strategy but something as basic as failing to appear in court
despite clear warning that such failure would amount to waiver of her
client's right to present evidence in her defense.
Keeping in mind that this case involves personal liberty, the negligence of
counsel was certainly so gross that it should not be allowed to prejudice
petitioner's constitutional right to be heard. The judicial conscience
certainly cannot rest easy on a conviction based solely on the evidence of
the prosecution just because the presentation of the defense evidence
had been barred by technicality. Rigid application of rules must yield to
the duty of courts to render justice where justice is due — to secure to
every individual all possible legal means to prove his innocence of a
crime with which he or she might be
charged. 20
Only last year, this Court set aside its decision after finding that the right
of the accused to due process had been violated. In De Guzman
v. Sandiganbayan, 21 this Court set aside its decision affirming petitioner's
conviction by the Sandiganbayan and its resolution denying
reconsideration, after being shown that petitioner's conviction had been
brought about by his counsel's gross ignorance of law and procedure.
The Court held:
Petitioner's present dilemma is certainly not something
reducible to pesos and centavos. No less than his liberty
is at stake here. And he is just about to lose it simply
because his former lawyers pursued a carelessly
contrived procedural strategy of insisting on what has
already become an imprudent remedy, which thus
forbade petitioner from offering his evidence all the while
available for presentation before the Sandiganbayan.
Under the circumstances, higher interests of justice and
equity demand that petitioner be not penalized for the
costly importunings of his previous lawyers based on the
same principles why this Court had, on many occasions
where it granted new trial, excused parties from the
negligence or mistakes of counsel. To cling to the general
rule in this case is only to condone rather than rectify a
serious injustice to petitioners whose only fault was to
repose his faith and entrust his innocence to his previous
lawyers. . . .
The Court remanded the case to the Sandiganbayan for reception and
appreciation of petitioner's evidence.
In another case, People v. Del Mundo, 22 in which the accused was
convicted of rape in six cases and sentenced to reclusion perpetua on
five of them and to death on the sixth, this Court ordered a new trial after
it was shown that complainant had executed prior to accused's conviction
an affidavit of desistance, while an NBI medico-legal report given after
such conviction found that complainant's "physical virginity preserved."
The report belied the contrary finding of the city health officer on which
the trial court relied in convicting the accused. Although the NBI report did
not constitute newly-discovered evidence, a new trial was nonetheless
ordered "on the broader ground of substantial justice [as] the rule for
granting a motion for new trial, among others, should be liberally
construed to assist the parties in obtaining a just and speedy
determination of their rights. . . . Court litigations are primarily for the
search for truth, and a liberal interpretation of the rules by which both
parties are given the fullest opportunity to adduce proofs is the best way
to ferret out such truth."
Reconsideration of the resolution in this case is compelled by these
precedents. Indeed, to deny petitioner the opportunity to present her
59
evidence on the merest chance that she might be innocent would be to
disregard the wisdom that it is better to acquit ten guilty individuals than
to convict one innocent person. The Court is as aware as anyone of the
need for the speedy disposition of cases. At the same time, however, it
has ever been mindful of its responsibility as the highest tribunal of justice
to see to it that the paramount interests of justice are not sacrificed for the
sake of speed and efficiency. As Justice Teehankee wrote: 23
The Court has consistently maintained that although a
speedy determination of an action implies a speedy trial,
speed is not the chief objective of a trial. Careful and
deliberate consideration for the administration of justice, a
genuine respect for the rights of all parties and the
requirements of procedural due process and an
adherence to the Court's standing admonition that the
discretion granted judges in the granting or denial of
motions for postponement and the setting aside of denial
orders previously issued "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 would be served thereby" are more important
than a race to end the trial.
Second. In denying petitioner's plea for a chance to present her
evidence, the Court of Appeals observed that petitioner has more than a
layman's acquaintance with the law, having been able to prepare and file
her own motion for new trial and appellant's brief, to be given the benefit
of the doubt. But even lawyers, who are parties in a case, need the
guiding hand of counsel. Skill in drafting pleadings (which is practically
the only "lawyerly" thing petitioner did) is vastly different from skill needed
in the courtroom. Preparing pleadings can be done at leisure with the
luxury of consultation, either of books or of people. Trial work, however,
demands more. It requires the ability to think fast on one's feet and the
psychologist's feel for the witness' mood and motive. As then Chief
Justice Moran said for the Court in People v. Holgado: 24
Even the most intelligent or educated man may have no
skill in the science of the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not
because he is guilty but because he does not know how
to establish his innocence.
It is entirely probable that, forced to be her own lawyer, petitioner
nonetheless felt some inadequacy and experienced some moments of
doubt whether she could go through the ordeal of presenting her
evidence by her lonesome, and that could be the reason why she
hesitated from doing so when she found herself without the assistance of
counsel and not because petitioner tried to delay the proceedings and
obstruct the course of justice.
In sum, it is better to allow petitioner another chance to present her
evidence than to let her conviction stand based solely on the evidence of
the prosecution. In accordance with Rule 121, §6, 25 the evidence of the
prosecution shall be understood preserved, subject to the right of the
prosecution to supplement it and/or to rebut the evidence which petitioner
may present.
WHEREFORE, the motion for reconsideration of the resolution of
November 29, 1995 is GRANTED and the decision dated May 28, 1993
of the Court of Appeals and that of the Regional Trial Court of Bulacan,
Branch 22 dated September 29, 1989 in Criminal Case No. 9252-M are
SET ASIDE and this case is REMANDED to the Regional Trial Court of
Bulacan for a new trial for the purpose of allowing petitioner to present
evidence in her defense with directive to the court thereafter to decide the
case with all deliberate speed.
SO ORDERED.
SECOND DIVISION
G.R. No. 109149 December 21, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEONCIO SANTOCILDES, JR. y SIGA-AN, accused-appellant.
QUISUMBING, J.:
Where an accused was not duly represented by a member of the
Philippine Bar during trial, the judgment should be set aside and the case
60
remanded to the trial court for a new trial. A person who misrepresents
himself as a lawyer shall be held liable for indirect contempt of court.
Subject of the present appeal is the decision dated October 29, 1992, of
the Regional Trial Court of Iloilo City, Branch 33, convicting accused-
appellant of the crime of rape, sentencing him to suffer the penalty
of reclusion perpetua, and ordering him to pay the offended party the
amount of P50,000.00 and to pay the costs.
The antecedent facts of the case are as follows:
On February 17, 1992, appellant was charged with the crime of rape 1 of
a girl less than nine (9) years old, committed on December 28, 1991, in
the town of Barangay San Luis, San Joaquin, Iloilo.
Upon arraignment, appellant entered a plea of not guilty. Trial ensued
and the prosecution presented as its witnesses the victim, her mother,
her six (6) year-old playmate, and the medico-legal officer who examined
the victim.
For the defense, appellant presented one German Toriales and himself.
Appellant denied committing the rape and claimed that he merely tried to
stop the two girls, the victim and her playmate, from quarreling.
On October 29, 1992, the trial court rendered a decision 2 finding
appellant guilty as charged. The dispositive portion of the decision states:
WHEREFORE, the Court finds the accused guilty beyond
reasonable doubt of the crime of rape and sentences him to
suffer the penalty of reclusion perpetua together its accessory
penalty. The accused is ordered to pay the amount of P50,000.00
to the complainant and another amount for costs, without
subsidiary penalty in case of failure to pay the civil liability and the
cost.
If qualified under Art. 29 of the Revised Penal Code, as amended
by R.A. 6127, as amended, and he has agreed in writing to abide
by the same rules imposed upon convicted prisoners, he shall be
credited with the full duration of his preventive imprisonment;
otherwise, he shall only be credited with 4/5 of the same.
SO ORDERED.
Hence, appellant duly filed a Notice of Appeal. 3 In his brief, 4 appellant
made the following assignment of errors:
I. THE HONORABLE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN FINDING THAT THE ACCUSED IS
GUILTY OF RAPE INSPITE OF CONFLICTING TESTIMONIES
OF THE PRIVATE COMPLAINANT AND HER WITNESSES ON
MATERIAL POINTS.
II. THAT THE ACCUSED-APPELLANT WAS DEPRIVED
THOUGH NO FAULT OF HIS OWN TO BE DEFENDED BY A
PERSON AUTHORIZED TO PRACTICE LAW AMOUNTING TO
DENIAL OF DUE PROCESS.
Considering the importance of the constitutional right to counsel, we shall
now first resolve the issue of proper representation by a member of the
bar raised by appellant.
Appellant contends that he was represented during trial by a person
named Gualberto C. Ompong, who for all intents and purposes acted as
his counsel and even conducted the direct examination and cross-
examinations of the witnesses. On appeal, however, appellant secured
the services of a new lawyer, Atty. Igmedio S. Prado, Jr., who discovered
that Gualberto C. Ompong is actually not a member of the bar. Further
verification with the Office of the Bar Confidant confirmed this
fact. 5 Appellant therefore argues that his deprivation of the right to
counsel should necessarily result in his acquittal of the crime charged.
The Office of the Solicitor General, on the other hand, maintains that
notwithstanding the fact that appellant's counsel during trial was not a
member of the bar, appellant was afforded due process since he has
been given an opportunity to be heard and the records reveal that said
person "presented the evidence for the defense with the ability of a
seasoned lawyer and in general handled the case of appellant in a
professional and skillful manner." However, the right of the accused to be
heard by himself and his counsel, in our view, goes much deeper than
the question of ability or skill. It lies at the heart of our adversarial system
of justice. Where the interplay of basic rights of the individual may collide
with the awesome forces of the state, we need a professional learned in
the law as well as ethically committed to defend the accused by all
means fair and reasonable.
61
On the matter of proper representation by a member of the bar, we had
occasion to resolve a similar issue in the case of Delgado v. Court of
Appeals. 6 In Delgado, petitioner and two others were convicted by the
trial court of the crime of estafa thru falsification of public and/or official
documents. One accused did not appeal. Petitioner Delgado and her
remaining co-accused appealed to the Court of Appeals, which affirmed
petitioner's conviction but acquitted her co-accused. After entry of
judgment, petitioner discovered that her lawyer was not a member of the
bar and moved to set aside the entry of judgment. The Court of Appeals
denied petitioner's motion, hence, she filed a petition for certiorari with
this Court. The Court set aside the assailed judgment and remanded the
case to the trial court for a new trial, explaining that —
This is so because an accused person is entitled to be
represented by a member of the bar in a criminal case filed
against her before the Regional Trial Court. Unless she is
represented by a lawyer, there is great danger that any defense
presented in her behalf will be inadequate considering the legal
perquisites and skills needed in the court proceedings. This would
certainly be a denial of due process. 7
Indeed, the right to counsel is of such primordial importance that even if
an accused was represented by three successive counsels from the
Public Attorney's Office, the Court has ordered the remand of a rape case
when it found that accused was given mere perfunctory representation by
aforesaid counsels such that appellant was not properly and effectively
accorded the right to counsel. In the recent en banc case of People
v. Bermas, G.R. No. 120420, April 21, 1999, the Court, speaking through
Justice Vitug, admonished three (3) PAO lawyers for failing to genuinely
protect the interests of the accused and for having fallen much too short
of their responsibility as officers of the court and as members of the Bar.
Verily, we can do no less where the accused was not even duly
represented by a certified member of the Philippine Bar, no matter how
zealous his representation might have been.
The presence and participation of counsel in criminal proceedings should
never be taken lightly. 8 Even the most intelligent or educated man may
have no skill in the science of the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not because he is
guilty but because he does not know how to establish his
innocence. 9 The right of an accused to counsel is guaranteed to minimize
the imbalance in the adversarial system where the accused is pitted
against the awesome prosecutory machinery of the State. 10 Such a right
proceeds from the fundamental principle of due process which basically
means that a person must be heard before being condemned. The due
process requirement is a part of a person's basic rights; it is not a mere
formality that may be dispensed with or performed perfunctorily. 11
The right to counsel of an accused is enshrined in no less than Article III,
Sections 12 and 14 (2) of the 1987 Constitution. This constitutional
mandate is reflected in Section 1 of Rule 115 of the 1985 Rules of
Criminal Procedure which declares the right of the accused at the trial to
be present in person and by counsel at every stage of the proceedings
from the arraignment to the promulgation of judgment. In turn, Section 5
of Article VIII of the 1987 Constitution vests the power to promulgate
rules concerning the admission to the practice of law to the Supreme
Court. Section 1 of Rule 138 of the Rules of Court explicitly states who
are entitled to practice law in the Philippines, and Section 2 thereof
clearly provides for the requirements for all applicants for admission to
the bar. Jurisprudence has also held that "the right to practice law is not a
natural or constitutional right but is in the nature of a privilege or
franchise. It is limited to persons of good moral character with special
qualifications duly ascertained and certified. The right does not only
presuppose in its possessor integrity, legal standing and attainment, but
also the exercise of a special privilege, highly personal and partaking of
the nature of a public
trust." 12 Indeed, so strict is the regulation of the practice of law that
in Beltran, Jr. v. Abad, 13 a Bar candidate who has already successfully
hurdled the Bar examinations but has not yet taken his oath and signed
the roll of attorneys, and who was caught in the unauthorized practice of
law was held in contempt of court. Under Section 3 (e) of Rule 71 of the
Rules of Court, a person who undertakes the unauthorized practice of law
is liable for indirect contempt of court for assuming to be an attorney and
acting as such without authority.
WHEREFORE, the assailed judgment is SET ASIDE, and the case is
hereby REMANDED to the trial court for new trial.
With respect to the unauthorized practice of law by the person named
Gualberto C. Ompong in connection with this case, the local Chapter of
the Integrated Bar of the Philippines of Iloilo City is DIRECTED to
conduct a prompt and thorough investigation regarding this matter and to
report its recommendations to the Court within ninety (90) days from
notice of this, order. Let all concerned parties, including the Office of the
Bar Confidant, be each furnished a copy of this Decision for their
appropriate action.
No pronouncement as to costs.
62
SO ORDERED.
SECOND DIVISION
G.R. No. 92534 July 9, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ESMENIO DE LA PEÑA y BEDRIO, accused-appellant.
The Solicitor General for palintiff-appellee.
Raymundo Magat for accused-appellant
MELENCIO-HERRERA, J.:
Condemned to a life in prison1 for peddling marijuana,2 Esmenio de la
Peña reiterates his plea of innocence before this Court.
Records show that Appellant was arrested on 24 March 1988 for selling
marijuana in a "buy-bust operation" conducted by the officers of the
Narcotics Command of Region VI, Iloilo City. On 7 April 1988, Appellant
executed a counter-affidavit before a CLAO Attorney, vehemently
denying culpability (Exh. D). After preliminary investigation, the Third
Assistant City Prosecutor recommended dismissal of the case on the
ground that appellant was instigated to commit the crime by the Narcom
officers (Exh. Y). This recommendation, however, was reversed by the
City Prosecutor, who ordered another prosecutor to file the necessary
Information (Exh. I). A petition for review of said reversal was denied by
the Department of Justice, which ruled that there was sufficient evidence
to establish probable cause against Appellant and that the question of
instigation or entrapment is for the Court, and not for the Investigating
Fiscal, to determine (Exh. E).
The corresponding Information having been filed, upon arraignment,
Appellant entered a plea of not guilty.
Through its witnesses, the principal one being Sgt. Allaga, a team
member, the prosecution wrapped up its evidence thus:
On 24 March 1988, at about 2:00 o'clock P.M., Lt. Eleuterio Salde of the
Narcotics Command, Region VI, Iloilo City, received a telephone call from
a concerned citizen informing him that a certain "Esmie" later identified as
Appellant Esmenio de la Peña, was selling marijuana at Punta Baluarte,
Molo, Iloilo City. Immediately, he organized and led a team composed of
six (6) persons to conduct a "buy-bust operation" (tsn., 17 April 1989, pp.
4-5).
Arriving at the directed place at about 5:00 o'clock that same day, Sgt.
Francisco Allaga, the designated poseur-buyer and principal prosecution
witness, proceeded to a sari-sari store (ibid., p. 6) and inquired, from a
child therein, about one "Esmie" (ibid., p. 7). The child pointed to the
Appellant who was seated under a waiting shade about ten (10) meters
away (ibid.). Sgt. Allaga then approached and asked Appellant if he (the
latter) could "score" (lingo for marijuana users). Reacting, Appellant
asked "how much do you want" to which Sgt. Allaga replied "worth
P30.00" (ibid., p. 8). Asked to wait (ibid.), Sgt. Allaga then gave the
amount to Appellant, who left and returned after five (5) minutes with a
parcel wrapped in a "Camel" cigarette pack (ibid., pp. 17-18). Appellant
handed the parcel to Sgt. Allaga, who opened it, and upon seeing that it
contained marijuana arrested Appellant (ibid., pp. 10-11).
At the Narcom headquarters, Lt. Salde placed identifying marks on the
package which he kept in a padlocked steel cabinet for safekeeping
(ibid., p. 14). Lt. Salde also issued a receipt for the property seized (Exh.
C) consisting of fifteen (15) sticks of marijuana wrapped in a "Camel"
cigarette pack (Exh. C-1) which was witnessed by Sgt. Allaga (Exh. C-2),
and signed by Appellant (Exh. C-3) Tests conducted at the PC crime
laboratory yielded positive results for marijuana (Exh. B).
On 29 May 1989, after the prosecution had rested its case, Appellant,
with leave of Court, filed a "Demurrer to Evidence" on the ground of
insufficiency of evidence to produce conviction (Orig. Record, p. 53).
Ruling that the arguments advanced did not appear indubitable, the Trial
Court denied dismissal and ordered the reception of evidence for the
accused (ibid., p. 68).
Denying any and all culpability, Appellant's narration is that on the date
and time in question, as he was washing clothes at his aunt's house (tsn.,
21 August 1989, p. 2), a man, whom he later came to know as Sgt.
Francisco Allaga, arrived and inquired from him where marijuana could
be bought (ibid., p. 3). Appellant replied that he did not know. When Sgt.
Allaga insisted, saying that he needed it as medication for a patient
(ibid.). Appellant again disowned any knowledge. At that moment, one
Aris Magarse and a certain Angeles Octavio passed by and Appellant
informed them that the man needed marijuana but that he did not know
63
where the item could be bought (ibid., p. 4). Aris volunteered to look for
marijuana (ibid.). She was given money by Sgt. Allaga (ibid.). Ten
minutes later, Aris returned and handed the marijuana to Appellant which
he, in turn, gave to Sgt. Allaga (ibid., p. 5). No sooner had the Sgt. taken
hold of it when the latter identified himself as a Narcom agent and
apprehended him (ibid.).
Angeles Octavio, a neighbor and close friend of Appellant, corroborated
the latter's testimony.
After assessing the evidence before it, the Trial Court rejected Appellant's
version for being replete with inconsistencies and improbabilities, gave
more credence to the testimony of the prosecution's main witness, Sgt.
Allaga, and adjudged Appellant "to suffer the Penalty of Reclusion
Perpetua; to pay a fine of P20,000,00 without subsidiary imprisonment in
case of insolvency and to pay the costs."
Unable to accept the verdict, Appellant contends that the Trial Court
erred (1) in giving credence to the prosecution evidence rather than to his
corroborated testimony; (2) in not finding that the circumstances leading
to his apprehension constitute instigation rather than a valid entrapment;
and, overall, in not acquitting him in the face of the weak prosecution
evidence.
After a review of the oral and documentary evidence, we rule as follows:
The Court a quo cannot be faulted for giving credence to the testimony of
Sgt. Allaga. Although uncorroborated, it is positive and credible and is
sufficient to support conviction. He has convincingly established the
details of the crime. He was present when information was received at
Narcom headquarters about Appellant's illegal activities. He was the
principal actor, the designated poseur-buyer, in the "buy-bust" operation.
It was he who arrested Appellant after determining that the parcel
delivered to him contained marijuana. He witnessed the issuance of a
receipt for the seized marijuana, which Appellant had signed. He was
also with Lt. Salde when the marijuana was delivered to the PC crime
laboratory for examination. More, absent is any showing that Sgt. Allaga
was motivated by any improper motive other than to perform his
mandated duty. He is also presumed to have regularly performed his
official duty in the absence of any opposite evidence.
Contrary to Appellant's contention, the marijuana identified by Sgt. Allaga
during trial was the same item seized from Appellant. Said witness was
present when Lt. Salde made identifying marks on the parcel in question
and when it was handed to the police custodian for safekeeping. Proper
safeguards were taken to protect the identity of the exhibit. After
appropriate labelling, it was kept in a padlocked steel cabinet until it was
taken to the laboratory for examination four (4) days later.
Appellant's story pointing to another individual, one Aris Magarse, as the
supplier of the prohibited drug, is far from credible notwithstanding its
corroboration by defense witness Angeles Octavio. For, as found by the
Trial Court, Appellant had involved himself in inconsistencies. In his
Counter-Affidavit, the authenticity of which he had acknowledged, he
stated that when he was approached by a man, who turned out later to
be a Narcom poseur buyer, he was watching his friends playing mahjong
(Exh. D). His testimony in Court, however, was that he was washing
clothes in the house of his aunt when so approached. Contradicting both
statements is the testimony of defense witness, Angeles Octavio, that he
was with Aris Magarse when they passed by Appellant in a "footpath"
conversing with Sgt. Allaga. Besides, if Aris were, indeed, the marijuana
supplier she would surely have been arrested also.
Further, in his Counter-Affidavit, Appellant stated that "I left him and some
few minutes later I returned with fifteen (15) sticks of marijuana cigarettes
for him." In open Court, however, he was attributing sole fault to Aris
Magarse in an effort to shift culpability from him.
These inconsistencies cast a heavy pall of doubt on Appellant's version of
the incident. Of significance, too, is the fact that instant rapport was
1âwphi1
established between Appellant and Sgt. Allaga when the latter asked for
a "score," a term apparently used by addicts and pushers. If Appellant, in
fact, had not been engaged in such nefarious activity, the term would
have been alien to him, but it was not.
The Trial Court aptly characterized the circumstances surrounding
Appellant's apprehension as "entrapment" and not "instigation." Firstly,
Appellant's story that he had consistently denied to Sgt. Allaga having
marijuana but that because of the latter's insistence, he was induced to
look for and produce marijuana, can not be given credence, his testimony
having been found to be unworthy of belief, as already expounded. The
prosecution version, being more credible, the operation was, in fact, an
entrapment not an instigation, the underlying difference being in the origin
of the criminal intent. In entrapment, means rea originates from the mind
of the criminal. The Idea and resolve to commit the crime comes from
him. In instigation, the law officers conceive the commission of the crime
and suggest it to the accused, who adopts the idea and carries it into
64
execution (Araneta v. Court of Appeals, G.R. No. L-46638, 9 July 1986,
142 SCRA 534). Entrapment is sanctioned by the Revised Penal Code.
Instigation is tabooed.
In this case, Sgt. Allaga's inquiry addressed to Appellant was far from a
suggestion. It was a query to which Appellant immediately responded by
asking how much was needed, requesting the Sgt. to wait, and returning
after a few minutes with the "goods" in hand. Appellant needed no
prodding, no inducement, and much less, instigation. His reaction was
natural to one who was already engaged in the illicit trade of marijuana
and all that Narcom did was to catch him in the act.
Under the circumstances, Appellant does not deserve acquittal.
It needs stressing, however, that Appellant's signature on the receipt of
the property seized (Exh. C-1), a procedural step after arrest, is not a
factor in his conviction. That signature is inadmissible in evidence against
him. It was obtained in violation of Appellant's right as a person under
custodial investigation for the commission of an offense, there being
nothing in the records to show that he was then assisted by counsel.
(People v. Bagano, G.R. No. 77777, 5 February 1990, 181 SCRA 747).
Appellant's guilt has been adequately established by other evidence of
record.
WHEREFORE, the judgment appealed from is AFFIRMED, except that
the Penalty should be life imprisonment (Pres. Decree No. 1675, Section
4) and not "reclusion perpetua" as imposed by the Trial Court. Costs
against accused-appellant, Esmenio de la Peña.
SO ORDERED.
SECOND DIVISION
G.R. No. 95026 October 4, 1991
SPOUSES PEDRO and ANGELINA TELAN, petitioner,
vs. COURT OF APPEALS, ROBERTO TELAN, and SPOUSES
VICENTE and VIRGINIA TELAN, respondent.
Peter Donnely A. Barot for petitioners.
Monsanto Law Office for private respondent.
SARMIENTO, J.:
This is a petition for review of the Resolution dated December 28, 1989 of
the Court of Appeals 1 which considered the appeal of the herein
petitioner, spouses Pedro and Angelina Telan (hereinafter PEDRO and
ANGELINA), ABANDONED and DISMISSED, for their failure to file an
appeal brief within the reglementary period, pursuant to Section I(f), Rule
50 of the Rules of the Court.
The only issue involved in this petition for review on certiorari is:
Whether or not the representation of the petitioner by a fake lawyer
amounts to a deprivation of his right to counsel and hence a lack of due
process.
The circumstances under which the case arose are as follows:
The petitioner PEDRO is a retired government employee and high school
graduate who settled in 1973 on a property abutting the national highway
in Guibang, Gamu, Isabela. 2
In 1977, when the government needed the land, PEDRO was compelled
to transfer his residence to the other side of the national highway on a lot
owned by Luciano Sia where he rented 750 square meters for P50.00 a
month. 3
Because the lot was en route to the shrine of Our Lady of Guibang which
was frequented by pilgrims, PEDRO set up business enterprises such as
a vulcanizing shop and an eatery. Shortly thereafter, his cousins, the
herein private respondents Roberto Telan and Spouses Vicente and
virginia Telan (hereinafter ROBERTO, VICENTE, and VIRGINIA),
followed suit by setting up their own eatery within the same lot. 4
On March 27, 1984, PEDRO and his spouses ANGELINA received a
Notice to Vacate from the Development Bank of the Philippine (DBP).
This was followed by a letter from VIRGINIA herself, reiterating the said
demand. Apparently VICENTE and VIRGINIA had executed a Deed of
Sale with Assumption of Mortgage with Sia over the said lot shared by
PEDRO and ANGELINA. 5
65
Soon, DBP as the mortgagee of Sia's lot, foreclosed the mortgage.
On June 7, 1984, the DBP and the Spouses VICENTE and VIRGINIA
TELAN filed a suit at the Regional Trial Court of Ilagan, Isabela to evict
PEDRO TELAN's family from the lot. The case was dismissed.
Meanwhile, on September 22, 1986, ROBERTO TELAN was able to
secure a Certificate of Title in his name over the contested lot. 6
With the new Transfer Certificate of Title, ROBERTO and the spouses
VICENTE and VIRGINIA filed a complaint denominated as Accion
Publiciana against the petitioners, Spouses PEDRO and ANGELINA. 7
At this point, PEDRO and ANGELINA hired the services of Atty. Antonio
Paguiran to defend them in the suit. 8
On October 27, 1988, the lower court awarded the possession of the
property in question to ROBERTO and Souses VICENTE and VIRGINIA
TELAN.
PEDRO and ANGELINA informed Atty. Paguiran that they wanted to
appeal the case, but since Atty. Paguiran was disposed not to do so,
PEDRO and ANGELINA asked another person to sign for them. 9
In the course of their eatery business, petitioner ANGELINA TELAN
became acquainted with Ernesto Palma who represented himself to be a
"lawyer." Having no counsel to assist them in their appeal, Angelina
asked "Atty. Palma" to handle their case. he cosented and the petitioners
paid his "lawyer's fees." 10
In the meantime, on August 5, 1988, PEDRO TELAN broke his hip while
he was getting off from a passenger jeepney. On September 5, 1988,
unable to withstand the pain, he went to the Philippine General Hospital
for treatment where he was diagnosed to have a "fractured, closed,
complete, femoral neck garden type IV (R) femur." 11 On the spot, the
doctors recommended an operation.
Another operation followed on September 22, 1988. All the while, from
September 5, 1988 up to October 2, 1988, PEDRO was confined a the
PGH. He had to go back to PGH several times for check-up even after
was released from the hospital. 12
It was only by January 1990 that PEDRO managed to walk again
although still with much difficulty.
Meanwhile, on December 28, 1989, the Court of Appeals issued a
Resolution which considered the appeal interposed by petitioners as
abandoned and dismissed "for failure ... to file an appeal brief within the
reglementary period, pursuant to Section 1 (f), Rule 50 of the Rules of
Court. 13
The petitioners were not aware of the dismissal of their appeal. They only
came to know about it on May 1990, when somebody in the Isabela
Provincial Capitol at Ilagan informed PEDRO TELAN immediately verified
the facts. "Atty. Palma" could no longer be found. PEDRO in verifying the
existence of "Atty. Palma" in the Roll of Attorneys with the Bar Confidant's
Office. This was followed by the filing of Criminal Case No. 389-90 for
Estafa against "Atty. Palma." 15 By now PEDRO had realized that "Atty.
Palma" was a fake.
The Court of Appeals in its Resolution dated August 27, 1990 ruled as
follows:
xxx xxx xxx
It should be recalled that the instant appeal was dismissed only on
December 28, 1989 (p. 13 rollo). Prior thereto, appellant's counsel
received on July 25, 1989 this Court's letter-notice dated July 14, 1989
requiring him to file the appellants' brief within forty-five (45) days from
receipt thereof. Per report dated October 185, 1989 of the brief, non has
yet been filed as of said date and hence, this Court issued a Resolution
dated October 20, 1989 for appellants to show cause, within ten (10)
days, why the appeal should not be dismissed for failure to file the
appellants' brief within the reglementary period. Hence from July 25, 1989
when appellants' counsel received this Court's letter-notice to file brief
until the JRD's report on December 15, 1989 that no appellant's brief has
been filed, a period of about four (4) months and twenty-three (23) days
have elapsed, thus giving appellants enough to time to file their brief.
Unfortunately, no appellants' brief was ever filed during said period. Let it
be stressed that the rules prescribing the time within which certain acts
must be done or certain proceedings taken are absolutely indispensable
to the prevention of needless delay and the orderly and speedy discharge
of judicial business. (FJR Garment Industries v. CA, 130 SCRA 216,
218). 16
66
On January 24, 1990, the Resolution dated December 28, 1989 became
final and was entered on May 24, 1990 in the Book of Entries of
Judgment.
On September 12, 1990, the presiding judge of the lower court issue the
Writ of Demolition for the enforcement of the decision. 17
The Petition for Review on certiorari before this Court was filed on
October 18, 1990 by the spouses PEDRO and ANGELINA TELAN with
an Urgent Prayer for Temporary Restraining Order/Preliminary Injunction.
18
On October 24, 1990, after deliberating on the petition for review on
certiorari, the Court without giving due course required the respondents
to COMMENT within ten (10) days form notice thereof. At the same time,
as prayed for, effective "immediately" and "continuing until further orders
from this Court", a TEMPORARY RESTRAINING ORDER was issued
enjoining the respondents from enforcing the Order dated September 12,
1990 issued in Civil Case No. 279.
In due time, after the filing of the necessary pleadings, the petition was
given due course and the parties were ordered to submit simultaneously
their respective memoranda. The petitioners filed their memorandum
while the private respondents manifested to adopt their Comments dated
November 5, 1990. However, after the filing of the petitioners'
memorandum, the private respondents filed on June 10, 1991, a pleading
they denominated as Addendum. Apparently, changing their minds, on
July 23, 1991, the private respondents filed their memorandum.
We rule for the petitioners. We hold that they had not been accorded due
process of law because they lost their to appeal when deprived of the
right to counsel.
Article III, Section 2 of the Constitutional provides:
xxx xxx xxx
No person shall be deprived of life, or property, without due process of
law, nor shall any person be denied the equal protection of the law.
The right to counsel in civil cases exists just as forcefully as in criminal
cases, 19 specially so when as a consequence, life, liberty, or property is
subjected to restraint or in danger of loss.
In criminal cases, the right of an accused person to be assisted by a
member of the bar is immutable. Otherwise, there would be a grave
denial of due process. Thus, even if the judgment had become final and
executory, it may still be recalled, and the accused afforded the
opportunity to be heard by himself and counsel. 20
There is no reason why the rule in criminal cases has to be different from
that in civil cases. The preeminent right to due process of law applies not
only to life and liberty but also to property. There can be no fair hearing
unless a party, who is in danger of losing his house in which he and his
family live and in which he has established a modest means of livelihood,
is given the right to be heard by himself and counsel.
Even the most experienced lawyers ge tangled in the web of procedure.
To demand as much form ordinary citizens whose only compelle intrare is
their sense of right would turn the legal system into a intimidating
monstrosity where an individual may be stripped of his property rights not
because he has no right to the property but because he does not know
how to establish such right.
The right to counsel is absolute and may be invoked at all times. More so,
in the case of an on-going litigation, it is a right that must be exercised at
every step of the way, with the lawyer faithfully keeping his client
company.
No arrangement or interpretation of law could be as absurd as the
position that the right to counsel exists only in the trial courts and that
thereafter, the right ceases in the pursuit of the appeal.
This is the reason why under ordinary circumstances, a lawyer can not
simply refuse anyone the counsel that only the exercise of his office can
impart. 21
Curiously, the counsel of the private respondents, ROBERTO TELAN
and spouses VICENTE and VIRGINIA, would still insist that the
petitioners, spouses PEDRO and ANGELINA TELAN, had lost their right
to appeal because of the negligence of their counsel, referring to "Atty.
Palma."
A client is generally bound by the action of his counsel in the
management of a litigation even by the attorney's mistake or negligence
in procedural technique. 22 But how can there be negligence by the
counsel in the case at bar when the "lawyer", "Atty. Palma," turned out to
67
be fake? The Affidavit of the petitioner PEDRO TELAN, the sworn
Petition, the Certifications of the Bar Confidant's Office and the Integrated
Bar of the Philippines, and the submitted records of Criminal Case No.
389-90 more than sufficiently establish the existence of an Ernesto Palma
who misrepresented himself as a lawyer. 23
WHEREFORE, the Petitioner is GRANTED; the proceedings in CA-G.R
CV No. 20786 are hereby REINSTATED and the respondent Court of
Appeals is ordered to give DUE COURSE to the appeal and to decide the
same on the merits.
SO ORDERED.
EN BANC
[G.R. No. 103276. April 11, 1996]
DOMINGO DE GUZMAN, petitioner, vs. THE SANDIGANBAYAN
(Second Division) and the PEOPLE OF THE PHILIPPINES,
respondents.
SYLLABUS
1. REMEDIAL LAW; RULES OF PROCEDURE; MAY BE LIBERALLY
CONSTRUED TO SERVE THE END OF JUSTICE. - The power of this
Court to suspend its own rules or to except a particular case from its
operations whenever the purposes of justice require it, cannot be
questioned. In not a few instances, this Court ordered a new trial in
criminal cases on grounds not mentioned in the statute, viz: retraction of
witness, negligence or incompetency of counsel, improvident plea of
guilty, disqualification of an attorney de officio to represent the accused in
trial court, and where a judgment was rendered on a stipulation of facts
entered into by both the prosecution and the defense. Similarly, in a
considerable host of cases has this prerogative been invoked to relax
even procedural rules of the most mandatory character in terms of
compliance, such as the period to appeal. Let us not forget that the rules
of procedure should be viewed as mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result
in technicalities that tend to frustrate rather than promote substantial
justice, must always be avoided. Even the Rules of Court envision this
liberality. This power to suspend or even disregard the rules can be so
pervasive and encompassing so as to alter even that which this Court
itself has already declared to be final, as we are now compelled to do in
this case.
2. ID.; ID.; ID.; APPLICABLE IN CASE A PARTY WAS PENALIZED DUE
TO THE NEGLIGENCE OF HIS COUNSEL. - Petitioners present
dilemma is certainly not something reducible to pesos and centavos. No
less than his liberty is at stake here. And he is just about to lose it simply
because his former lawyers pursued a carelessly contrived procedural
strategy of insisting on what has already become an imprudent remedy,
as aforediscussed, which thus forbade petitioner from offering his
evidence all the while available for presentation before the
Sandiganbayan. Under the circumstances, higher interests of justice and
equity demand that petitioner be not penalized for the costly importunings
of his previous lawyers based on the same principles why this Court had,
on many occasions where it granted new trial, excused parties from the
negligence or mistakes of counsel. To cling to the general rule in this
case is only to condone rather than rectify a serious injustice to
petitioners whose only fault was to repose his faith and entrust his
innocence to his previous lawyers.
3. ID.; SUPREME COURT; NOT TRIER OF FACTS. - The receipts and
other documents constituting his evidence which he failed to present in
the Sandiganbayan are entitled to be appreciated, however, by that forum
and not this Court, for the general rule is that we are not triers of facts.
Without prejudging the result of such appreciation, petitioners
documentary evidences prima facie appear strong when reckoned with
the lone prosecution witness Angeles testimony, indicating that official
training programs were indeed actually conducted and that the
P200,000.00 cash advance he received were spent entirely for those
programs.
APPEARANCES OF COUNSEL
Zambrano, Gruba & Associates for petitioner.
The Solicitor General for respondents.
RESOLUTION
FRANCISCO, J.:
68
The Court in its June 16, 1994 En Banc Resolution[1] denied with finality
petitioners motion for reconsideration of the Courts April 12, 1994
Decision[2] affirming his conviction by the Sandiganbayan[3] of violation
of Section 3(e) of the Anti-Graft and Corrupt Practices Act[4] for his
alleged failure to account for P200,000.00 received for certain official
training programs of the Department of Agriculture. Entry of judgment
was ordered to be made in due course.[5] Six (6) years and one (1)
month as minimum, to nine (9) years and one (1) day as maximum in jail
await petitioner.
As the Sandiganbayan and the Court saw it then, petitioners guilt was
duly established by 1) lone prosecution witness Josephine Angeles[6]
testimony that no such training programs were held at the designated
places,[7] and 2) petitioners failure to present a single receipt to support
due disbursement of the P200,000.00, resulting from his former lawyers
insistence in filing a demurrer to evidence despite prior leave for that
purpose having been denied by the Sandiganbayan.
To avert his looming imprisonment and with full awareness that he has
nothing in our Rules of Court to rely on, petitioner takes a novel recourse
by filing the instant Omnibus Motion For Leave to Vacate First Motion For
Reconsideration In The Light Of The Present Developments And To
Consider Evidence Presented Herein And To Set Aside Conviction.[8]
This was filed on petitioners behalf by a new counsel, as shown by the
Entry of Appearance and Motion For Leave To Submit Attached Omnibus
Motion filed on June 27, 1994[9] after petitioners former lawyers withdrew
their appearance.[10]
In this Omnibus Motion, petitioner, for the first time, seeks to be relieved
from what he considers as the serious and costly mistake of his former
lawyers[11] in demurring to the prosecution evidence after court leave
was denied, the effect of which deprived him of presenting before the
Sandiganbayan the pieces of documentary evidence that would have
completely belied the accusation against him. Annexed to the Omnibus
Motion are photocopies of the list of expenses and receipts[12] in support
of the liquidation voucher (Exhibit E) showing due disbursement of the
P200,000.00 received for training programs actually conducted - the
original records of which are all along kept in the Records Section of the
Bureau of Plant Industry as per letter of the Bureau Director Emillano P.
Gianzon[13] and which are readily available. Petitioner now appeals to
the Courts sense ofjustice and equity that these documents be
summoned and appreciated by the Court itself or by the Sandiganbayan
after remanding the case thereto, if only to give him the final chance to
prove his innocence.
When required by the Court to comment on the Omnibus Motion,[14] the
Solicitor General, representing respondents, was granted no less than
eight (8) extensions to do so,[15] the last one with warning that no further
extension will be given. None was filed. Instead, the Solicitor General
filed a ninth (9th) motion for extension which was denied considering the
warning contained in the eighth (8th) extension.[16] The tenth (10th)
motion for extension was merely noted by the Court.[17] Thereafter, the
Court in a Resolution dated August 15, 1995 required the Solicitor
Generals Office to 1) SHOW CAUSE why it should not be disciplinarily
dealt with for its repeated failure to file comment and 2) file its comment,
both within ten (10) days from notice. In compliance therewith, the
Solicitor Generals Office filed its Comment and Explanation. The Court
accepted such Explanation, noted the Comment filed and required
petitioner to file a Reply thereto within ten (10) days from notice in a
Resolution dated October 10, 1995. A Reply was thus filed by petitioner
in due time.
The Solicitor Generals Office advances the following arguments in its
Comment:
1. Petitioners Omnibus Motion is violative of the Courts adopted policy on
second motions for reconsideration as expressed in a Resolution dated
April 7, 1988 stating that:
Where the Court has resolved to deny a motion for reconsideration and
decrees the denial to be final, no motion for leave to file second motion
for reconsideration shall be entertained.
2. Petitioner is bound by the mistake of his former lawyers, assuming that
the latter indeed committed one.
3. Even granting the petitioner is not bound by his former lawyers
mistake, the documentary evidence petitioner now attempts to present
would nonetheless not cast at all a reasonable doubt on his guilt for
violation of Section 3 of R.A. No. 3019, as amended, to warrant a
reversal of his conviction by the Sandiganbayan.
Petitioners Reply, on the other hand, contains the following counter-
arguments:
1. The Omnibus Motion is not violative of the prohibition on second
motions for reconsideration since such motion does not seek leave to file
a second motion for reconsideration but for leave to vacate the first
69
Motion For Reconsideration filed on May 6, 1994 and in its stead to admit
the Omnibus Motion containing the petitioners documentary evidence
and arguments. Thus, petitioners Motion to vacate the first motion for
reconsideration is but necessary to his defense that he should be
excused from the mistake of his former lawyers.
2. Adherence to the general rule that the client is bound by his counsels
mistake is to deprive petitioner of his liberty through a technicality.
3. The pieces of evidence petitioner is now presenting for appreciation
either by this Court or the Sandiganbayan will, contrary to the OSGs
claim, disprove his guilt of the charge levelled against him.
After carefully considering anew petitioners plight and keeping in mind
that substantial rights must ultimately reign supreme over technicalities,
this Court is swayed to reconsider.
The power of this Court to suspend its own rules or to except a particular
case from its operations whenever the purposes of justice require it,
cannot be questioned.[18] In not a few instances, this Court ordered a
new trial in criminal cases on grounds not mentioned in the statute, viz:
retraction of witness,[19] negligence or incompetency of counsel,[20]
improvident plea of guilty,[21] disqualification of an attorney de oficio to
represent the accused in trial court,[22] and where a judgment was
rendered on a stipulation of facts entered into by both the prosecution
and the defense.[23] Similarly, in a considerable host of cases has this
prerogative been invoked to relax even procedural rules of the most
mandatory character in terms of compliance, such as the period to
appeal. Take for instance the relatively recent case of PNB, et al. v. CA,
et al.[24] where the Court once again extended this liberality of allowing
an appeal filed beyond the reglementary 15-day period. It should be
noted that Mr. Justice Melo, while dissenting therein,[25] nonetheless
made this crucial observation:
The majority opinion, with due respect would suspend the rule - actually
the law - for what it says are petitioners detailed demonstration of the
merits of the appeal without, however, delving on such so-called merits.
The simple merits of ones case, lost through neglect, to my mind should
not automatically call for the suspension of applicable rules, laws, or
jurisprudence. At the very least, before this may be done transcendental
matters, surely, life, liberty, or the security of the State, should be at risk,
but obviously, not simple matters which can be reduced to pesos and
centavos. (Italics supplied)
Clearly, when transcendental matters like life, liberty or State security are
involved, suspension of the rules is likely to be welcomed more
generously.
Petitioners present dilemma is certainly not something reducible to pesos
and centavos. No less than his liberty is at stake here. And he is just
about to lose it simply because his former lawyers pursued a carelessly
contrived procedural strategy of insisting on what has already become an
imprudent remedy, as aforediscussed, which thus forbade petitioner from
offering his evidence all the while available for presentation before the
Sandiganbayan. Under the circumstances, higher interests of justice and
equity demand that petitioner be not penalized for the costly importunings
of his previous lawyers based on the same principles why this Court had,
on many occasions where it granted new trial, excused parties from the
negligence or mistakes of counsel.[26] To cling to the general rule in this
case is only to condone rather than rectify a serious injustice to
petitioners whose only fault was to repose his faith and entrust his
innocence to his previous lawyers. Consequently, the receipts and other
documents constituting his evidence which he failed to present in the
Sandiganbayan are entitled to be appreciated, however, by that forum
and not this Court, for the general rule is that we are not triers of facts.
Without prejudging the result of such appreciation, petitioners
documentary evidences prima facie appear strong when reckoned with
the lone prosecution witness Angeles testimony, indicating that official
training programs were indeed actually conducted and that the
P200,000.00 cash advance he received were spent entirely for those
programs. In this connection, the Court in US v. Dungca,[27] had
occasion to state that:
xxx, the rigor of the rule might in an exceptional case be relaxed, this
would be done only under very exceptional circumstances, and in cases
where a review of the whole record taken together with the evidence
improvidently omitted would clearly justify the conclusion that the
omission had resulted in the conviction of one innocent of the crime
charged.(Italics supplied)
Let us not forget that the rules of procedure should be viewed as mere
tools designed to facilitate the attainment of justice. Their strict and rigid
application, which would result in technicalities that tend to frustrate
rather than promote substantial justice, must always be avoided. Even
the Rules of Court envision this liberality.[28] This power to suspend or
even disregard the rules can be so pervasive and encompassing so as to
alter even that which this Court itself has already declared to be final, as
70
we are now compelled to do in this case. And this is not without additional
basis. For in Ronquillo v. Marasigan,[29] the Court held that:
The fact that the decision x x x has become final, does not preclude a
modification or an alteration thereof because even with the finality of
judgment, when its execution becomes impossible or unjust, as in the
instant case, it may be modified or altered to harmonize the same with
justice and the facts. (Italics supplied)
The Rules of Court was conceived and promulgated to set forth
guidelines in the dispensation of justice but not to bind and chain the
hand that dispenses it, for otherwise, courts will be mere slaves to or
robots of technical rules, shorn of judicial discretion. That is precisely why
courts in rendering real justice have always been, as they in fact ought to
be, conscientiously guided by the norm that when on the balance,
technicalities take a backseat against substantive rights, and not the
other way around. Truly then, technicalities, in the appropriate language
of Justice Makalintal, should give way to the realities of the situation.[30]
And the grim reality petitioner will surely face, if we do not
compassionately bend backwards and flex technicalities in this instance,
is the disgrace and misery of incarceration for a crime which he might not
have committed after all. More so, considering that petitioners record as
public servant remained unscathed until his prosecution. Indeed, while
guilt shall not escape, innocence should not suffer.[31]
In resume, this is a situation where a rigid application of rules of
procedure must bow to the overriding goal of courts of justice to render
justice where justice is due - to secure to every individual all possible
legal means to prove his innocence of a crime of which he is charged. To
borrow Justice Padilla s words in People v. CA, et al.,[32] (where
substantial justice was upheld anew in allowing therein accuseds appeal
despite the withdrawal of his notice of appeal and his subsequent escape
from confinement) that if only to truly make the courts really genuine
instruments in the administration of justice, the Court believes it
imperative, in order to assure against any possible miscarriage of justice
resulting from petitioners failure to present his crucial evidence through
no fault of his, that this case be remanded to the Sandiganbayan for
reception and appreciation of petitioners evidence.
WHEREFORE, petitioners Omnibus Motion is GRANTED and the Courts
April 12, 1994 Decision and June 16, 1994 Resolution are hereby
RECONSIDERED. Accordingly, let this case be REMANDED to the
Sandiganbayan for reception and appreciation of petitioners evidence. No
costs. SO ORDERED.
THIRD DIVISION
G.R. No. 117873 December 22, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MERCY SANTOS y ENTIENZA, accused-appellant.
PANGANIBAN, J.:
Even though the extrajudicial confession is excluded for having been
extracted in violation of the Constitution, the Court holds that appellant
may nonetheless be convicted on the basis of the remaining evidence
clearly showing her liability for kidnapping. The Court also reiterates
these rules: (1) the assessment of the credibility of witnesses and their
testimonies is best left to the discretion of the trial court; and (2) bare
denials cannot overturn the positive and straightforward testimonies of
witnesses who are not shown to have any ill motive in testifying against
the accused.
The Case
The foregoing summarizes the Court's ruling on this appeal from the
Decision,1 dated October 3, 1994, of the Regional Trial Court of Quezon
City, Branch 96, in Criminal Case No. Q-93-42733, convicting Appellant
Mercy Santos y Entienza of kidnapping.
In the information dated March 25, 1993 filed by Assistant Quezon City
Prosecutor Medardo H. Palomaria, appellant was charged as follows:2
That on or about the 8th day of March, 1993, in Quezon City,
Philippines, the abovenamed accused, conspiring, confederating
with four (4) other persons whose true names, identifies,
whereabouts and other personal circumstance have not yet been
ascertained and mutually helping one another, did, then and there
willfully, unlawfully and feloniously kidnap one CHARMAINE
MAMARIL, a female, a minor, 7 years of age, represented herein
by her mother, RAQUEL MAMARIL, from her school at
Kaligayahan Elementary School located at Rivera Compound,
Barangay Kaligayahan, Novaliches, Quezon City, and brought
her to a house at No. 8 G. Araneta Avenue, Sto. Domingo,
71
 Quezon City, on March 13, 1993, thereby illegally detaining her
for five (5) days, to her damage and prejudice.
With the assistance of Atty. Noel Ocampo of the Public Attorney's Office,
she pleaded "not guilty" to the charge during the arraignment. 3 A pre-trial
conference was conducted on June 2, 1993, but not stipulation or
agreement was arrived at.4 After trial, the court a quo rendered the
assailed Decision, the decretal portion of which reads: 5
WHEREFORE, judgment is hereby rendered finding the accused
MERCY SANTOS y ENTIENZA guilty beyond reasonable doubt
of the crime of KIDNAPPING AND SERIOUS ILLEGAL
DETENTION and sentencing her to suffer reclusion perpetua; to
indemnify the victim CHARMAINE MAMARIL, her parents and
members of her family, represented by her mother, RAQUEL
MAMARIL, in the sum of Pesos: One Hundred Thousand
(P100,000.00); and to pay the costs of suit.
Hence, this appeal.6
The Facts
Version of the Prosecution
The trial court narrated the facts of this case as presented by the
prosecution:7
Charmaine Mamaril, a kindergarten pupil, was brought to school,
the Kaligayahan Elementary School, in Novaliches, Quezon City
by her mother, Raquel Mamaril, at noontime on March 8, 1993.
Raquel left Charmaine in her classroom with her classmates but
stayed awhile, going home only after 12:30 p.m. She would be
going back for Charmaine, according to her daily routine, at 2:00
p.m. When she returned to fetch Charmaine before 2:30 p.m.,
Charmaine's teacher Ms. Grace Lucena, met and asked her if the
child had already reached home; Raquel replied that Charmaine
did not know the way home. She then looked for her child in
school until someone informed her that a woman had earlier
fetched her daughter. She immediately reported the matter to the
police authorities stationed in Novaliches at around 3:00 p.m. and
then to the National Bureau of Investigations the next day; she
also approached radio and television stations for help. She and
her family conducted their own search from then until her
daughter was finally found on March 13, 1993.
Raquel recounted how her child was recovered. According to her,
a police sergeant came to her house on March 13, 1993 and
asked for her; he told her to contact Kagawad Aida Bautista of
Sto. Domingo. When contacted, Bautista informed her that a child
named Charmaine was with her; Raquel immediately went to
Bautista with some identification papers of Charmaine, and the
child was turned over to her after showing the birth certificate.
This occurred on a Saturday.
Although Charmaine's kidnapper was not immediately caught, the
matter did not end with the return of Charmaine to her family's
bosom. Two days later, on Monday, Bautista telephoned Raquel
to tell her that the woman, a certain Mercy Santos, had returned
to her place to claim Charmaine. Raquel wasted no time notifying
NBI Agent Roel Jovenir, who, in turn and with other NBI agents,
accompanied by Raquel and her husband, proceeded to
Bautista's place and arrested Santos.
Following the arrest of Santos, the kidnapping was investigated at
the NBI office, where Raquel gave her written statement.
Bautista recalled that she was at the store on No. 719 Quezon
Avenue, Quezon City on March 9, 1993 when, at around 2:00
p.m., a woman approached and asked if she could leave her child
with her; that she told the woman to just leave the child "at the
bench" of the store; that the woman then left the child there; that
when it was already 7:00 p.m. and the woman had not yet
returned, she became worried for the child and reported the
matter to the Barangay Chairman who also reported it to Eagle
Base, the base of the Barangay officials; that on March 12, 1993,
she read from a newspaper about a child who was kidnapped in
Novaliches; that she immediately called up to the Novaliches
police sub-station to know more about the kidnapping; that when
the child's mother later phoned her on March 13, 1993, she
required the caller to bring the birth certificate of the child for
identification, that later that day, the child was returned to her
parents in the presence of Barangay Chairman Jose Valdez, the
reporter of Pinoy and a barangay tanod; that on March 15, 1993,
the woman who had left the child returned for her; that she called
up the child's parents to tell them about this; and that soon, three
72
NBI agents, including one named Roel, came with the parents of
the child and, after talking to the woman, arrested her.
The victim, Charmaine, aged 7 years, declared that Mercy Santos
took her; that she was seated and crying in school when Mercy
waved for her to draw near; that after she approached, Mercy
promised to give her a "surprise" if she went with her to a big
house where there were many children; that she went with Mercy
and was brought to a big house with many children; that she and
Mercy slept there; that Mercy later brought her to the store owned
by Ate Tina; and that Ate Tina later brought her to a house where
she saw her "daddy."
Roel Jovenir was assigned as special investigator of the Anti-
Fraud and Action Division of the NBI from April 18, 1992 to June
1, 1993, whose duties included the conduct of surveillance,
making arrests, and investigating and filing cases involving
violations of laws, like the Revised Penal Code. He testified that
on March 9, 1993, Raquel Mamaril filed her written complaint at
the NBI offices against an unidentified woman for allegedly
kidnapping her daughter on March 8, 1993; that although
Raquel's statement was taken only on March 15, 1993, the NBI
were already conducting their investigation and surveillance of
the kidnapping incident in the vicinity of Kaligayahan Elementary
School since the filing of the complaint; that on March 13, 1993,
Raquel called to tell him about the child being under the custody
of Bautista; that he and the child's parents rushed to Bautista's
place and rescued the child; that on March 15, 1993, Raquel
again called up to inform him that the suspected kidnapper had
gone back to Bautista's place to fetch the child; that in the
company of other NBI operatives, namely, Agents Arnel Azul,
SPO1 Rodrigo Mapoy, and Emeterio Armada, he proceeded to
the Bautista house and waited for the suspect to return; that they
arrested the suspect upon her return and brought her to the NBI;
that the suspect was Mercy Santos; that Santos was investigated
in the presence of counsel, Atty. Gordon Uy, after she was
informed of her rights under the Constitution; that she executed
and signed a statement, on the occasion of which
she admitted the kidnapping; that during the investigation by
question and answer, Atty. Uy would raise objections by
cautioning Santos against answering, in which case the objection
and the question objected to were not anymore typed in the
statement; and that photographs were taken of Charmaine and
the accused during the confrontation.
Version of the Defense
Appearing as the lone witness for the defense, appellant denied the
prosecution's allegations and insisted that her extrajudicial confession
was extracted in violation of her constitutional rights. The trial court
related her version of the facts, as follows: 8
The accused testified in her own behalf on November 24, 1993.
She stated that she was arrested by NBI Agent Jovenir on March
15, 1993 at Araneta Avenue, Talayan Village, Quezon City, at the
residence of Aida Bautista; that she was at Bautista's house
because her friend named Elsa had asked her to fetch
Charmaine at that place; that she did not know the surname of
Elsa, but Elsa lived on Tops Street, Talayan; that she had come
with Elsa from Novaliches; that Elsa had left Charmaine at
Bautista's place and later requested her to fetch the child; that
Elsa was a nightclub dancer whom she had known for two years;
that she was not the woman whom Bautista said had left
Charmaine at the store; that she was not able to confer with any
Atty. Uy and she might have merely signed the affidavit; that she
did not know Atty. Uy; and that she signed Exhibit C only because
she was threatened by NBI Agent Rodrigo Mapoy and was
maltreated.
Ruling of the Trial Court
The trial court convicted appellant of kidnapping and serious illegal
detention. It observed that appellant's identification by the victim and by
Witness Bautista was positive and unassailable. Their testimonies were
straightforward and unhesitating, especially in their identification of the
appellant as the kidnapper. The evidence on appellant's direct and
personal participation in the crime was "absolutely credible, trustworthy
and sincere."
The trial court rejected appellant's explanation that she was merely
fetching the victim upon her friend's request. It was incredible that her
friend would refuse to testify on her behalf, if this allegation were true,
considering the gravity of the charge leveled against her.
Besides, the trial court considered her extrajudicial confession more than
sufficient evidence of her guilt. Such confession was declared as
competent evidence against her, despite her denials of having given it
and her claims of duress and intimidation. Its voluntariness was
73
sufficiently proven, as it was given after she was apprised of her
constitutional rights with the assistance of her counsel of choice, a certain
Atty. Gordon Uy. Her subsequent retraction during the trial was rejected
as a flimsy machination to extricate herself from criminal liability.
The Issues
The appellant assigns the following errors against the trial court. 9
I (1) Any person under investigation for the
The trial court gravely erred in giving full weight and credence to
the incredible, unworthy and unreliable testimonies of the
prosecution witnesses and in disregarding the theory of the
defense.
II
The trial court gravely erred in not giving credence to the defense
of denial raised by the accused Mercy Santos.
III
The trial court gravely erred in admitting in evidence the extra-
judicial confession of the accused despite the fact that it was
elicited in violation of the exclusionary rule on evidence.
IV
The trial court gravely erred in convicting the accused-appellant
despite failure of the prosecution to prove his (sic) guilt beyond
reasonable doubt.
For clarity and convenience, the Court will tackle the issues in the
following order: (1) admissibility of the extrajudicial confession, (2)
credibility of witnesses and appellant's denial, and (3) sufficiency of
evidence.
The Court's Ruling
The Court rejects the appeal. Although the extrajudicial confession is
inadmissible in evidence, there are, apart from said confession, other
credible and competent pieces of evidence to establish her guilt beyond
reasonable doubt.
First Issue: Extrajudicial Confession Inadmissible
A confession is not admissible in evidence unless the prosecution
satisfactorily shows that it was obtained within the limits imposed by the
1987 Constitution. Section 12, Article III thereof, provides:
commission of an offense shall have the right to
be informed of his right to remain silent and to
have competent and independent counsel
preferably of his own choice. If the person cannot
afford the services of counsel, he must be
provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in
violation of this or section 17 hereof shall be
inadmissible in evidence against him.
If the extrajudicial confession satisfies these constitutional standards, it is
subsequently tested for voluntariness, 10i.e., if it was given freely —
without coercion, intimidation, inducement, or false promises; and
credibility,11 i.e., if it was consistent with the normal experience of
mankind.
A confession that meets all the foregoing requisites constitutes evidence
of a high order because no person of normal mind will knowingly and
deliberately confess to be the perpetrator of a crime unless prompted by
truth and conscience.12 Otherwise, it is disregarded in accordance with
the cold objectivity of the exclusionary rule. Consequently, the burden of
evidence to show that it was obtained through undue pressure, threat or
intimidation shifts to the
accused.13
As proof of alleged compliance with the constitutional standards, the
extrajudicial confession contains the following statements:
74
 01. TANONG : Bb. MERCY SANTOS Y ENTIENZA, ikaw ay
iimbestigahan namin sa pagkakasangkot mo sa kasong
"kidnapping", bago kami magpatuloy sa pagsisiyasat na ito ay
nais naming ipaalam sa iyo and iyong mga karapatan sa ilalim ng
ating Saligang Batas. Ikaw ay may karapatang manahimik at di
magpahayag ng anumang salaysay kung nais mo, naiintindihan
mo ba ito?
SAGOT: Opo sir.
02. T: Ikaw ay mayroon ding karapatan na kumuha at tulungan ng
isang abogado na pili mo upang umasiste sa iyo sapagsisiyasat
na ito. Kung hindi mo naman kayang bumayad ng serbisyo ng
isang abogado ay ikaw ay bibigyan namin ng isa na siyang
tutulong sa iyo sa pagsisiyasat na ito ng walang bayad,
naiintindihan mo ba ito?
S: Opo sir.
3. T: Ngayon, ikaw ba ay mayroong abogado na sarili mong pili
para tumulong sa iyo sa pagsisiyasat na ito?
S: Opo sir, Nandito ang aking abogado si ATTY. GORDON UY
na siyang tutulong sa akin sa pagsisiyasat na ito. 14
These questions and the corresponding responses thereto are insufficient
proof of compliance with the constitutional requirements. They are terse
and perfunctory statements which do not evince a clear and sufficient
effort to inform and explain to appellant her constitutional rights, much
less satisfy the constitutional prerequisites. The right of a person under
custodial investigation to be informed of his rights entails an effective
communication that results in an understanding thereof. Any effort falling
short of this standard is a denial of this right. 15
Furthermore, in People vs. Deniega,16 the Court disbelieved the
typewritten statements in the extrajudicial confessions to the effect that
the accused was properly apprised of his constitutional rights, in view of
the glaring inconsistencies in said documents and the token participation
therein by the lawyers assigned to the accused. The Court declared: 17
The desired role of counsel in the process of custodial
investigation is rendered meaningless if the lawyer merely gives
perfunctory advice as opposed to a meaningful advocacy of the
rights of the person undergoing questioning. If the advice given is
so cursory as to be useless, voluntariness is impaired. If the
lawyer's role is reduced to being that of a mere witness to the
signing of a pre-prepared document albeit indicating therein
compliance with the accused's constitutional rights, the
constitutional standard guaranteed by Article III, Section 12(1) is
not met. The process above-described fulfills the prophylactic
purpose of the constitutional provision by avoiding "the pernicious
practice of extorting false or coerced admissions or confessions
from the lips of the person undergoing interrogation for the
commission of the offense" and ensuring that the accused's
waiver if his right to self incrimination during the investigation is
an informed one in all aspects.
Thus, the trial court erred in admitting appellant's extrajudicial confession
without showing that Atty. Gordon Uy was indeed the "competent and
independent counsel of appellant's own choosing." The Court notes
appellant's insistent and persistent disavowals of knowing said Atty. Uy,
much less of retaining him as her counsel of choice. The prosecution, for
unexplained reasons, failed to present Uy as a witness to show his role in
the taking of the alleged confession.
In view of such default, the Court disagrees with this holding of the trial
court:
The circumstances of the investigation, to begin with determine
the compliance with the "right to counsel" provision. Where, as in
the instant case, the accused is shown to have accepted the
representation and assistance of the counsel during the
investigation, he may not easily subsequently retract acceptance
and disavow counsel during the trial on the flimsy excuse that
counsel was not an acquaintance. . .
xxx xxx xxx
The accused need not expressly assent to the representation and
assistance of her counsel. Her acquiescence sufficed. . .
The accused should further be instructed that her failure to object
to the representation and assistance of Atty. Uy as her counsel
has precluded her from complaining. She could have easily
objected at any time but apparently did not. For her to assert now
that she could not have done so or that she was not enabled to
do so is not credible, it being shown satisfactorily in the records
that she was far from prevented during the investigation from
doing so. . . .18 (Emphases found in the original.)
75
No presumption of constitutionality may be accorded any extrajudicial
confession until the prosecution convincingly establishes the regularity of
its taking and its compliance with the Constitution. This is the price the
prosecution has to pay before it can be allowed to use such formidable
evidence against the accused.
Therefore, the trial court had no basis for ruling that "Atty. Uy rendered
independent and competent assistance to her as her counsel of choice
during the investigation." The extrajudicial confession must be struck
down as inadmissible in evidence for failure of the prosecution to
establish observance of appellant's constitutional rights during custodial
investigation. Specifically, the prosecution failed to show that appellant
was, at that time, assisted by competent and independent counsel
preferably of her own choice.
Third Issue: Sufficient Evidence for Conviction
The prosecution has established the elements of kidnapping under Article
267, paragraph 4 of the Revised Penal Code, namely: (1) the offender is
a private individual; (2) he kidnaps or detains another, or in any other
manner deprives the latter of his or her liberty; (3) the act of detention or
kidnapping is illegal; and (4) the person kidnapped or detained is a minor,
female or a public officer.21
The prosecution proved that appellant was not a public officer; that she
took the victim from the Kaligayahan Elementary School in Novaliches
without the knowledge and consent, and against the wishes of her
parents; and that the victim was a minor, having been only seven years
old at the time.

Second Issue: Credibility of Witnesses vs. Denial The element of deprivation of liberty and the identity of her abductor are
clearly established in the victim's testimony: 22
The Court is not persuaded by appellant's posturing that Witness
Bautista's testimony is unworthy of credence for being "of doubtful Q On March 8, 1993, can you recall if you went to school?
veracity." The defense insists that Bautista and appellant met for the first A Yes, sir.
time at the former's house and harps on the fact that appellant, who was Q Can you remember if there is anything that happened to you on
not even informed of Bautista's address, went to said house only upon that day?
the request of appellant's friend, Elsa. Further, the defense brands as A Yes, sir.
illogical appellant's act of leaving her victim at the hands of a third person, Q What was that which happened to you?
considering that the prosecution depicted her in the extrajudicial A She took me, sir.
confession as a seasoned kidnapper. Returning to Bautista's house to Q When you said she took me, whom are you referring to?
regain custody of the victim, which was practically surrendering herself to A Mercy Santos, sir.
the authorities, would have been the last thing a seasoned kidnapper Q If Mercy Santos is in court, can you point her out?
would do, appellant contends. A Yes, sir. (Witness pointing to a person seated on the second
bench)
These arguments do not persuade us. They are mere denials which xxx xxx xxx
become sterile in comparison with the firm and clear declarations of Pros. Bringas:
Bautista, who identified appellant as the person who left Charmaine with Now, Charmaine you stated awhile ago that Mercy Santos took
her and who fetched the child days after. The trial court correctly held that you, how was she able to get you, when Mercy Santos took you,
appellant's uncorroborated denial was a negative assertion that was how did she do it?
inferior to the positive declarations of the prosecution witnesses. Besides, A I was left in a store to a certain Mrs. . .
there appears to be no ill motive for Bautista and the victim to accuse xxx xxx xxx
appellant of such a grave crime, if the same were not true. Thus, the trial Q From what place did Mercy get you?
court properly lent credence to their testimony. 19 All in all, this Court has A At the school sir.
not been given sufficient reason to deviate from the time-honored rule Q How was she able to get you? I am withdrawing the question.
that the assessment of the credibility of witnesses and their testimonies is Do you know Mercy previous to that day?
best left to the discretion of the trial judge. 20 A Yes, sir.
Q How did you know her?

76
 A When I met her at a big house I cried and a man whipped me
with a piece of rope.
Q Before Mercy took you from your school, where was she?
A This Mercy was standing while I was seated and crying.
Q Did Mercy call you?
A Yes, sir.
Q Why did she call you?
A She waved me over to go to her.
Q Did you go to her?
A Yes, sir she told me there is a surprise for me.
Q Do you know the reason why there was a surprise for you?
A Yes, sir.
Q What was the reason?
A She told me that she will bring me to a big house were [sic]
there were many children.
xxx xxx xxx
Q After you went there, where else did you go, if any?
A When I was brought to the big house, Mercy and I are and then
I slept then after sleeping, I was brought to the store. [sic].
The fact that the victim initially agreed to go with appellant does not
remove the element of deprivation of liberty because the victim went with
her on false inducement, without which the victim would not have done
so. Besides, the minor was distraught because her mother was late in
fetching her from school, and she did not know the way to her house. It
must have been a comfort to her that a grown-up who could bring her
home asked about her situation. As the trial court said: 23
The crime committed is of the most serious nature, involving a
defenseless minor of seven years of age whom the
accused enticed with her promise of a gift. The accused thereby
deprived the child of her personal liberty and endangered her life.
In addition, the child was forcibly taken away from the midst of
her family, causing to them, particularly her parents, much pain,
anxiety, anger, and wounded feelings in them. That the minor
was subsequently saved from the clutches of the accused and of
her cohorts did not diminish a bit the criminal and civil
responsibility of the accused, for, even if the deliverance of the
victim was due to the overconfidence of the accused, her degree
of criminality still evinced her high malevolence and abject
disregard of the rights and safety of the
child . . .
The victim was actually "locked up" inside what she referred to as the "big
house." Although her detention there lasted only one night, the trial court
held that the victim was actually deprived of her liberty for five days,
including the four-day period when she was already in the custody of
Bautista. It must be stressed that appellant was charged and convicted
under Article 267, paragraph 4 of the Revised Penal Code. Under this
provision, it is not the duration of deprivation of liberty which is important,
but the fact that the victim, a minor, was locked up. Furthermore, it bears
emphasis that appellant did not merely take Charmaine to the "big house"
against her will; she in fact detained Charmaine and deprived her of her
liberty. The Spanish version24 of Article 267 of the Revised Penal Code
uses the terms "lockup" (encerrar) rather than "kidnap" (secuestrar or
raptar). "Lockup" is included in the broader term "detention," which refers
not only to the placing of a person in an enclosure which he cannot leave,
but also to any other deprivation of liberty. 25 To repeat, the prosecution
clearly established "lockup" in this case.
Damages
The trial court awarded one hundred thousand pesos as moral damages
in favor of the victim and her parents. This is contrary to the Court's
consistent holding that the grant of moral damages requires factual
basis.26 The records are bereft of any evidence that the victim and her
parents ever claimed moral damages, or that they were entitled to such
an award.
WHEREFORE, the assailed Decision is hereby AFFIRMED but the award
of moral damages is DELETED for want of evidence.
SO ORDERED.
77
 THIRD DIVISION
G.R. No. 114385 January 29, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EFREN JEREZ, accused-appellant.
ROMERO, J.:
Appellant Efren Jerez, along with Joselito Quijan, Zaldy Victa and Efren
Bola (at large), were charged with the crime of robbery with double
homicide in Criminal Case No. 6755 before the Regional Trial Court 1 of
Daet, Camarines Norte, Branch 38, under an information 2 dated October
15, which reads as follows:
That on or about 1:00 o'clock in the afternoon of May 23, 1990
within the Basit Compound at barangay Sta. Rosa, municipality of
Jose Panganiban, province of Camarines Norte, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
(accused) armed with revolvers and bladed weapons conspiring,
confederating together and mutually helping with one another, did
then and there wilfully, unlawfully and feloniously, with intent of
gain and by means of violence take from REYNALDO OCHOA
and JOSELITO BALBASTRO the following personal properties, to
wit: cash money amounting to P45,000.00, two (2) gold plated
Seiko 5 wristwatch(es), one (1) golden Horseshoe type ring and
one (1) gold plated Ray-ban with the total value of P52,000.00,
Philippine Currency, belonging to said Reynaldo Ochoa and
Joselito Balbastro; that on the occasion of said robbery and for
the purpose of enabling the said accused to take, steal and carry
away the aforesaid articles, the herein accused in pursuance of
their conspiracy, did then and there wilfully, unlawfully and
feloniously, with deliberate intent to kill, with treachery, evident
premeditation and taking advantage of their superior number and
strength, assault, attack and stab said Reynaldo Ochoa and
Joselito Balbastro, thereby inflicting upon them multiple mortal
wounds on the different parts of their bodies, and as a result
thereof, the said Reynaldo Ochoa and Joselito Balbastro died
instantly, to the damage and prejudice of the heirs of the victims.
CONTRARY TO LAW.
Upon arraignment, the accused entered a plea of not guilty.
A concise narration of the factual circumstances that led to appellant's
conviction follows:
On May 23, 1990, while waiting for passengers near Josie's Restaurant in
the Municipality of Labo, Camarines Norte, tricycle driver Gil Villafranca
was approached by a person, later identified as appellant, informing him
that he was looking for a carabao buyer. 3 Subsequently, Villafranca
accompanied the latter to the house of one Reynaldo Ochoa. When
apprised of purpose of the visit, Julian, the son of Reynaldo, sought his
father near Kathleen Pawnshop and advised him about the four carabaos
allegedly for sale at Barangay Teddy, Jose Panganiban, Camarines
Norte.4
Appellant, together with Reynaldo and another carabao buyer, Joselito
Balbastro, boarded a motorcycle and proceeded to Barangay Teddy to
check the condition of the carabaos. It was the last time, however, that
the two were seen alive. When the latter failed to return the following day,
a search, led by Julian, was conducted. In the course of their inquiry, it
was learned that the motorcycle owned by Reynaldo was in the custody
of the barangay captain of Teddy, Jose Panganiban who told them that it
was recovered from the Basit Compound. Forthwith, they proceeded to
the said compound and found Reynaldo and Joselito lifeless, having
sustained several mortally-inflicted stab wounds in different parts of their
bodies. The victims were divested of their watches, rayban glasses, and
a sum of money amounting to P37,000.00.
Police Major Roberto Rosales of the Camarines Norte Integrated National
Police testified that upon appellant's arrest, the latter was apprised of his
constitutional rights. On June 25, 1990, in the presence of Atty. August
Schneider, an investigation conducted by the police ensued and
statements therein were reduced to writing, signed and sworn to before
Jose Panganiban Municipal Mayor Arnie Arenal, who likewise inquired
whether or not appellant understood the consequences of his
confession.5
Appellant, on the other hand, proferred alibi as his defense and that the
extra-judicial confession was allegedly obtained through the use of
physical violence, coercion and intimidation.
78
He contended that on the day the incident in question occurred, he was
with his common law wife, Mercedes Sarical, at the house of a certain
Felix Rellolosa from 9:00 o'clock a.m. to 4:00 o'clock p.m. drinking liquor
with some friends.6 He further tried to buttress his alibi by declaring that
no one saw with as a participant in the slaying nor was any property of
the victims recovered from him.
Appellant assails the lower court for giving weight and credence to the
extra-judicial statement, stating that at the time of the taking thereof, he
was assisted by an ineffectual counsel who could not safeguard his
constitutional rights and interests.
We affirm appellant's conviction.

In a decision dated April 19, 1993, the trial court convicted appellant, the
dispositive portion of which reads:
WHEREFORE, premises considered and finding accused EFREN JEREZ
guilty beyond reasonable doubt of the crime of robbery with double
homicide, he is hereby sentenced to suffer the penalty of reclusion
perpetua and to indemnify and/or reimburse the heirs of the following:
It is well-settled in this jurisdiction that for a confession to be admissible, it
"must satisfy all four fundamental requirements: (1) the confession must
be voluntary; (2) the confession must be made with the assistance of
competent and independent counsel; (3) the confession must be express;
and (4) the confession must be in writing." 8 Appellant argued that the first
and second requirements were not complied with. The records of the
case, however, reveal otherwise.

To the Heirs of Reynaldo Ochoa It must be borne in mind that when appellant executed the extrajudicial
confession, it was done in the presence of his counsel, Atty. Schneider,
1. P 50,000.00 damage for death and sworn to before Mayor Arenal. If indeed his confession were
2. 100,000.00 loss of earning capacity obtained as a result of coercion and intimidation by policemen at the
(estimated income x life span) police station, he could have informed the Mayor of the maltreatment he
3. 25,000.00 articles/money lost suffered. Having failed to convince the authorities, the extra-judicial
(P20,000.00, watch, others) confession voluntarily made by Jerez is admissible in evidence. "The
4. 50,000.00 burial and other expenses presumption, therefore, of spontaneity and voluntariness stands unless
————— the defense proves otherwise."9
P225,000.00
Appellant argued that the trial court erred when it denied his right to have
To the Heirs of Joselito Balbastro an independent counsel of his own choice. The records show that at the
time the extrajudicial confession was executed, appellant disclosed to the
1. P 50,000.00 damage for death police officers that his counsel of choice was Atty. Freddie Venida but
2. 100,000.00 loss of earning capacity that the latter would not be available as he is due to depart for Manila on
(estimated income x life span) the same day. Subsequently, Major Rosales suggested that Atty.
3. 27,000.00 articles/money lost Schneider, supposedly the only lawyer available in Jose Panganiban,
(P17,000.00, watch, Ray-Ban) appear as the counsel of appellant during investigation and the latter
4. 50,000.00 burial and other expenses answered in the affirmative, as shown from the excerpts of his
————— extrajudicial confession, thus:
P227,000.00
PASUBALI: — Ginoong Jerez, ikaw ay kukunan namin ng
But for insufficiency of evidence, Joselito Quijan and Zaldy Victa are malayang salaysay tungkol sa isang usapin na aming sinisiyasat.
hereby acquitted. Subalit, bago ang lahat, nais naming malaman mo na ikaw ay
may mga karapatan susog sa ating Saligang Batas. Ito ay ang
mga sumusunod:
SO ORDERED. 7
Una: Ikaw ay may karapatang tumangging magbigay ng salaysay
o kaya ay magbigay ng salaysay, sapagkat ang anumang

79
 sasabihin mo sa pagtatanong na ito ay maaaring gamitin laban sa
iyo sa harap ng hukuman. Nauunawaan mo ito?
Sagot: Opo.
Ikalawa: Ikaw ay may karapatang ding kumuha ng isang
manananggol na sarili mong pili upang siyang maging gabay mo
sa pagtatanong na ito. Nauunawaan mo ito?
Sagot: Opo
Nais mo bang maging gabay mong manananggol ang ating
kaharap na manananggol na si Atty. Augusto B. Schneider?
Sagot: Opo.
Pangatlo: Nais din naming malaman mo at ng lahat na ikaw ay
hindi namin pinangangakuan, sinasaktan o tinatakot upang
magbigay ng iyong sariling salaysay, kundi, ito ay pawang
katotohanang kusang loob mong sasabihin at isasalaysay.
Nauunawaan mo ito?
Sagot: Opo.
Tanong: Kung nauunawaan mong lahat itong mga pasubaling ito,
ikaw ba ay nakahanda ng magbigay ng iyong sariling malayang
salaysay?
Sagot: Opo.10
While the initial choice of the lawyer in cases where a person under
custodial investigation cannot afford the services of a lawyer or (where
the preferred lawyer is available as in the case at bar) is naturally lodged
in the police investigators, the accused has the final choice as he may
reject the counsel chosen for him and ask for another one. A lawyer
provided by the investigators is deemed engaged by the accused where
he never raised any objection against the former's appointment during the
course of the investigation and the accused thereafter subscribes to the
veracity of his statement before the swearing officer. 11 Thus, "once the
prosecution has shown that there was compliance with the constitutional
requirement on pre-interrogation advisories, a confession is presumed to
be voluntary and the declarant bears the burden of proving that his
confession is involuntary and untrue. The burden is on the accused to
destroy this presumption. A confession is admissible until the accused
successfully proves that it was given as a result of violence, intimidation,
threat or promise of reward or leniency. 12
Although appellant thereafter claimed that the confession he gave was
made under duress, there is, however, no evidence on record to support
the same. In People v. Villanueva, this Court declared that "voluntariness
of a confession may be inferred from its language such that if upon its
face the confession exhibits no sign of suspicious circumstances tending
to cast doubt upon its integrity, it being replete with details, which could
possibly be supplied only by the accused, reflecting spontaneity and
coherence which psychologically cannot be associated with a mind to
which violence and torture have been applied, it may be considered
voluntary." 13 A scrutiny of the sworn statement discloses in detail
relevant facts surrounding the commission of the offense charged
which the accused himself could only have known.
The Court, therefore, finds that appellant's constitutional right to
counsel was not breached when he agreed to be represented by
Atty. Schneider.
Appellant likewise argued that the trial court should have admitted
his defense of alibi "considering that he was not properly identified
and physical evidence like properties, money, fingerprints were not
discovered by the arresting officers." 14
This contention is simply unavailing in the case at bar. It is settled
in this jurisdiction that "for alibi to prosper, it is not enough that the
accused prove that he was somewhere else when the crime was
committed. He must demonstrate that he could not have been
physically present at the place of the crime or in its immediate
vicinity at the time of its commission." 15 Appellant testified that on
the day in question, he was engaged in a drinking spree with his
friends at the house of Felix Rellolosa at Talobatib, Labo, Camarines
Norte and he went home at 4:00 o'clock p.m. staying thereat for the
rest of the night. Unfortunately, this version of the appellant was
contradicted by prosecution witnesses, Julian Ochoa and Gil
Villafranca, who positively identified him in court as the person
scouting for carabao buyers in the Municipality of Labo, Camarines
Norte at around 9:00 o'clock a.m. on May 23, 1990. Needless to say,
where an accused's alibi is established only by himself, his relatives
and friends, his denial of culpability should be accorded the
strictest scrutiny. They are necessarily suspect and cannot prevail
over the testimonies of the more credible witnesses for the
prosecution. 16
The Court is, therefore, convinced that appellant's culpability of the
offense charged was proved beyond reasonable doubt.
The computation, however, of the damages awarded by the trial
court for loss of earning capacity fixing the same at P100,000.00 for
each victim is erroneous.
80
"The formula consistently used by the Supreme Court in
determining life expectancy is (2/3 x [80 - age of the victim at the
time of death])." 17 Thus, the award for loss of earning capacity for
each victim shall be as follows:
Joselito Balbastro
P36,000.00 — gross annual income (P3,000.00 x 12 mos.)
Multiply: 30 — life expectancy (2/3 x 45 [80 - 35 {age at time
of death}])
P1,080,000.00 — total loss of earning capacity
Reynaldo Ochoa
P36,000.00 — gross annual income (P3,000.00 x 12 mos.)
Multiply: 21 — life expectancy (2/3 x 31 [80 - 49 {age at time
of death}])
P756,000.00 — total loss of earning capacity
WHEREFORE, in view of the foregoing, the appeal is DISMISSED
and the decision of the trial court finding accused-appellant EFREN
JEREZ guilty beyond reasonable doubt of the crime charged is
hereby AFFIRMED with the MODIFICATION that appellant shall
indemnify Joselito Balbastro and Reynaldo Ochoa in the amount of
P1,080,000.00 and P756,000.00, respectively, for losses of their
respective earning capacity. Costs against appellant.
SO ORDERED.
SECOND DIVISION
G.R. No. L-67422-24 October 31, 1984
FERNANDO VALDEZ alias WILSON VALDEZ, petitioner,
vs.
HONORABLE JUDGE GREGORIO U. AQUILIZAN, Presiding Judge of
the Regional Trial Court, 12th Judicial Region, Branch XVI, Kabacan,
North Cotabato, respondents.
ABAD SANTOS, J.: ñé+.£ªwph!1
This is a petition for certiorari which was posted on March 22, 1984, in
Cotabato City by speed airmail but was received only on April 26, 1984.
The petitioner is accused of rape in three cases — Criminal Case Nos.
13, 14 and 15 — filed in the court presided by the respondent judge. The
private complainant is the same in all the three cases but the rapes were
alleged to have been committed on different dates, namely: February 10,
1982, March 17, 1982 and April 10, 1982.
The petition seeks to annul the proceedings which were conducted by the
respondent judge and to disqualify him from the case. Because the
verified petition imputed serious irregularities to the respondent judge,
this Court issued a temporary restraining order on May 21, 1984,
restraining him from further proceeding with Criminal Case Nos. 13, 14
and 15.
In the comment which the respondent judge was required to submit, he
said that he had already decided the three cases. (Petitioner Wilson
Valdez was convicted of rape in each of the three cases and was
sentenced to three reclusion perpetua plus indemnity.) The decision is
dated April 2, 1984, but the petitioner claims that it was promulgated on
May 3, 1984, without the presence of his counsel and even of the Fiscal;
that no notice was issued in respect of the promulgation; and that no
copy of the decision was given to the defense counsel of record.
The case was set for hearing on August 6, 1984, and thereafter the Court
issued a resolution which reads: têñ.£îhqwâ£
At the hearing this morning the following appeared: Attys.
Jose V. Juan and Antonio T. Nicolas of the Special
Appealed Cases Division, Citizens' Legal Assistance
Office, Ministry of Justice, Padre Faura, Manila, for the
petitioner; respondent Judge Gregorio U. Aquilizan on his
own behalf; and North Cotabato Provincial Fiscal Aquiles
Narajos who brought the record of Criminal Case Nos. 13,
14 and 15 in the sala of the respondent judge.
Counsels for the petitioner mentioned several
irregularities said to have been committed by the
respondent judge in the handling of the case above-
mentioned. Resort to the record proved to be fruitless
because it was grossly deficient.
81
 Counsels for the petitioner are hereby given ten (10) days
from notice hereof to submit a memorandum specifying
the irregularities said to have been committed by the
respondent judge with supporting evidence. A copy of the
memorandum shall be furnished to the respondent judge
who is required to answer the same point by point within
ten (10) days from receipt. (Rollo, p. 127.)
The memoranda are now before this Court and the immediate reaction is
that the petition is highly impressed with merit.
In the hearing of the three criminal cases on May 26, 1983, the private
complainant was to be cross- examined inasmuch as her direct
examination had been finished at the previous hearing on April 7, 1983.
On May 26, the private prosecutor, Atty. Norberto Ela, was absent.
Thereafter, the respondent judge stated: "It appears in the records that
the complaining witness is still under cross. It is the Honorable Judge
who is examining her ... (Addressing the witness) During the last hearing
of this case, the Honorable Court reserved its right to cross examine you
on your testimony." And the respondent judge examined the witness but
the examination is better described as direct rather than cross. Witness
the following:têñ.£îhqwâ£
COURT: ... After going over the records of the cases and the supposed
exhibits, you mentioned about a pair of scissors used to intimidate you,
coerced and forced by the accused, by pressing the same at your left
side?
A. Yes, your Honor.
COURT: Proceed Fiscal.
FISCAL FULVADORA:
Q You mentioned about a pair of scissors used by the accused. Showing
to you this scissors, what relation is this scissors which was used by the
accused in threatening you on February 10, 1982?
A Yes, sir, this is the one being used by him.
COURT:
Q Is this the very scissors that you saw when he pressed it?
A Yes, your Honor.
Q When was this used by the accused Wilson Valdez?
A On February 10, 1982, your Honor.
FISCAL FULVADORA:
May we request that this scissors Identified by the witness be marked as
Exh. "F", your Honor.
COURT:
têñ.£îhqwâ£
Mark it.
Q Please demonstrate to the Court how this Exh. "F" was used by the
accused in intimidating you?
A (Witness demonstrating to the Court)
The witness demonstrating to the supposed victim the pressing of the
pointed scissors at the left side abdomen.
Q Did he also use that during the accord rape he committed
A Yes your Honor.
Q About the third time, he use also?
A Yes your Honor. (TSN, May 26, 1983.)
To be sure a trial judge has the right, nay even the duty, to address
questions to witnesses. But the questions should be clarificatory; they
should not build the case for any of the adversaries.
On June 23, 1983, a hearing was scheduled. The transcript for that day
shows that Fiscal Camilo Fulvadora appeared for the prosecution but
private prosecutor Ela, was absent. Also absent was Atty. Jorge Zerrudo,
counsel for the accused. The transcript does not show whether or not the
accused was brought to court. Notwithstanding the absence of counsel
for the accused and probably the accused himself, the respondent judge
82
continued his "cross-examination" of the private complainant. The
respondent judge explained his behaviour thus: têñ.£îhqwâ£
WHEREFORE, premises considered, in view of the absence of
Atty. Zerrudo who in spite of due notice in open court, during the
last hearing of this case and without justifiable reason failed to
appear, however, for the sake of justice in order not to prejudice
the right of the accused as the complaining witness was on cross-
examination, stated the witness is being cross examined by the
court in order to get an illustration of certain facts needed by all
defense here or the prosecution of the accused Wilson Valdez
alias Willy. (TSN, June 23, 1983.)
In his memorandum the respondent judge claims that he "did not proceed
with the trial but merely sought clarifications on vital aspects taken up in
the hearing of April 7, 1983."
The explanation of the respondent judge is belied by the transcript which
shows that he asked the private complainant searching questions and
this is reflected on pages 4 to 12 of the transcript.
The statement of the respondent judge that he wanted to protect the right
of the accused to a speedy trial is not appreciated. He "protected" the
rights of the accused by holding a trial in the absence of the latter's
counsel. If an accused has a "protector" like the respondent judge, there
is no need for a fiscal or a private prosecutor. It may not be amiss to state
in this connection that the accused did not complain of delay in the trial of
his case probably because he was not there. At any rate if the
respondent judge had wanted to expedite the trial he should have
appointed a temporary counsel for the accused.
The hearing on the three cases was resumed on August 18, 1983. In the
meantime, Atty. Zerrudo was replaced by Atty. Julian Ruiz as counsel for
the accused because he wanted an Ilocano lawyer to represent him for
better communication. On that day. the private complainant was still on
cross-examination. Without any request from the parties, the respondent
judge decided to hold the hearing in his chamber "due to delicadeza."
Present in the chamber were counsel for the accused, the fiscal and the
stenographer only; the accused was not allowed to go inside. têñ.£îhqwâ£
The respondent judge claims, however, "that the accused together with
his guard were at the door of a make-shift room, so-called judge's
chamber." This might well have been the case but the accused was
entitled as of right to be inside the room because it was his liberty and
honor which were at stake. On August 31, 1983, the respondent judge
announced, "We will hear this in chamber." And then the following took
place:têñ.£îhqwâ£
ATTY. RUIZ:
Now, last time this case was presented and was scheduled for hearing
inside the chamber. Counsel for the accused requested that the accused
be given chance to confront the complaining witness but this, your honor
was denied so at this instance it is reiterated that the accused be given
again a chance to be present during the investigation (sic).
COURT: têñ.£îhqwâ£
Fiscal.
FISCAL CAMILO FULVADORA: têñ.£îhqwâ£
With the sound discretion of the Honorable Court.
COURT:
têñ.£îhqwâ£
Denied. (TSN, August 31,1983.)
On February 7, 1984, the following took place:
ATTY. RUIZ:
Your honor, we are still in the process of direct examination for the
accused. We are recalling the accused in the witness stand. I understand
your honor last time, due to lack of material time, we requested for a
resetting of these three cases inasmuch as the matter whether to give the
accused for the meantime your honor, I am petitioning that he must be
recalled and placed in the witness stand.
COURT: têñ.£îhqwâ£
It is discretionary on the part of the Judge. What can you
say Fiscal?
FISCAL FULVADORA:
83
I remembered right that it is the purpose for the trial, that the
manifestation of the defense counsel that he is through with the testimony
of the witness, he requested that the prosecution will be continued in
some other time.
ATTY. RUIZ:
We concur with the Provincial Fiscal but prior, we are petitioning the
Honorable Court to recall the witness for further direct examination and I
am requesting that will have to continue the proceeding. We are
convinced with the observation of the Court that it is discretionary of the
Honorable Court but this representation however, we would like to
request and reiterate and manifest for the petition that he be recalled. It is
not the intention of the defense counsel, your honor, to delay the speedy
termination of these cases. As a counsel for the accused, I would like to
reiterate that the accused be recalled to the witness stand.
FISCAL FULVADORA:
The Honorable Court will decide on that part of presentation of the
accused, whether to grant it or not the manifestation.
COURT: têñ.£îhqwâ£
How many questions are you asking?
ATTY. RUIZ:
Due to lack of material time, the three cases, I forgot to ask few questions
regarding the evidences or exhibits which are the panty, knife, and
scissors, in the direct examination in that, it was overlooked in the part of
this representation that the three after presented some of the exhibits per
prosecution, were not questioned.
FISCAL FULVADORA:
It is not the matter of forgotting the exhibits of the counsel, there are time
given to present this trial. I remembered that he propounded few
questions for the defense and he manifested that he is through in his
direct examination and it is my time to cross the testimony of the
accused.
ATTY. RUIZ:
I forgot, before the Honorable Court that this representation have reasons
of overlooking why I was not able to question to all the matters
considering of the lack of material time and that there are other cases
waiting which are ready for the hearing. It is the discretionary on the part
of the Honorable Court specially that the criminal penalty is death and
while the Provincial Fiscal having further presentation of exhibits at the
beginning of the case, where the questioning we were already finished,
yet the Provincial Fiscal continued separately to the presentation of other
cases.
COURT': têñ.£îhqwâ£
Denied.
Under cross. (TSN Feb. 7, 1984.)
It is obvious from the foregoing that the respondent judge did not
manifest the requisite cold impartiality which the petitioner deserved.
The petition which questions the actuations of the respondent judge and
seeks his disqualification was received by him on March 29, 1984.
Prudence dictated that he refrain from deciding the cases or at the very
least to hold in abeyance the promulgation of his decision pending action
by this Court. But prudence gave way to imprudence; the respondent
judge acted precipitately by deciding the cases on April 2, 1984, and
promulgating his decision on May 3 of the same year. All of the acts of
the respondent judge manifest grave abuse of discretion on his part
amounting to lack of jurisdiction which substantively prejudiced the
petitioner.
WHEREFORE, the petition is hereby granted. The decision in Criminal
Case Nos. 13, 14 and 15 of the respondent judge is set aside; the
aforesaid cases shall be transferred to Branch XVII of the Regional Trial
Court in Kidapawan for trial de novo which shall also resolve the
petitioner's motion for release on recognizance under Sec. 191 of P.D.
No. 603. No costs.
SO ORDERED. 1äwphï1.ñët
84
 EN BANC
G.R. No. L-6513 December 15, 1911
FAUSTINO LICHAUCO, in his own name and in behalf of his coheirs,
Eugenia, Clara, Luisa, Crisanto, Zacarias, Galo and Timotea
Lichauso, plaintiffs-appellants,
vs.
ANA ALEJANDRINO and her husband W. WEINMANN, defendant-
appellees.
Ramon Salinas, for appellants.
No appearance for appellees.
JOHNSON, J.:
On the 16th of July, 1908, the plaintiffs commenced an action against the
defendants, in the Court of First Instance of Pampanga, for the purpose
of recovering the sum of P1,657.75, with interest at 12 per cent from the
said 16th of July, 1908.
To this complaint the defendants demurred, which demurrer was, on the
23d of November, 1908, sustained by the Hon. Julio Llorente, judge. On
the same day (the 23d of November, 1908) the plaintiffs filed an
amended complaint against the defendants. The complaint was
itc@alf
accompanied by Exhibit A, B, C, and D. 1awphil.net
Later the defendants presented a demurrer which was overruled. On the
2d of July, 1909, the defendants presented a general and special answer,
in which they prayed to be relieved from all liability under the complaint,
with costs against the plaintiffs.
After hearing the evidence adduced during the trial of the cause, the Hon.
Julio Llorente, judge, on the 10th of February, 1901, rendered a judgment
in favor of the plaintiffs and against the defendants for the sum of
P610.22 Philippine currency, with interest at 6 per cent from the 16th of
July, 1908, with the provision that if the defendants failed to pay the said
amount, the plaintiffs were entitled to sell at public auction one-sixth part
of the land mortgaged under and by virtue of a contract between Mariano
Alejandrino and Cornelia Laochangco, dated the 30th of July, 1886. (See
Exhibit A.) Mariano Alejandrino was the father of the defendant, Ana
Alejandrino, and Cornelia Laochangco as the mother of the plaintiffs.
Mariano Alejandrino and Cornelia Laochangco are both dead.
From the judgment of the lower court the plaintiffs appealed.
From an examination of the record, the following facts seem to be true:
First. That on the 30th of July, 1886, the said Mariano Alejandrino
borrowed from the said Cornelia Laochangco the sum of P6,000 Mex.,
under certain conditions mentioned in the said contract. (See Exhibit A.)
Second. That on the 15th of August, 1895, the said Mariano Alejandrino
and Cornelia Laochangco liquidated the amount due under the said
contract, Exhibit A, and it was found on the date that there was still due
under the said contract the sum of P4,115.75. On the same day (August
15, 1895) the said Mariano Alejandrino borrowed from Cornelia
Laochangco the additional sum of P234.25, making a total amount due of
4,350 pesos Mex. (Exhibit B.)
Third. That on the 15th of December, 1906, all of the children of the said
Mariano Alejandrino, except the defendant herein, Ana Alejandrino,
entered into a contract, by the terms of which they obligated themselves
to pay to the plaintiffs the balance due from their father, Mariano
Alejandrino. (See Exhibit D.)
Fifth. That on the 23d of April, 1898, the amount due on the said contract
of July 30, 1886, was again liquidated and it was found that there was
remaining due and unpaid on the said contract, the sum of P4,465. (See
Exhibit C.)
Under the provisions of Exhibit D (the contract which was entered into by
all of the heirs of Mariano Alejandrino, except the defendant herein, Ana
Alejandrino), they obligated themselves to pay their proportional amount
of the indebtedness of their father, together with 12 per cent interest. The
plaintiffs claim that the amount due on the contract of July 30, 1886, at
the time of the commencement of the present action (the 15th of July,
1908), together with the interest amounted to the sum of P9,946.50, and
that the defendant herein, Ana Alejandrino, was liable for one-sixth part of
said sum, or the sum of P1,657.75.
The defendant, Ana Alejandrino, was not a party to the contract
represented by Exhibit D. she did not agree to pay 12 per cent interest on
85
the amount remaining due on the 23rd of April, 1898, of the debt between
her father and the plaintiffs herein. There is no proof in the record that
any demand was ever made upon her for the payment of her aliquot part
of the balance found to be due on the 23rd of April, 1898, either judicially
or extrajudicially. She was, therefore, not liable to pay interest or her
aliquot part of the said amount. The lower court correctly held, however,
that she was liable for the payment of one-sixth part of said amount by
virtue of her having accepted her proportional part of the property
involved and covered by the original contract between her father and the
mother of the plaintiffs, bearing date of July 30, 1886, or for the sum of
744.16 pesos Mex., which, reduced to conant, amounted to P610.22, the
amount for which the lower court rendered judgment, with 6 per cent from
the 16th of July, 1908.
While we have not discussed the assignments of error in detail, we
believe that we have answered each of them in effect. We have
discussed the question upon their merits as they are presented in the
record. There is a question of parties, however, which has not been
presented, which we can not overlook.
It will be noted that Faustino Lichauco has brought this action for himself
and in representation of his co-heirs. So far as the record shows, the co-
heirs have no knowledge of the pendency of the action. Faustino
Lichauco shows no authority for representing his co-heirs except the
mere allegation in the title of his complaint. He speaks of himself as the
plaintiff. The attorney signs himself as attorney for the plaintiff — not for
the plaintiffs. Faustino Lichauco represents himself and his co-heirs, and
the attorney-at-law, who signs the complaint, represents as he alleges
"the plaintiff." There is nothing in the record which shows that the co-heirs
are not capable of representing themselves. There is nothing in the
record which shows that they ever gave their consent to the
commencement of the present action. It may be assumed that they did,
but this not sufficient. The Code of Procedure in Civil Actions provides
that in Courts of First Instance a party may conduct his litigation
personally or by the aid of a lawyer, and his appearance must be either
personal or by the aid of a duly authorized member of the bar. (Sec. 34,
Act No. 190.) In the present case the co-heirs are neither in court
personally nor by the a duly authorized member of the bar. Therefore
they are not in court at all, and any judgment which we might render in
the present case, with reference to the heirs, either pro or con, would in
no way be binding upon them. (Espiritu vs. Crossfield and Vicente
Guasch, No. 5313). 1
The present case seems to have been tried in the lower court upon the
theory that all of the interested parties were present, and for that reason
we have discussed the case upon its merits, believing that the parties
would deem further litigation unnecessary, once being informed of the
views of this court upon the facts presented. This assumption, however,
is based upon the ground that even though the co-heirs had been
represented in the trial of the cause, in accordance with law, no other or
different evidence would have been adduced.
Therefore, following the decision of this court in the case of Lichauco vs.
Limjuco (19 Phil. Rep., 12), the judgment of the lower court is hereby set
aside, unless the coheirs of Faustino Lichauco, within a period of ten
days from notification of this decision, shall appear personally or by
attorney in the Court of First Instance of the Province or Pampanga,
either as plaintiffs or defendants, and in writing indicate their full
conformance with the proceedings had in the present cause. In which
case, the Court of First Instance of the Province of Pampanga is hereby
directed to enter a judgment confirming the judgment heretofore rendered
by said court on the 10th day of February, 1910.
SECOND DIVISION
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION
ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his
capacity as Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:
We are faced here with a controversy of far-reaching proportions. While
ostensibly only legal issues are involved, the Court's decision in this case
86
would indubitably have a profound effect on the political aspect of our
national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a
Chairman and six Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their appointment, at
least thirty-five years of age, holders of a college degree, and
must not have been candidates for any elective position in the
immediately preceding -elections. However, a majority thereof,
including the Chairman, shall be members of the Philippine Bar
who have been engaged in the practice of law for at least ten
years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of
the 1973 Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens of
the Philippines and, at the time of their appointment, at least thirty-five
years of age and holders of a college degree. However, a majority
thereof, including the Chairman, shall be members of the Philippine
Bar who have been engaged in the practice of law for at least ten years.'
(Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what
constitutes practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the
application of legal principles and technique to serve the interest
of another with his consent. It is not limited to appearing in court,
or advising and assisting in the conduct of litigation, but embraces
the preparation of pleadings, and other papers incident to actions
and special proceedings, conveyancing, the preparation of legal
instruments of all kinds, and the giving of all legal advice to
clients. It embraces all advice to clients and all actions taken for
them in matters connected with the law. An attorney engages in
the practice of law by maintaining an office where he is held out
to be-an attorney, using a letterhead describing himself as an
attorney, counseling clients in legal matters, negotiating with
opposing counsel about pending litigation, and fixing and
collecting fees for services rendered by his associate. (Black's
Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land
Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650)
A person is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising
person, firms, associations or corporations as to their rights under
the law, or appears in a representative capacity as an advocate in
proceedings pending or prospective, before any court,
commissioner, referee, board, body, committee, or commission
constituted by law or authorized to settle controversies and there,
in such representative capacity performs any act or acts for the
purpose of obtaining or defending the rights of their clients under
the law. Otherwise stated, one who, in a representative capacity,
engages in the business of advising clients as to their rights
under the law, or while so engaged performs any act or acts
either in court or outside of court for that purpose, is engaged in
the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and
Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105
Phil. 173,176-177) stated:
The practice of law is not limited to the conduct of cases
or litigation in court; it embraces the preparation of pleadings and
other papers incident to actions and special proceedings, the
management of such actions and proceedings on behalf of clients
before judges and courts, and in addition, conveying. In general,
all advice to clients, and all action taken for them in
matters connected with the law incorporation services,
assessment and condemnation services contemplating an
appearance before a judicial body, the foreclosure of a mortgage,
enforcement of a creditor's claim in bankruptcy and insolvency
proceedings, and conducting proceedings in attachment, and in
matters of estate and guardianship have been held to constitute
law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by
the trained legal mind of the legal effect of facts and conditions. (5
Am. Jr. p. 262, 263). (Emphasis supplied)
87
 Practice of law under modem conditions consists in no small part
of work performed outside of any court and having no immediate
relation to proceedings in court. It embraces conveyancing, the
giving of legal advice on a large variety of subjects, and the
preparation and execution of legal instruments covering an
extensive field of business and trust relations and other
affairs. Although these transactions may have no direct
connection with court proceedings, they are always subject to
become involved in litigation. They require in many aspects a
high degree of legal skill, a wide experience with men and affairs,
and great capacity for adaptation to difficult and complex
situations. These customary functions of an attorney or counselor
at law bear an intimate relation to the administration of justice by
the courts. No valid distinction, so far as concerns the question
set forth in the order, can be drawn between that part of the work
of the lawyer which involves appearance in court and that part
which involves advice and drafting of instruments in his office. It is
of importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and acting
at all times under the heavy trust obligations to clients which rests
upon all attorneys. (Moran, Comments on the Rules of Court, Vol.
3 [1953 ed.] , p. 665-666, citing In re Opinion of the
Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis
ours)
The University of the Philippines Law Center in conducting orientation
briefing for new lawyers (1974-1975) listed the dimensions of the practice
of law in even broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of
employment in the profession. If what he does exacts knowledge
of the law and is of a kind usual for attorneys engaging in the
active practice of their profession, and he follows some one or
more lines of employment such as this he is a practicing attorney
at law within the meaning of the statute. (Barr v. Cardell, 155 NW
312)
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience.
"To engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give
notice or render any kind of service, which device or service requires the
use in any degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it
has adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a
manifestation which I forgot to do during our review of the
provisions on the Commission on Audit. May I be allowed to
make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of
the Commission on Audit. Among others, the qualifications
provided for by Section I is that "They must be Members of the
Philippine Bar" — I am quoting from the provision — "who have
been engaged in the practice of law for at least ten years".
To avoid any misunderstanding which would result in excluding members
of the Bar who are now employed in the COA or Commission on
Audit, we would like to make the clarification that this provision on
qualifications regarding members of the Bar does not necessarily refer or
involve actual practice of law outside the COA We have to interpret this to
mean that as long as the lawyers who are employed in the COA are
using their legal knowledge or legal talent in their respective work within
COA, then they are qualified to be considered for appointment as
members or commissioners, even chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional
Commissions and Agencies and we deem it important to take it up on the
floor so that this interpretation may be made available whenever this
provision on the qualifications as regards members of the Philippine Bar
engaging in the practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
88
 MR. OPLE. Is he, in effect, saying that service in the COA by a
lawyer is equivalent to the requirement of a law practice that is
set forth in the Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA,
although it is auditing, will necessarily involve legal work; it will
involve legal work. And, therefore, lawyers who are employed in
COA now would have the necessary qualifications in accordance
with the Provision on qualifications under our provisions on the
Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this
is equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among
others, that the Chairman and two Commissioners of the Commission on
Audit (COA) should either be certified public accountants with not less
than ten years of auditing practice, or members of the Philippine Bar who
have been engaged in the practice of law for at least ten years.
(emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many
ways synonymous with the word "lawyer." Today, although many lawyers
do not engage in private practice, it is still a fact that the majority of
lawyers are private practitioners. (Gary Munneke, Opportunities in Law
Careers [VGM Career Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as
commonly understood, means "an individual or organization engaged in
the business of delivering legal services." (Ibid.). Lawyers who practice
alone are often called "sole practitioners." Groups of lawyers are called
"firms." The firm is usually a partnership and members of the firm are the
partners. Some firms may be organized as professional corporations and
the members called shareholders. In either case, the members of the firm
are the experienced attorneys. In most firms, there are younger or more
inexperienced salaried attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law
practice is essentially tautologous, unhelpful defining the practice of law
as that which lawyers do. (Charles W. Wolfram, Modern Legal
Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of
law is defined as the performance of any acts . . . in or out of court,
commonly understood to be the practice of law. (State Bar Ass'n v.
Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958]
[quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626
[1941]). Because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would obviously
be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the
most publicly familiar role for lawyers as well as an uncommon role for
the average lawyer. Most lawyers spend little time in courtrooms, and a
large percentage spend their entire practice without litigating a case.
(Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the
litigating lawyer's role colors much of both the public image and the self
perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects
history, not reality. (Ibid.). Why is this so? Recall that the late Alexander
SyCip, a corporate lawyer, once articulated on the importance of a lawyer
as a business counselor in this wise: "Even today, there are still
uninformed laymen whose concept of an attorney is one who principally
tries cases before the courts. The members of the bench and bar and the
informed laymen such as businessmen, know that in most developed
societies today, substantially more legal work is transacted in law offices
than in the courtrooms. General practitioners of law who do both litigation
and non-litigation work also know that in most cases they find themselves
spending more time doing what [is] loosely desccribe[d] as business
counseling than in trying cases. The business lawyer has been described
as the planner, the diagnostician and the trial lawyer, the surgeon. I[t]
need not [be] stress[ed] that in law, as in medicine, surgery should be
avoided where internal medicine can be effective." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig
engage in a number of legal tasks, each involving different legal
doctrines, legal skills, legal processes, legal institutions, clients, and other
interested parties. Even the increasing numbers of lawyers in specialized
practice wig usually perform at least some legal services outside their
specialty. And even within a narrow specialty such as tax practice, a
lawyer will shift from one legal task or role such as advice-giving to an
89
importantly different one such as representing a client before an
administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is
one of the relatively rare types — a litigator who specializes in this work
to the exclusion of much else. Instead, the work will require the lawyer to
have mastered the full range of traditional lawyer skills of client
counselling, advice-giving, document drafting, and negotiation. And
increasingly lawyers find that the new skills of evaluation and mediation
are both effective for many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work
that is constrained in very important ways, at least theoretically, so as to
remove from it some of the salient features of adversarial litigation. Of
these special roles, the most prominent is that of prosecutor. In some
lawyers' work the constraints are imposed both by the nature of the client
and by the way in which the lawyer is organized into a social unit to
perform that work. The most common of these roles are those of
corporate practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below
quoted are emerging trends in corporate law practice, a departure from
the traditional concept of practice of law.
We are experiencing today what truly may be called a
revolutionary transformation in corporate law practice. Lawyers
and other professional groups, in particular those members
participating in various legal-policy decisional contexts, are
finding that understanding the major emerging trends in
corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today
requires an accurate understanding of the nature and implications
of the corporate law research function accompanied by an
accelerating rate of information accumulation. The recognition of
the need for such improved corporate legal policy formulation,
particularly "model-making" and "contingency planning," has
impressed upon us the inadequacy of traditional procedures in
many decisional contexts.
In a complex legal problem the mass of information to be processed, the
sorting and weighing of significant conditional factors, the appraisal of
major trends, the necessity of estimating the consequences of given
courses of action, and the need for fast decision and response in
situations of acute danger have prompted the use of sophisticated
concepts of information flow theory, operational analysis, automatic data
processing, and electronic computing equipment. Understandably, an
improved decisional structure must stress the predictive component of
the policy-making process, wherein a "model", of the decisional context
or a segment thereof is developed to test projected alternative courses of
action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in
predicting and projecting the trends of the law, the subject of corporate
finance law has received relatively little organized and formalized
attention in the philosophy of advancing corporate legal education.
Nonetheless, a cross-disciplinary approach to legal research has become
a vital necessity.
Certainly, the general orientation for productive contributions by those
trained primarily in the law can be improved through an early introduction
to multi-variable decisional context and the various approaches for
handling such problems. Lawyers, particularly with either a master's or
doctorate degree in business administration or management, functioning
at the legal policy level of decision-making now have some appreciation
for the concepts and analytical techniques of other professions which are
currently engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing
and maintaining the business issue raised. (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred
to as the "abogado de campanilla." He is the "big-time" lawyer, earning
big money and with a clientele composed of the tycoons and magnates of
business and industry.
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of
attorneys employed by a single corporation will vary with the size and
type of the corporation. Many smaller and some large corporations farm
out all their legal problems to private law firms. Many others have in-
house counsel only for certain matters. Other corporation have a staff
large enough to handle most legal problems in-house.
90
A corporate lawyer, for all intents and purposes, is a lawyer who handles
the legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out
as corporate secretary (in board meetings), appearances in both courts
and other adjudicatory agencies (including the Securities and Exchange
Commission), and in other capacities which require an ability to deal with
the law.
At any rate, a corporate lawyer may assume responsibilities other than
the legal affairs of the business of the corporation he is
representing. These include such matters as determining policy and
becoming involved in management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated
from the action, or not understanding how one's work actually fits into the
work of the orgarnization. This can be frustrating to someone who needs
to see the results of his work first hand. In short, a corporate lawyer is
sometimes offered this fortune to be more closely involved in the running
of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by
a multinational corporation (MNC). Some large MNCs provide one of the
few opportunities available to corporate lawyers to enter the international
law field. After all, international law is practiced in a relatively small
number of companies and law firms. Because working in a foreign
country is perceived by many as glamorous, tills is an area coveted by
corporate lawyers. In most cases, however, the overseas jobs go to
experienced attorneys while the younger attorneys do their "international
practice" in law libraries. (Business Star, "Corporate Law Practice," May
25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce
Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a
good lawyer is one who perceives the difficulties, and the excellent
lawyer is one who surmounts them." (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the
arm," so to speak. No longer are we talking of the traditional law teaching
method of confining the subject study to the Corporation Code and the
Securities Code but an incursion as well into the intertwining modern
management issues.
Such corporate legal management issues deal primarily with three (3)
types of learning: (1) acquisition of insights into current advances which
are of particular significance to the corporate counsel; (2) an introduction
to usable disciplinary skins applicable to a corporate counsel's
management responsibilities; and (3) a devotion to the organization and
management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with
a shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the
counsel's role. For that matter, the corporate lawyer reviews the
globalization process, including the resulting strategic repositioning that
the firms he provides counsel for are required to make, and the need to
think about a corporation's; strategy at multiple levels. The salience of the
nation-state is being reduced as firms deal both with global multinational
entities and simultaneously with sub-national governmental units. Firms
increasingly collaborate not only with public entities but with each other
— often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained
a new role as a stakeholder — in some cases participating in the
organization and operations of governance through participation on
boards and other decision-making roles. Often these new patterns
develop alongside existing legal institutions and laws are perceived as
barriers. These trends are complicated as corporations organize for
global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental
policies toward the promotion and management of technology. New
collaborative arrangements for promoting specific technologies or
competitiveness more generally require approaches from industry that
differ from older, more adversarial relationships and traditional forms of
seeking to influence governmental policies. And there are lessons to be
learned from other countries. In Europe, Esprit, Eureka and Race are
examples of collaborative efforts between governmental and business
Japan's MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all
91
kinds of organizations. Effectiveness of both long-term and temporary
groups within organizations has been found to be related to indentifiable
factors in the group-context interaction such as the groups actively
revising their knowledge of the environment coordinating work with
outsiders, promoting team achievements within the organization. In
general, such external activities are better predictors of team
performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate
lawyer vis-a-vis the managerial mettle of corporations are challenged.
Current research is seeking ways both to anticipate effective managerial
procedures and to understand relationships of financial liability and
insurance considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors
are apropos:
First System Dynamics. The field of systems dynamics has been found
an effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback
loops, inventory levels, and rates of flow, enable users to simulate all
sorts of systematic problems — physical, economic, managerial, social,
and psychological. New programming techniques now make the system
dynamics principles more accessible to managers — including corporate
counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department,
it can be used to appraise the settlement value of litigation, aid in
negotiation settlement, and minimize the cost and risk involved in
managing a portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models
can be used directly by parties and mediators in all lands of negotiations.
All integrated set of such tools provide coherent and effective negotiation
support, including hands-on on instruction in these techniques. A
simulation case of an international joint venture may be used to illustrate
the point.
[Be this as it may,] the organization and management of the legal
function, concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They differ
from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such
legal entities at that time when transactional or similar facts are being
considered and made.
Managerial Jurisprudence. This is the framework within which are
undertaken those activities of the firm to which legal consequences
attach. It needs to be directly supportive of this nation's evolving
economic and organizational fabric as firms change to stay competitive in
a global, interdependent environment. The practice and theory of "law" is
not adequate today to facilitate the relationships needed in trying to make
a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The
general counsel has emerged in the last decade as one of the most
vibrant subsets of the legal profession. The corporate counsel hear
responsibility for key aspects of the firm's strategic issues, including
structuring its global operations, managing improved relationships with an
increasingly diversified body of employees, managing expanded liability
exposure, creating new and varied interactions with public decision-
makers, coping internally with more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is
not enough to make one a good general corporate counsel nor to give
him a full sense of how the legal system shapes corporate activities. And
even if the corporate lawyer's aim is not the understand all of the law's
effects on corporate activities, he must, at the very least, also gain a
working knowledge of the management issues if only to be able to grasp
not only the basic legal "constitution' or makeup of the modem
corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p.
4).
The challenge for lawyers (both of the bar and the bench) is to have more
than a passing knowledge of financial law affecting each aspect of their
work. Yet, many would admit to ignorance of vast tracts of the financial
law territory. What transpires next is a dilemma of professional security:
Will the lawyer admit ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business Star, "Corporate Finance
law," Jan. 11, 1989, p. 4).
92
Respondent Christian Monsod was nominated by President Corazon C.
Aquino to the position of Chairman of the COMELEC in a letter received
by the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not
possess the required qualification of having been engaged in the practice
of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the
nomination of Monsod as Chairman of the COMELEC. On June 18, 1991,
he took his oath of office. On the same day, he assumed office as
Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on
Appointments of Monsod's nomination, petitioner as a citizen and
taxpayer, filed the instant petition for certiorari and Prohibition praying
that said confirmation and the consequent appointment of Monsod as
Chairman of the Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed
the bar examinations of 1960 with a grade of 86-55%. He has been a
dues paying member of the Integrated Bar of the Philippines since its
inception in 1972-73. He has also been paying his professional license
fees as lawyer for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the
bar, Atty. Monsod worked in the law office of his father. During his stint in
the World Bank Group (1963-1970), Monsod worked as an operations
officer for about two years in Costa Rica and Panama, which involved
getting acquainted with the laws of member-countries negotiating loans
and coordinating legal, economic, and project work of the Bank. Upon
returning to the Philippines in 1970, he worked with the Meralco Group,
served as chief executive officer of an investment bank and subsequently
of a business conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or chief executive
officer. As former Secretary-General (1986) and National Chairman
(1987) of NAMFREL. Monsod's work involved being knowledgeable in
election law. He appeared for NAMFREL in its accreditation hearings
before the Comelec. In the field of advocacy, Monsod, in his personal
capacity and as former Co-Chairman of the Bishops Businessmen's
Conference for Human Development, has worked with the under
privileged sectors, such as the farmer and urban poor groups, in initiating,
lobbying for and engaging in affirmative action for the agrarian reform law
and lately the urban land reform bill. Monsod also made use of his legal
knowledge as a member of the Davide Commission, a quast judicial
body, which conducted numerous hearings (1990) and as a member of
the Constitutional Commission (1986-1987), and Chairman of its
Committee on Accountability of Public Officers, for which he was cited by
the President of the Commission, Justice Cecilia Muñoz-Palma for
"innumerable amendments to reconcile government functions with
individual freedoms and public accountability and the party-list system for
the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod
used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a
team, and which is adequately constituted to meet the various
contingencies that arise during a negotiation. Besides top officials
of the Borrower concerned, there are the legal officer (such as the
legal counsel), the finance manager, and an operations
officer (such as an official involved in negotiating the contracts)
who comprise the members of the team. (Guillermo V. Soliven,
"Loan Negotiating Strategies for Developing Country Borrowers,"
Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982,
p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's
Constitution; it lays down the law as far as the loan transaction is
concerned. Thus, the meat of any Loan Agreement can be
compartmentalized into five (5) fundamental parts: (1) business
terms; (2) borrower's representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt
restructuring program. For aside from performing the tasks of
legislative drafting and legal advising, they score national
development policies as key factors in maintaining their countries'
sovereignty. (Condensed from the work paper, entitled "Wanted:
Development Lawyers for Developing Nations," submitted by L.
Michael Hager, regional legal adviser of the United States Agency
for International Development, during the Session on Law for the
Development of Nations at the Abidjan World Conference in Ivory
Coast, sponsored by the World Peace Through Law Center on
August 26-31, 1973). ( Emphasis supplied)
Loan concessions and compromises, perhaps even more so than
purely renegotiation policies, demand expertise in the law of
93
 contracts, in legislation and agreement drafting and in
renegotiation. Necessarily, a sovereign lawyer may work with an
international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring
contract agreements contain such a mixture of technical language
that they should be carefully drafted and signed only with the
advise of competent counsel in conjunction with the guidance of
adequate technical support personnel. (See International Law
Aspects of the Philippine External Debts, an unpublished
dissertation, U.S.T. Graduate School of Law, 1987, p. 321). (
Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract
construction is the set of terms and conditions which determines
the contractual remedies for a failure to perform one or more
elements of the contract. A good agreement must not only define
the responsibilities of both parties, but must also state the
recourse open to either party when the other fails to discharge an
obligation. For a compleat debt restructuring represents a
devotion to that principle which in the ultimate analysis is sine qua
non for foreign loan agreements-an adherence to the rule of law
in domestic and international affairs of whose kind U.S. Supreme
Court Justice Oliver Wendell Holmes, Jr. once said: "They carry
no banners, they beat no drums; but where they are, men learn
that bustle and bush are not the equal of quiet genius and serene
mastery." (See Ricardo J. Romulo, "The Role of Lawyers in
Foreign Investments," Integrated Bar of the Philippine Journal,
Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of
law". particularly the modern concept of law practice, and taking into
consideration the liberal construction intended by the framers of the
Constitution, Atty. Monsod's past work experiences as a lawyer-
economist, a lawyer-manager, a lawyer-entrepreneur of industry, a
lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and
the poor — verily more than satisfy the constitutional requirement — that
he has been engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143
SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be
performed by the officer in which it is vested according to his best
lights, the only condition being that the appointee should possess
the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are
others better qualified who should have been preferred. This is a
political question involving considerations of wisdom which only
the appointing authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil
Service Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this
case, and all the other legal requirements are satisfied, the
Commission has no alternative but to attest to the appointment in
accordance with the Civil Service Law. The Commission has no
authority to revoke an appointment on the ground that another
person is more qualified for a particular position. It also has no
authority to direct the appointment of a substitute of its choice. To
do so would be an encroachment on the discretion vested upon
the appointing authority. An appointment is essentially within the
discretionary power of whomsoever it is vested, subject to the
only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar,
consists of four (4) stages: (1) nomination; (2) confirmation by the
Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent
appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. .
. . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on
Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is
mandated by Section 1(2) Sub-Article C, Article IX of the Constitution
which provides:
The Chairman and the Commisioners shall be appointed by the
President with the consent of the Commission on Appointments
for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two
Members for five years, and the last Members for three years,
without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any
94
 Member be appointed or designated in a temporary or acting
capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say
that his definition of the practice of law is the traditional or
stereotyped notion of law practice, as distinguished from the
modern concept of the practice of law, which modern connotation
is exactly what was intended by the eminent framers of the 1987
Constitution. Moreover, Justice Padilla's definition would require
generally a habitual law practice, perhaps practised two or three
times a week and would outlaw say, law practice once or twice a
year for ten consecutive years. Clearly, this is far from the
constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states
that in my written opinion, I made use of a definition of law practice which
really means nothing because the definition says that law practice " . . . is
what people ordinarily mean by the practice of law." True I cited the
definition but only by way of sarcasm as evident from my statement that
the definition of law practice by "traditional areas of law practice is
essentially tautologous" or defining a phrase by means of the phrase
itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers
almost all situations, most individuals, in making use of the law, or in
advising others on what the law means, are actually practicing law. In that
sense, perhaps, but we should not lose sight of the fact that Mr. Monsod
is a lawyer, a member of the Philippine Bar, who has been practising law
for over ten years. This is different from the acts of persons practising
law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an
elected President of the Philippines, say, on the ground that he lacks one
or more qualifications. This matter, I greatly doubt. For one thing, how
can an action or petition be brought against the President? And even
assuming that he is indeed disqualified, how can the action be
entertained since he is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public
hearings on Monsod's confirmation, implicitly determined that he
possessed the necessary qualifications as required by law. The judgment
rendered by the Commission in the exercise of such an acknowledged
power is beyond judicial interference except only upon a clear showing of
a grave abuse of discretion amounting to lack or excess of jurisdiction.
(Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Commission's
judgment. In the instant case, there is no occasion for the exercise of the
Court's corrective power, since no abuse, much less a grave abuse of
discretion, that would amount to lack or excess of jurisdiction and would
warrant the issuance of the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the
President, may the Supreme Court reverse the Commission, and
thus in effect confirm the appointment? Clearly, the answer is in
the negative.
(2) In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in
the U.S. Congress) decides to confirm a Presidential nominee, it
would be incredible that the U.S. Supreme Court would
still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that
giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator
of Judea asked Delilah (who was Samson's beloved) for help in capturing
Samson. Delilah agreed on condition that —
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator
placed an iron rod burning white-hot two or three inches away from in
front of Samson's eyes. This blinded the man. Upon hearing of what had
happened to her beloved, Delilah was beside herself with anger, and
fuming with righteous fury, accused the procurator of reneging on his
95
word. The procurator calmly replied: "Did any blade touch his skin? Did
any blood flow from his veins?" The procurator was clearly relying on the
letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
EN BANC
B.M. No. 1678 December 17, 2007
PETITION FOR LEAVE TO RESUME PRACTICE OF LAW,
BENJAMIN M. DACANAY, petitioner.
RESOLUTION
CORONA, J.:
This bar matter concerns the petition of petitioner Benjamin M. Dacanay
for leave to resume the practice of law.
Petitioner was admitted to the Philippine bar in March 1960. He practiced
law until he migrated to Canada in December 1998 to seek medical
attention for his ailments. He subsequently applied for Canadian
citizenship to avail of Canada’s free medical aid program. His application
was approved and he became a Canadian citizen in May 2004.
On July 14, 2006, pursuant to Republic Act (RA) 9225 (Citizenship
Retention and Re-Acquisition Act of 2003), petitioner reacquired his
Philippine citizenship.1 On that day, he took his oath of allegiance as a
Filipino citizen before the Philippine Consulate General in Toronto,
Canada. Thereafter, he returned to the Philippines and now intends to
resume his law practice. There is a question, however, whether petitioner
Benjamin M. Dacanay lost his membership in the Philippine bar when he
gave up his Philippine citizenship in May 2004. Thus, this petition.
In a report dated October 16, 2007, the Office of the Bar Confidant cites
Section 2, Rule 138 (Attorneys and Admission to Bar) of the Rules of
Court:
SECTION 2. Requirements for all applicants for admission to the
bar. – Every applicant for admission as a member of the
bar must be a citizen of the Philippines, at least twenty-one
years of age, of good moral character, and a resident of the
Philippines; and must produce before the Supreme Court
satisfactory evidence of good moral character, and that no
charges against him, involving moral turpitude, have been filed or
are pending in any court in the Philippines.
Applying the provision, the Office of the Bar Confidant opines that, by
virtue of his reacquisition of Philippine citizenship, in 2006, petitioner has
again met all the qualifications and has none of the disqualifications for
membership in the bar. It recommends that he be allowed to resume the
practice of law in the Philippines, conditioned on his retaking the lawyer’s
oath to remind him of his duties and responsibilities as a member of the
Philippine bar.
We approve the recommendation of the Office of the Bar Confidant with
certain modifications.
The practice of law is a privilege burdened with conditions. 2 It is so
delicately affected with public interest that it is both a power and a duty of
the State (through this Court) to control and regulate it in order to protect
and promote the public welfare.3
Adherence to rigid standards of mental fitness, maintenance of the
highest degree of morality, faithful observance of the rules of the legal
profession, compliance with the mandatory continuing legal education
requirement and payment of membership fees to the Integrated Bar of
the Philippines (IBP) are the conditions required for membership in good
standing in the bar and for enjoying the privilege to practice law. Any
breach by a lawyer of any of these conditions makes him unworthy of the
trust and confidence which the courts and clients repose in him for the
continued exercise of his professional privilege. 4
Section 1, Rule 138 of the Rules of Court provides:
SECTION 1. Who may practice law. – Any person heretofore duly
admitted as a member of the bar, or thereafter admitted as such
in accordance with the provisions of this Rule, and who is in good
and regular standing, is entitled to practice law.
96
Pursuant thereto, any person admitted as a member of the Philippine bar
in accordance with the statutory requirements and who is in good and
regular standing is entitled to practice law.
Admission to the bar requires certain qualifications. The Rules of Court
mandates that an applicant for admission to the bar be a citizen of the
Philippines, at least twenty-one years of age, of good moral character
and a resident of the Philippines.5 He must also produce before this Court
satisfactory evidence of good moral character and that no charges
against him, involving moral turpitude, have been filed or are pending in
any court in the Philippines.6
Moreover, admission to the bar involves various phases such as
furnishing satisfactory proof of educational, moral and other
qualifications;7 passing the bar examinations;8 taking the lawyer’s
oath9 and signing the roll of attorneys and receiving from the clerk of
court of this Court a certificate of the license to practice. 10
The second requisite for the practice of law ― membership in good
standing ― is a continuing requirement. This means continued
membership and, concomitantly, payment of annual membership dues in
the IBP;11 payment of the annual professional tax;12 compliance with the
mandatory continuing legal education requirement; 13 faithful observance
of the rules and ethics of the legal profession and being continually
subject to judicial disciplinary control. 14
Given the foregoing, may a lawyer who has lost his Filipino citizenship
still practice law in the Philippines? No.
The Constitution provides that the practice of all professions in the
Philippines shall be limited to Filipino citizens save in cases prescribed by
law.15 Since Filipino citizenship is a requirement for admission to the bar,
loss thereof terminates membership in the Philippine bar and,
consequently, the privilege to engage in the practice of law. In other
words, the loss of Filipino citizenship ipso jure terminates the privilege to
practice law in the Philippines. The practice of law is a privilege denied to
foreigners.16
The exception is when Filipino citizenship is lost by reason of
naturalization as a citizen of another country but subsequently reacquired
pursuant to RA 9225. This is because "all Philippine citizens who become
citizens of another country shall be deemed not to have lost their
Philippine citizenship under the conditions of [RA 9225]."17Therefore, a
Filipino lawyer who becomes a citizen of another country is deemed
never to have lost his Philippine citizenship if he reacquires it in
accordance with RA 9225. Although he is also deemed never to have
terminated his membership in the Philippine bar, no automatic right to
resume law practice accrues.
Under RA 9225, if a person intends to practice the legal profession in the
Philippines and he reacquires his Filipino citizenship pursuant to its
provisions "(he) shall apply with the proper authority for a license or
permit to engage in such practice."18 Stated otherwise, before a lawyer
who reacquires Filipino citizenship pursuant to RA 9225 can resume his
law practice, he must first secure from this Court the authority to do so,
conditioned on:
(a) the updating and payment in full of the annual membership
dues in the IBP;
(b) the payment of professional tax;
(c) the completion of at least 36 credit hours of mandatory
continuing legal education; this is specially significant to refresh
the applicant/petitioner’s knowledge of Philippine laws and update
him of legal developments and
(d) the retaking of the lawyer’s oath which will not only remind
him of his duties and responsibilities as a lawyer and as an officer
of the Court, but also renew his pledge to maintain allegiance to
the Republic of the Philippines.
Compliance with these conditions will restore his good standing as a
member of the Philippine bar.
WHEREFORE, the petition of Attorney Benjamin M. Dacanay is
hereby GRANTED, subject to compliance with the conditions stated
above and submission of proof of such compliance to the Bar Confidant,
after which he may retake his oath as a member of the Philippine bar.
SO ORDERED.
97
 EN BANC
G.R. No. L-12426 February 16, 1959
PHILIPPINE LAWYER'S ASSOCIATION, petitioner,
vs.
CELEDONIO AGRAVA, in his capacity as Director of the Philippines
Patent Office, respondent.
Arturo A. Alafriz for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P.
de Castro for respondent.
MONTEMAYOR, J.:
This is the petition filed by the Philippine Lawyer's Association for
prohibition and injunction against Celedonio Agrava, in his capacity as
Director of the Philippines Patent Office.
On may 27, 1957, respondent Director issued a circular announcing that
he had scheduled for June 27, 1957 an examination for the purpose of
determining who are qualified to practice as patent attorneys before the
Philippines Patent Office, the said examination to cover patent law and
jurisprudence and the rules of practice before said office. According to
the circular, members of the Philippine Bar, engineers and other persons
with sufficient scientific and technical training are qualified to take the
said examination. It would appear that heretofore, respondent Director
has been holding similar examinations.
It is the contention of the petitioner Philippine Lawyer's Association that
one who has passed the bar examinations and is licensed by the
Supreme Court to practice law in the Philippines and who is in good
standing, is duly qualified to practice before the Philippines Patent Office,
and that consequently, the cat of the respondent Director requiring
members of the Philippine Bar in good standing to take and pass an
examination given by the Patent Office as a condition precedent to their
being allowed to practice before said office, such as representing
applicants in the preparation and prosecution of applications for patent, is
in excess of his jurisdiction and is in violation of the law.
In his answer, respondent Director, through the Solicitor General,
maintains that the prosecution of patent cases "does not involve entirely
or purely the practice of law but includes the application of scientific and
technical knowledge and training, so much so that, as a matter of actual
practice, the prosecution of patent cases may be handled not only by
lawyers, but also engineers and other persons with sufficient scientific
and technical training who pass the prescribed examinations as given by
the Patent Office; . . . that the Rules of Court do not prohibit the Patent
Office, or any other quasi-judicial body from requiring further condition or
qualification from those who would wish to handle cases before the
Patent Office which, as stated in the preceding paragraph, requires more
of an application of scientific and technical knowledge than the mere
application of provisions of law; . . . that the action taken by the
respondent is in accordance with Republic Act No. 165, otherwise known
as the Patent Law of the Philippines, which similar to the United States
Patent Law, in accordance with which the United States Patent Office has
also prescribed a similar examination as that prescribed by respondent. .
..
Respondent further contends that just as the Patent law of the United
States of America authorizes the Commissioner of Patents to prescribe
examinations to determine as to who practice before the United States
Patent Office, the respondent, is similarly authorized to do so by our
Patent Law, Republic Act No. 165.
Although as already stated, the Director of Patents, in the past, would
appear to have been holding tests or examinations the passing of which
was imposed as a required qualification to practice before the Patent
Office, to our knowledge, this is the first time that the right of the Director
of Patents to do so, specially as regards members of the bar, has been
questioned formally, or otherwise put in issue. And we have given it
careful thought and consideration.
The Supreme Court has the exclusive and constitutional power with
respect to admission to the practice of law in the Philippines 1 and to any
member of the Philippine Bar in good standing may practice law
anywhere and before any entity, whether judicial or quasi-judicial or
administrative, in the Philippines. Naturally, the question arises as to
whether or not appearance before the patent Office and the preparation
and the prosecution of patent applications, etc., constitutes or is included
in the practice of law.
The practice of law is not limited to the conduct of cases or
litigation in court; it embraces the preparation of pleadings and
other papers incident to actions and social proceedings, the
management of such actions and proceedings on behalf of clients
before judges and courts, and in addition, conveying. In general,
98
 all advice to clients, and all action taken for them in
matters connected with the law corporation services, assessment
and condemnation services contemplating an appearance before
a judicial body, the foreclosure of a mortgage, enforcement of a
creditor's claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of estate
and guardianship have been held to constitute law practice as do
the preparation and drafting of legal instruments, where the work
done involves the determination by the trained legal mind of the
legal effect of facts and conditions. (5 Am. Jur. p. 262, 263).
(Emphasis supplied).
Practice of law under modern conditions consists in no small part
of work performed outside of any court and having no immediate
relation to proceedings in court. It embraces conveyancing, the
giving of legal advice on a large variety of subjects, and the
preparation and execution of legal instruments covering an
extensive field of business and trust relations and other
affairs. Although these transactions may have no direct
connection with court proceedings, they are always subject to
become involved in litigation. They require in many aspects a
high degree of legal skill, a wide experience with men and affairs,
and great capacity for adaptation to difficult and complex
situations. These customary functions of an attorney or counselor
at law bear an intimate relation to the administration of justice by
the courts. No valid distinction, so far as concerns the question
set forth in the order, can be drawn between that part which
involves advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and acting
at all times under the heavy trust obligations to clients which rests
upon all attorneys. (Moran, Comments on the Rules of Court, Vol.
3 (1953 ed.), p. 665-666, citing In re Opinion of the Justices
(Mass.), 194 N.E. 313, quoted in Rhode Is. Bar Assoc. vs.
Automobile Service Assoc. (R. I. ) 179 A. 139, 144). (Emphasis
ours).
In our opinion, the practice of law includes such appearance before the
Patent Office, the representation of applicants, oppositors, and other
persons, and the prosecution of their applications for patent, their
oppositions thereto, or the enforcement of their rights in patent cases. In
the first place, although the transaction of business in the Patent Office
involves the use and application of technical and scientific knowledge and
training, still, all such business has to be rendered in accordance with the
Patent Law, as well as other laws, including the Rules and Regulations
promulgated by the Patent Office in accordance with law. Not only this,
but practice before the Patent Office involves the interpretation and
application of other laws and legal principles, as well as the existence of
facts to be established in accordance with the law of evidence and
procedure. For instance: Section 8 of our Patent Law provides that an
invention shall not be patentable if it is contrary to public order or morals,
or to public health or welfare. Section 9 says that an invention shall not
be considered new or patentable if it was known or used by others in the
Philippines before the invention thereof by the inventor named in any
printed publication in the Philippines or any foreign country more than
one year before the application for a patent therefor, or if it had been in
public use or on sale in the Philippines for more than one year before the
application for the patent therefor. Section 10 provides that the right to
patent belongs to the true and actual inventor, his heirs, legal
representatives or assigns. Section 25 and 26 refer to connection of any
mistake in a patent. Section 28 enumerates the grounds for cancellation
of a patent; that although any person may apply for such cancellation,
under Section 29, the Solicitor General is authorized to petition for the
cancellation of a patent. Section 30 mentions the requirements of a
petition for cancellation. Section 31 and 32 provide for a notice of hearing
of the petition for cancellation of the patent by the Director of Patents in
case the said cancellation is warranted. Under Section 34, at any time
after the expiration of three years from the day the patent was granted,
any person patent on several grounds, such as, if the patented invention
is not being worked in the Philippines on a commercial scale, or if the
demand for the patented article in the Philippines on a commercial scale,
or if the demand for the patented article in the Philippines is not being
met to an adequate extent and reasonable terms, or if by reason of the
patentee's refusal to grant a license on reasonable terms or by reason of
the condition attached by him to the license, purchase or use of the
patented article or working of the patented process or machine of
production, the establishment of a new trade or industry in the Philippines
is prevented; or if the patent or invention relates to food or medicine or is
necessary to public health or public safety. All these things involve the
applications of laws, legal principles, practice and procedure. They call
for legal knowledge, training and experience for which a member of the
bar has been prepared.
In support of the proposition that much of the business and many of the
act, orders and decisions of the Patent Director involve questions of law
or a reasonable and correct evaluation of facts, the very Patent Law,
Republic Act No. 165, Section 61, provides that:
99
 . . . . The applicant for a patent or for the registration of a design,
any party to a proceeding to cancel a patent or to obtain a
compulsory license, and any party to any other proceeding in the
Office may appeal to the Supreme Court from any final order or
decision of the director.
In other words, the appeal is taken to this Tribunal. If the transaction of
business in the Patent Office and the acts, orders and decisions of the
Patent Director involved exclusively or mostly technical and scientific
knowledge and training, then logically, the appeal should be taken not to
a court or judicial body, but rather to a board of scientists, engineers or
technical men, which is not the case.
Another aspect of the question involves the consideration of the nature of
the functions and acts of the Head of the Patent Office.
. . . . The Commissioner, in issuing or withholding patents, in
reissues, interferences, and extensions, exercises quasi-judicial
functions. Patents are public records, and it is the duty of the
Commissioner to give authenticated copies to any person, on
payment of the legal fees. (40 Am. Jur. 537). (Emphasis
supplied).
. . . . The Commissioner has the only original initiatory jurisdiction
that exists up to the granting and delivering of a patent, and it is
his duty to decide whether the patent is new and whether it is the
proper subject of a patent; and his action in awarding or refusing
a patent is a judicial function. In passing on an application the
commissioner should decide not only questions of law, but
also questions of fact, as whether there has been a prior public
use or sale of the article invented. . . . (60 C.J.S. 460). (Emphasis
supplied).
The Director of Patents, exercising as he does judicial or quasi-judicial
functions, it is reasonable to hold that a member of the bar, because of
his legal knowledge and training, should be allowed to practice before the
Patent Office, without further examination or other qualification. Of
course, the Director of Patents, if he deems it advisable or necessary,
may require that members of the bar practising before him enlist the
assistance of technical men and scientist in the preparation of papers and
documents, such as, the drawing or technical description of an invention
or machine sought to be patented, in the same way that a lawyer filing an
application for the registration of a parcel of land on behalf of his clients,
is required to submit a plan and technical description of said land,
prepared by a licensed surveyor.
But respondent Director claims that he is expressly authorized by the law
to require persons desiring to practice or to do business before him to
submit an examination, even if they are already members of the bar. He
contends that our Patent Law, Republic Act No. 165, is patterned after
the United States Patent Law; and of the United States Patent Office in
Patent Cases prescribes an examination similar to that which he
(respondent) has prescribed and scheduled. He invites our attention to
the following provisions of said Rules of Practice:
Registration of attorneys and agents. — A register of an attorneys
and a register agents are kept in the Patent Office on which are
entered the names of all persons recognized as entitled to
represent applicants before the Patent Office in the preparation
and prosecution of applicants for patent. Registration in the
Patent Office under the provisions of these rules shall only entitle
the person registered to practice before the Patent Office.
(a) Attorney at law. — Any attorney at law in good standing
admitted to practice before any United States Court or the highest
court of any State or Territory of the United States who fulfills the
requirements and complied with the provisions of these rules may
be admitted to practice before the Patent Office and have his
name entered on the register of attorneys.
xxx xxx xxx
(c) Requirement for registration. — No person will be admitted to
practice and register unless he shall apply to the Commissioner
of Patents in writing on a prescribed form supplied by the
Commissioner and furnish all requested information and material;
and shall establish to the satisfaction of the Commissioner that he
is of good moral character and of good repute and possessed of
the legal and scientific and technical qualifications necessary to
enable him to render applicants for patent valuable service, and is
otherwise competent to advise and assist him in the presentation
and prosecution of their application before the Patent Office. In
order that the Commissioner may determine whether a person
seeking to have his name placed upon either of the registers has
the qualifications specified, satisfactory proof of good moral
character and repute, and of sufficient basic training in scientific
100
 and technical matters must be submitted and an examination
which is held from time to time must be taken and passed. The
taking of an examination may be waived in the case of any
person who has served for three years in the examining corps of
the Patent Office.
Respondent states that the promulgation of the Rules of Practice of the
United States Patent Office in Patent Cases is authorized by the United
States Patent Law itself, which reads as follows:
The Commissioner of Patents, subject to the approval of the
Secretary of Commerce may prescribe rules and regulations
governing the recognition of agents, attorneys, or other persons
representing applicants or other parties before his office, and may
require of such persons, agents, or attorneys, before being
recognized as representatives of applicants or other persons, that
they shall show they are of good moral character and in good
repute, are possessed of the necessary qualifications to enable
them to render to applicants or other persons valuable service,
and are likewise to competent to advise and assist applicants or
other persons in the presentation or prosecution of their
applications or other business before the Office. The
Commissioner of Patents may, after notice and opportunity for a
hearing, suspend or exclude, either generally or in any particular
case from further practice before his office any person, agent or
attorney shown to be incompetent or disreputable, or guilty of
gross misconduct, or who refuses to comply with the said rules
and regulations, or who shall, with intent to defraud in any matter,
deceive, mislead, or threaten any applicant or prospective
applicant, or other person having immediate or prospective
applicant, or other person having immediate or prospective
business before the office, by word, circular, letter, or by
advertising. The reasons for any such suspension or exclusion
shall be duly recorded. The action of the Commissioner may be
reviewed upon the petition of the person so refused recognition or
so suspended by the district court of the United States for the
District of Columbia under such conditions and upon such
proceedings as the said court may by its rules determine.
(Emphasis supplied)
Respondent Director concludes that Section 78 of Republic Act No. 165
being similar to the provisions of law just reproduced, then he is
authorized to prescribe the rules and regulations requiring that persons
desiring to practice before him should submit to and pass an
examination. We reproduce said Section 78, Republic Act No. 165, for
purposes of comparison:
SEC. 78. Rules and regulations. — The Director subject to the
approval of the Secretary of Justice, shall promulgate the
necessary rules and regulations, not inconsistent with law, for the
conduct of all business in the Patent Office.
The above provisions of Section 78 certainly and by far, are different from
the provisions of the United States Patent Law as regards authority to
hold examinations to determine the qualifications of those allowed to
practice before the Patent Office. While the U.S. Patent Law authorizes
the Commissioner of Patents to require attorneys to show that they
possess the necessary qualifications and competence to render valuable
service to and advise and assist their clients in patent cases, which
showing may take the form of a test or examination to be held by the
Commissioner, our Patent Law, Section 78, is silent on this important
point. Our attention has not been called to any express provision of our
Patent Law, giving such authority to determine the qualifications of
persons allowed to practice before the Patent Office.
Section 551 of the Revised Administrative Code authorizes every chief of
bureau to prescribe forms and make regulations or general orders not
inconsistent with law, to secure the harmonious and efficient
administration of his branch of the service and to carry into full effect the
laws relating to matters within the jurisdiction of his bureau. Section 608
of Republic Act 1937, known as the Tariff and Customs Code of the
Philippines, provides that the Commissioner of Customs shall, subject to
the approval of the Department Head, makes all rules and regulations
necessary to enforce the provisions of said code. Section 338 of the
National Internal Revenue Code, Commonwealth Act No. 466 as
amended, states that the Secretary of Finance, upon recommendation of
the Collector of Internal Revenue, shall promulgate all needful rules and
regulations for the effective enforcement of the provisions of the code.
We understand that rules and regulations have been promulgated not
only for the Bureau of Customs and Internal Revenue, but also for other
bureaus of the Government, to govern the transaction of business in and
to enforce the law for said bureaus.
Were we to allow the Patent Office, in the absence of an express and
clear provision of law giving the necessary sanction, to require lawyers to
submit to and pass on examination prescribed by it before they are
allowed to practice before said Patent Office, then there would be no
reason why other bureaus specially the Bureau of Internal Revenue and
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Customs, where the business in the same area are more or less
complicated, such as the presentation of books of accounts, balance
sheets, etc., assessments exemptions, depreciation, these as regards the
Bureau of Internal Revenue, and the classification of goods, imposition of
customs duties, seizures, confiscation, etc., as regards the Bureau of
Customs, may not also require that any lawyer practising before them or
otherwise transacting business with them on behalf of clients, shall first
pass an examination to qualify.
In conclusion, we hold that under the present law, members of the
Philippine Bar authorized by this Tribunal to practice law, and in good
standing, may practice their profession before the Patent Office, for the
reason that much of the business in said office involves the interpretation
and determination of the scope and application of the Patent Law and
other laws applicable, as well as the presentation of evidence to establish
facts involved; that part of the functions of the Patent director are judicial
or quasi-judicial, so much so that appeals from his orders and decisions
are, under the law, taken to the Supreme Court.
For the foregoing reasons, the petition for prohibition is granted and the
respondent Director is hereby prohibited from requiring members of the
Philippine Bar to submit to an examination or tests and pass the same
before being permitted to appear and practice before the Patent Office.
No costs.
FIRST DIVISION
A.C. No. 5738 February 19, 2008
WILFREDO M. CATU, complainant,
vs.
ATTY. VICENTE G. RELLOSA, respondent.
RESOLUTION
CORONA, J.:
Complainant Wilfredo M. Catu is a co-owner of a lot1 and the building
erected thereon located at 959 San Andres Street, Malate, Manila. His
mother and brother, Regina Catu and Antonio Catu, contested the
possession of Elizabeth C. Diaz-Catu2 and Antonio Pastor3 of one of the
units in the building. The latter ignored demands for them to vacate the
premises. Thus, a complaint was initiated against them in the Lupong
Tagapamayapa of Barangay 723, Zone 79 of the 5th District of
Manila4 where the parties reside.
Respondent, as punong barangay of Barangay 723, summoned the
parties to conciliation meetings.5 When the parties failed to arrive at an
amicable settlement, respondent issued a certification for the filing of the
appropriate action in court.
Thereafter, Regina and Antonio filed a complaint for ejectment against
Elizabeth and Pastor in the Metropolitan Trial Court of Manila, Branch 11.
Respondent entered his appearance as counsel for the defendants in that
case. Because of this, complainant filed the instant administrative
complaint,6 claiming that respondent committed an act of impropriety as a
lawyer and as a public officer when he stood as counsel for the
defendants despite the fact that he presided over the conciliation
proceedings between the litigants as punong barangay.
In his defense, respondent claimed that one of his duties as punong
barangay was to hear complaints referred to the barangay's Lupong
Tagapamayapa. As such, he heard the complaint of Regina and Antonio
against Elizabeth and Pastor. As head of the Lupon, he performed his
task with utmost objectivity, without bias or partiality towards any of the
parties. The parties, however, were not able to amicably settle their
dispute and Regina and Antonio filed the ejectment case. It was then that
Elizabeth sought his legal assistance. He acceded to her request. He
handled her case for free because she was financially distressed and he
wanted to prevent the commission of a patent injustice against her.
The complaint was referred to the Integrated Bar of the Philippines (IBP)
for investigation, report and recommendation. As there was no factual
issue to thresh out, the IBP's Commission on Bar Discipline (CBD)
required the parties to submit their respective position papers. After
evaluating the contentions of the parties, the IBP-CBD found sufficient
ground to discipline respondent.7
According to the IBP-CBD, respondent admitted that, as punong
barangay, he presided over the conciliation proceedings and heard the
complaint of Regina and Antonio against Elizabeth and Pastor.
Subsequently, however, he represented Elizabeth and Pastor in the
ejectment case filed against them by Regina and Antonio. In the course
thereof, he prepared and signed pleadings including the answer with
102
counterclaim, pre-trial brief, position paper and notice of appeal. By so
doing, respondent violated Rule 6.03 of the Code of Professional
Responsibility:
Rule 6.03 - A lawyer shall not, after leaving government service,
accept engagement or employment in connection with any matter
in which he intervened while in said service.
Furthermore, as an elective official, respondent contravened the
prohibition under Section 7(b)(2) of RA 6713:8
SEC. 7. Prohibited Acts and Transactions. - In addition to acts
and omissions of public officials and employees now prescribed
in the Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official ands
employee and are hereby declared to be unlawful:
xxx xxx xxx
(b) Outside employment and other activities related thereto. -
Public officials and employees during their incumbency shall not:
xxx xxx xxx
(2) Engage in the private practice of profession
unless authorized by the Constitution or law, provided
that such practice will not conflict or tend to conflict with
their official functions; xxx (emphasis supplied)
According to the IBP-CBD, respondent's violation of this prohibition
constituted a breach of Canon 1 of the Code of Professional
Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND,PROMOTE
RESPECT FOR LAW AND LEGAL PROCESSES. (emphasis
supplied)
For these infractions, the IBP-CBD recommended the respondent's
suspension from the practice of law for one month with a stern warning
that the commission of the same or similar act will be dealt with more
severely.9 This was adopted and approved by the IBP Board of
Governors.10
We modify the foregoing findings regarding the transgression of
respondent as well as the recommendation on the imposable penalty.
Rule 6.03 of the Code of Professional Responsibility Applies Only to
Former Government Lawyers
Respondent cannot be found liable for violation of Rule 6.03 of the Code
of Professional Responsibility. As worded, that Rule applies only to a
lawyer who has left government service and in connection "with any
matter in which he intervened while in said service." In PCGG v.
Sandiganbayan,11 we ruled that Rule 6.03 prohibits former government
lawyers from accepting "engagement or employment in connection with
any matter in which [they] had intervened while in said service."
Respondent was an incumbent punong barangay at the time he
committed the act complained of. Therefore, he was not covered by that
provision.
Section 90 of RA 7160, Not Section 7(b)(2) of RA 6713, Governs The
Practice of Profession of Elective Local Government Officials
Section 7(b)(2) of RA 6713 prohibits public officials and employees,
during their incumbency, from engaging in the private practice of their
profession "unless authorized by the Constitution or law, provided that
such practice will not conflict or tend to conflict with their official
functions." This is the general law which applies to all public officials and
employees.
For elective local government officials, Section 90 of RA 716012 governs:
SEC. 90. Practice of Profession. - (a) All governors, city and
municipal mayors are prohibited from practicing their profession
or engaging in any occupation other than the exercise of their
functions as local chief executives.
(b) Sanggunian members may practice their professions, engage
in any occupation, or teach in schools except during session
hours: Provided, That sanggunian members who are members of
the Bar shall not:
(1) Appear as counsel before any court in any civil case
wherein a local government unit or any office, agency, or
instrumentality of the government is the adverse party;
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 (2) Appear as counsel in any criminal case wherein an
officer or employee of the national or local government is
accused of an offense committed in relation to his office;
(3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which
he is an official; and
(4) Use property and personnel of the Government except
when the sanggunian member concerned is defending the
interest of the Government.
(c) Doctors of medicine may practice their profession even during
official hours of work only on occasions of emergency: Provided,
That the officials concerned do not derive monetary
compensation therefrom.
This is a special provision that applies specifically to the practice of
profession by elective local officials. As a special law with a definite
scope (that is, the practice of profession by elective local officials), it
constitutes an exception to Section 7(b)(2) of RA 6713, the general law
on engaging in the private practice of profession by public officials and
employees. Lex specialibus derogat generalibus.13
Under RA 7160, elective local officials of provinces, cities, municipalities
and barangays are the following: the governor, the vice governor and
members of the sangguniang panlalawigan for provinces; the city mayor,
the city vice mayor and the members of the sangguniang panlungsod for
cities; the municipal mayor, the municipal vice mayor and the members of
the sangguniang bayan for municipalities and the punong barangay, the
members of the sangguniang barangay and the members of
the sangguniang kabataan for barangays.
Of these elective local officials, governors, city mayors and municipal
mayors are prohibited from practicing their profession or engaging in any
occupation other than the exercise of their functions as local chief
executives. This is because they are required to render full time service.
They should therefore devote all their time and attention to the
performance of their official duties.
On the other hand, members of the sangguniang
panlalawigan, sangguniang panlungsod or sangguniang bayanmay
practice their professions, engage in any occupation, or teach in schools
except during session hours. In other words, they may practice their
professions, engage in any occupation, or teach in schools outside their
session hours. Unlike governors, city mayors and municipal mayors,
members of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayan are required to hold regular sessions
only at least once a week.14Since the law itself grants them the authority
to practice their professions, engage in any occupation or teach in
schools outside session hours, there is no longer any need for them to
secure prior permission or authorization from any other person or office
for any of these purposes.
While, as already discussed, certain local elective officials (like
governors, mayors, provincial board members and councilors) are
expressly subjected to a total or partial proscription to practice their
profession or engage in any occupation, no such interdiction is made on
the punong barangay and the members of the sangguniang
barangay. Expressio unius est exclusio alterius.15 Since they are
excluded from any prohibition, the presumption is that they are allowed to
practice their profession. And this stands to reason because they are not
mandated to serve full time. In fact, the sangguniang barangay is
supposed to hold regular sessions only twice a month. 16
Accordingly, as punong barangay, respondent was not forbidden to
practice his profession. However, he should have procured prior
permission or authorization from the head of his Department, as required
by civil service regulations.
A Lawyer In Government Service Who Is Not Prohibited To Practice
Law Must Secure Prior Authority From The Head Of His Department
A civil service officer or employee whose responsibilities do not require
his time to be fully at the disposal of the government can engage in the
private practice of law only with the written permission of the head of the
department concerned.17 Section 12, Rule XVIII of the Revised Civil
Service Rules provides:
Sec. 12. No officer or employee shall engage directly in
any private business, vocation, or profession or be connected
with any commercial, credit, agricultural, or industrial
undertaking without a written permission from the head of the
Department: Provided, That this prohibition will be absolute in
the case of those officers and employees whose duties and
responsibilities require that their entire time be at the disposal of
104
 the Government; Provided, further, That if an employee is granted
permission to engage in outside activities, time so devoted
outside of office hours should be fixed by the agency to the end
that it will not impair in any way the efficiency of the officer or
employee: And provided, finally, that no permission is necessary
in the case of investments, made by an officer or employee,
which do not involve real or apparent conflict between his private
interests and public duties, or in any way influence him in the
discharge of his duties, and he shall not take part in the
management of the enterprise or become an officer of the board
of directors. (emphasis supplied)
As punong barangay, respondent should have therefore obtained the
prior written permission of the Secretary of Interior and Local Government
before he entered his appearance as counsel for Elizabeth and Pastor.
This he failed to do.
The failure of respondent to comply with Section 12, Rule XVIII of the
Revised Civil Service Rules constitutes a violation of his oath as a lawyer:
to obey the laws. Lawyers are servants of the law, vires legis, men of the
law. Their paramount duty to society is to obey the law and promote
respect for it. To underscore the primacy and importance of this duty, it is
enshrined as the first canon of the Code of Professional Responsibility.
In acting as counsel for a party without first securing the required written
permission, respondent not only engaged in the unauthorized practice of
law but also violated civil service rules which is a breach of Rule 1.01 of
the Code of Professional Responsibility:
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. (emphasis supplied)
For not living up to his oath as well as for not complying with the exacting
ethical standards of the legal profession, respondent failed to comply with
Canon 7 of the Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND THE DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR. (emphasis supplied)
Indeed, a lawyer who disobeys the law disrespects it. In so doing, he
disregards legal ethics and disgraces the dignity of the legal profession.
Public confidence in the law and in lawyers may be eroded by the
irresponsible and improper conduct of a member of the bar.18 Every
lawyer should act and comport himself in a manner that promotes public
confidence in the integrity of the legal profession. 19
A member of the bar may be disbarred or suspended from his office as
an attorney for violation of the lawyer's oath20 and/or for breach of the
ethics of the legal profession as embodied in the Code of Professional
Responsibility.
WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby
found GUILTY of professional misconduct for violating his oath as a
lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional
Responsibility. He is therefore SUSPENDED from the practice of
law for a period of six months effective from his receipt of this resolution.
He is sternly WARNED that any repetition of similar acts shall be dealt
with more severely.
Respondent is strongly advised to look up and take to heart the meaning
of the word delicadeza.
Let a copy of this resolution be furnished the Office of the Bar Confidant
and entered into the records of respondent Atty. Vicente G. Rellosa. The
Office of the Court Administrator shall furnish copies to all the courts of
the land for their information and guidance.
SO ORDERED.
EN BANC
G.R. No. 1203 May 15, 1903
In the matter of the suspension of HOWARD D. TERRELL from the
practice of law.
Solicitor-General Araneta for Government.
W. A. Kincaid for defendant.
PER CURIAM:
105
Howard D. Terrell, an attorney-at-law, was ordered to show cause in the
Court of First Instance, in the city of Manila, on the 5th day of February,
1903, why he should not be suspended as a member of the bar of the city
of Manila for the reasons:
First, that he had assisted in the organization of the "Centro Bellas Artes"
Club, after he had been notified that the said organization was made for
the purpose of evading the law then in force in said city; and,
Secondly, for acting as attorney for said "Centro Bellas Artes" during the
time of and after its organization, which organization was known to him to
be created for the purpose of evading the law.
The accused appeared on the return day, and by his counsel, W. A.
Kincaid, made answer to these charges, denying the same, and filed
affidavits in answer thereto. After reading testimony given by said Howard
D. Terrell, in the case of the United States vs. H. D. Terrell, 1 wherein he
was charged with estafa, and after reading the said affidavits in his
behalf, and hearing his counsel, the court below found, and decided as a
fact, that the charges aforesaid made against Howard D. Terrell were
true, and thereupon made an order suspending him from his office as a
lawyer in the Philippine Islands, and directed the clerk of the court to
transmit to this court a certified copy of the order of suspension, as well
as a full statement of the facts upon which the same was based.
We have carefully considered these facts, and have reached the
conclusion that they were such as to justify the court below in arriving at
the conclusion that the knowledge and acts of the accused in connection
with the organization of the "Centro Bellas Artes" Club were of such a
nature and character as to warrant his suspension from practice.
The promoting of organizations, with knowledge of their objects, for the
purpose of violating or evading the laws against crime constitutes such
misconduct on the part of an attorney, an officer of the court, as amounts
to malpractice or gross misconduct in his office, and for which he may be
removed or suspended. (Code of Civil Procedure, sec. 21.) The assisting
of a client in a scheme which the attorney knows to be dishonest, or the
conniving at a violation of law, are acts which justify disbarment.
In this case, however, inasmuch as the defendant in the case of the
United States, vs. Terrell was acquitted on the charge of estafa, and has
not, therefore, been convicted of crime, and as the acts with which he is
charged in this proceeding, while unprofessional and hence to be
condemned, are not criminal in their nature, we are of opinion that the
ends of justice will be served by the suspension of said Howard D. Terrell
from the practice of law in the Philippine Islands for the term of one year
from the 7th day of February, 1903.
It is therefore directed that the said Howard D. Terrell be suspended from
the practice of law for a term of one year from February 7, 1903. It is so
ordered.
EN BANC
A.M. No. L-363 July 31, 1962
IN RE: DISBARMENT PROCEEDINGS AGAINST ATTY. DIOSDADO Q.
GUTIERREZ, respondent.
Victoriano A. Savellano for complaint.
Nestor M. Andrada for respondent.
MAKALINTAL, J.:
Respondent Diosdado Q. Gutierrez is a member of the Philippine Bar,
admitted to it on October 5, 1945. In criminal case No. R-793 of the Court
of First Instance of Oriental Mindoro he was convicted of the murder of
Filemon Samaco, former municipal mayor of Calapan, and together with
his co-conspirators was sentenced to the penalty of death. Upon review
by this Court the judgment of conviction was affirmed on June 30, 1956
(G.R. No. L-17101), but the penalty was changed to reclusion
perpetua. After serving a portion of the sentence respondent was granted
a conditional pardon by the President on August 19, 1958. The
unexecuted portion of the prison term was remitted "on condition that he
shall not again violate any of the penal laws of the Philippines."
On October 9, 1958 the widow of the deceased Filemon Samaco, victim
in the murder case, filed a verified complaint before this Court praying
that respondent be removed from the roll of lawyers pursuant to Rule
127, section 5. Respondent presented his answer in due time, admitting
the facts alleged by complainant regarding pardon in defense, on the
authority of the decision of this Court in the case of In re Lontok, 43 Phil.
293.
106
Under section 5 of Rule 127, a member of the bar may be removed
suspended from his office as attorney by the Supreme Court by reason of
his conviction of a crime insolving moral turpitude. Murder is, without
doubt, such a crime. The term "moral turpitude" includes everything
which is done contrary to justice, honesty, modesty or good morals. In re
Carlos S. Basa, 41 Phil. 275. As used in disbarment statutes, it means an
act of baseness, vileness, or depravity in the private and social duties
which a man owes to his fellowmen or to society in general, contrary to
the accepted rule of right and duty between man and man. State ex
rel. Conklin v. Buckingham, 84 P. 2nd 49; 5 Am. Jur. Sec. 279. pp. 428-
429.
The only question to be resolved is whether or not the conditional pardon
extended to respondent places him beyond the scope of the rule on
disbarment aforecited. Reliance is placed by him squarely on the Lontok
case. The respondent therein was convicted of bigamy and thereafter
pardoned by the Governor-General. In a subsequent viction, this Court
decided in his favor and held: "When proceedings to strike an attorney's
name from the rolls the fact of a conviction for a felony ground for
disbarment, it has been held that a pardon operates to wipe out the
conviction and is a bar to any proceeding for the disbarment of the
attorney after the pardon has been granted."
It is our view that the ruling does not govern the question now before us.
In making it the Court proceeded on the assumption that the pardon
granted to respondent Lontok was absolute. This is implicit in the ratio
decidendi of the case, particularly in the citations to support it, namely. In
Re Emmons, 29 Cal. App. 121; Scott vs. State, 6 Tex. Civ. App. 343;
and Ex parte Garland, 4 Wall, 380. Thus in Scott vs. State the court said:
We are of opinion that after received an unconditional pardon the
record of the felony conviction could no longer be used as a basis
for the proceeding provided for in article 226. The record, when
offered in evidence, was met with an unconditional pardon, and
could not, therefore, properly be said to afford "proof of a
conviction of any felony." Having been thus cancelled, all its force
as a felony conviction was taken away. A pardon falling short of
this would not be a pardon, according to the judicial construction
which that act of executive grace was received. Ex parte Garland,
4 Wall, 344; Knote v. U.S., 95 U.S. 149, and cases there
cited; Young v. Young, 61 Tex. 191.
And the portion of the decision in Ex parte Garland quoted with approval
in the Lontok case is as follows:
A pardon reaches both the punishment prescribed for the offense
and the guilt of the offender; and when the pardon is full, it
releases the punishment and blots out the existence of guilt, so
that in the eye of the law the offender is as innocent as if he had
never committed the offense. It granted before conviction, it
prevents any of the penalties and disabilities, consequent upon
conviction, from attaching; if granted after conviction, it removes
the penalties and disabilities, and restores him to all his civil rights
it makes him, as it were, a new man, and gives him a new credit
and capacity.
The pardon granted to respondent here is not absolute but conditional,
and merely remitted the unexecuted portion of his term. It does not reach
the offense itself, unlike that in Ex parte Garland, which was "a full pardon
and amnesty for all offense by him committed in connection with rebellion
(civil war) against government of the United States."
The foregoing considerations rendered In re Lontok are inapplicable here.
Respondent Gutierrez must be judged upon the fact of his conviction for
murder without regard to the pardon he invokes in defense. The crime
was qualified by treachery and aggravated by its having been committed
in hand, by taking advantage of his official position (respondent being
municipal mayor at the time) and with the use of motor vehicle. People
vs. Diosdado Gutierrez, supra. The degree of moral turpitude involved is
such as to justify his being purged from the profession.
The practice of law is a privilege accorded only to those who measure up
to certain rigid standards of mental and moral fitness. For the admission
of a candidate to the bar the Rules of Court not only prescribe a test of
academic preparation but require satisfactory testimonials of good moral
character. These standards are neither dispensed with nor lowered after
admission: the lawyer must continue to adhere to them or else incur the
risk of suspension or removal. As stated in Ex parte Wall, 107 U.S. 263,
27 Law ed., 552, 556: "Of all classes and professions, the lawyer is most
sacredly bound to uphold the laws. He is their sworn servant; and for him,
of all men in the world, to repudiate and override the laws, to trample
them under foot and to ignore the very bonds of society, argues
recreancy to his position and office and sets a pernicious example to the
insubordinate and dangerous elements of the body politic.
WHEREFORE, pursuant to Rule 127, Section 5, and considering the
nature of the crime for which respondent Diosdado Q. Gutierrez has been
convicted, he is ordered disbarred and his name stricken from the roll of
lawyers.
107
 EN BANC
A.C. No. 8253 March 15, 2011
(Formerly CBD Case No. 03-1067)
ERLINDA R. TAROG, Complainant,
vs.
ATTY. ROMULO L. RICAFORT, Respondent.
DECISION
PER CURIAM:
We resolve a complaint for disbarment for alleged grave misconduct
brought against Atty. Romulo L. Ricafort for his failure to account for and
to return the sums of money received from his clients for purposes of the
civil action to recover their property from a foreclosing banking institution
he was handling for them. The original complainant was Arnulfo A. Tarog,
but his wife, Erlinda R. Tarog, substituted him upon his intervening death.
Antecedents
In 1992, the Tarogs sought the advice of Atty. Jaime L. Miralles regarding
their bank-foreclosed property located in the Bicol Region. Atty. Miralles
advised them to engage a Bicol-based attorney for that purpose. Thus,
they went to see Atty. Ricafort accompanied by Vidal Miralles, their friend
who was a brother of Atty. Miralles.1 They ultimately engaged Atty.
Ricafort as their attorney on account of his being well-known in the
community, and being also the Dean of the College of Law of Aquinas
University where their son was then studying.
Having willingly accepted the engagement, Atty. Ricafort required the
Tarogs to pay ₱7,000.00 as filing fee, which they gave to him. 2 He
explained the importance of depositing ₱65,000.00 in court to counter the
₱60,000.00 deposited by Antonio Tee, the buyer of the foreclosed
property. After they informed him that they had only ₱60,000.00, he
required them to add some more amount (dagdagan niyo ng konti).3 To
raise the ₱65,000.00 for the Tarogs, therefore, Vidal solicited a loan from
one Sia with the guarantee of his brother Atty. Miralles. Sia issued a
check in that amount in the name of Arnulfo. 4
On November 7, 1992, the Tarogs and Vidal went to the office of Atty.
Ricafort to deliver the ₱65,000.00. When Arnulfo said that he had first to
encash the check at the bank, Atty. Ricafort persuaded him to entrust the
check to him instead so that he (Atty. Ricafort) would be the one to
encash it and then deposit the amount in court. On that representation,
Arnulfo handed the check to Atty. Ricafort. 5
After some time, the Tarogs visited Atty. Ricafort to verify the status of
the consignation. Atty. Ricafort informed them that he had not deposited
the amount in court, but in his own account. He promised to return the
money, plus interest. Despite several inquiries about when the amount
would be returned, however, the Tarogs received mere assurances from
Atty. Ricafort that the money was in good hands.
The Tarogs further claimed that the Regional Trial Court, Branch 52, in
Sorsogon (RTC), where their complaint for annulment of sale was being
heard, had required the parties to file their memoranda. Accordingly, they
delivered ₱15,000.00 to Atty. Ricafort for that purpose, but he did not file
the memorandum.6
When it became apparent to the Tarogs that Atty. Ricafort would not
make good his promise of returning the ₱65,000.00, plus interest, Arnulfo
demanded by his letter dated December 3, 2002 that Atty. Ricafort return
the ₱65,000.00, plus interest, and the ₱15,000.00 paid for the filing of the
memorandum.7 Yet, they did not receive any reply from Atty. Ricafort.
In his defense, Atty. Ricafort denied that the ₱65,000.00 was intended to
be deposited in court, insisting that the amount was payment for his legal
services under a "package deal," that is, the amount included his
acceptance fee, attorney’s fee, and appearance fees from the filing of the
complaint for annulment of sale until judgment, but excluding appeal. He
claimed that the fees were agreed upon after considering the value of the
property, his skill and experience as a lawyer, the labor, time, and trouble
involved, and his professional character and social standing; that at the
time he delivered the check, Arnulfo read, understood, and agreed to the
contents of the complaint, which did not mention anything about any
consignation;8 and that Arnulfo, being a retired school principal, was a
learned person who would not have easily fallen for any scheme like the
one they depicted against him.
Findings of the IBP Commissioner
Following his investigation, Commissioner Wilfredo E.J.E. Reyes of the
Integrated Bar of the Philippines-Commission on Bar Discipline rendered
108
his Report and Recommendation dated October 7, 2004, 9 in which he
concluded that:
It is respectfully recommended that respondent, Atty. Romulo L. Ricafort
be DISBARRED and be ordered to return the amount of ₱65,000 and
₱15,000 which he got from his client.
RESPECTFULLY SUBMITTED.
Commissioner Reyes regarded the testimonies of Erlinda and Vidal more
credible than the testimony of Atty. Ricafort, observing:
Based on the said testimony, statements and actuations of complainant
Erlinda Tarog and his collaborating witness, we find their statements to
be credible.
Atty. Ricafort in his testimony attempted to show that the amount of
₱65,000.00 was paid to him by the complainant as acceptance fee on a
package deal basis and under said deal, he will answer the filing fee,
attorney’s fees and other expenses incurred up to the time the judgment
is rendered. He presented a transcript of stenographic notes wherein it
was stated that complainant himself did not consign the money in court.
The respondent admitted in his testimony that he did not have any
retainer agreement nor any memorandum signed or any receipt which
would prove that the amount of ₱65,000.00 was received as an
acceptance fee for the handling of the case.
Atty. Romulo Ricafort stated that there was no retainer agreement and
that he issued only receipt because the late Arnulfo Tarog will not pay
unless a receipt is issued.
The Undersigned Commissioner asked the respondent "Basically you
describe that thing that will happen in the litigation related to the payment
of fees. But when you received that ₱65,000.00 did you not put anything
there that you will describe the nature of legal work which you will
undertake considering that you have considered this ₱65,000.00 as your
attorney’s fees? And Atty. Ricafort stated: Yes I did. I do not know why
they were not showing the receipt. That is a big amount, Your Honor.
They demanded for me the receipt of ₱30,000.00 how much more with
that ₱65,000.00. They demanded for the receipt of that ₱65,000.00 but I
cannot explain the reason why……
During the clarificatory questioning, the Undersigned Commissioner also
asked Atty. Ricafort why he did not answer the demand letter sent by
Arnulfo Tarog and the proof of service of the said letter was presented by
the complainant. Conveniently, Atty. Ricafort stated that he did not
receive the letter and it was received by their helper who did not forward
the letter to him. He also adopted the position that the complainant was
demanding the ₱65,000.00 wherefore this case was filed. When
confronted by the testimony of Mr. Vidal Miralles, the respondent Atty.
Ricafort just denied the allegation that he received the ₱65,000.00 for
deposit to the court. He also denied that Mr. Miralles has visited his
residence for follow-up the reimbursement.
The Undersigned Commissioner asked the respondent if he has personal
animosity with Arnuldo Tarog, Erlinda Tarog and Vidal Miralles and if
there are any reason why this case was filed against him. In his answer
the respondent stated that we have been very good friends for the past
ten (10) years and he said that in fact he was surprised when the
complaint was filed against him and they even attached the decision of
the Supreme Court for his suspension and maybe they are using this
case to be able to collect from him.
The main defense of the respondent is that the complainant in this case
testified that the total amount to redeem his property is ₱240,000.00 and
when asked whether he consigned the money to the court to redeem the
property he answered in the negative.
The alleged payment of ₱65,000.00 was made prior to the said testimony
sometime in 1992. Hence, it was stated on complainant’s affidavit that on
November 7, 1992, prior to filing said complaint I had given him the sum
of Sixty Five Thousand Pesos to be deposited to the Regional Trial Court
representing redemption money of the Real Estate Mortgage. The
amount of ₱65,000.00 is very much close to the amount of the principal
obligation of the complainant and it is not surprising for a non-lawyer to
hold on to the belief that with the filing of the case for annulment of
foreclosure his case would be strengthened by making a deposit in court
hence, the motivation to produce the deposit was logical and natural
insofar as the complainant is concerned. The testimony of the
complainant in court that the bank needed ₱240,000.00 for the
redemption of the property will have no bearing on the actuation of the
complainant who has been required to deposit ₱65,000.00 by his lawyer.
The Undersigned Commission has no alternative but to believe in the
credibility and truthfulness of complainant’s narration that of Mrs. Erlinda
Tarog and Vidal Miralles.10
109
Commissioner Reyes concluded that Atty. Ricafort violated Canon 15,
and Rules 16.01, 16.02 and 16.03 of Canon 16 of the Code of
Professional Responsibility by taking advantage of the vulnerability of his
clients and by being dishonest in his dealings with them by refusing to
return the amount of ₱65,000.00 to them.
On November 4, 2004, the IBP Board of Governors adopted Resolution
No. XVI-2004-473,11 resolving to return the matter to Commissioner
Reyes for a clarification of whether or not there was evidence to support
the claim that the ₱65,000.00 had been in payment of attorney’s fees and
other expenses.
On October 11, 2005, Commissioner Reyes issued a second Report and
Recommendation,12 in which he declared that Atty. Ricafort did not
present any retainer agreement or receipt to prove that the amount of
₱65,000.00 had been part of his attorney’s fees; that Atty. Ricafort had
willfully ignored the demand of Arnulfo by not replying to the demand
letter; that, instead, Atty. Ricafort had insisted that the househelp who
had received the demand letter had not given it to him; and that in his
(Commissioner Reyes) presence, Atty. Ricafort had also promised to the
complainant that he would settle his liability, but Atty. Ricafort did not
make good his promise despite several resettings to allow him to settle
his obligation.
Action of IBP Board of Governors
Through Resolution No. XVII-2006-569,13 therefore, the IBP Board of
Governors adopted and approved the Report and Recommendation of
Commissioner Reyes and recommended the disbarment of Atty. Ricafort
and the order for him to return the amounts of ₱65,000.00 and
₱15,000.00 to Erlinda, viz:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case herein made part of this
Resolution as Annex "A" and, finding the recommendation fully supported
by the evidence on record and the applicable laws and rules, and
considering that Respondent has taken advantage of his client [sic]
vulnerability and has been dishonest with his dealings to his client, Atty.
Romulo L. Ricafort is hereby DISBARRED and Ordered to Return the
amount of ₱65,000 and ₱15,000 to complainant.
Atty. Ricafort moved for reconsideration, 14 maintaining that a retainer
agreement was immaterial because he had affirmed having received the
₱65,000.00 and having issued a receipt for the amount; that he had not
kept the receipt because "the practice of lawyers in most instances is that
receipt is issued without duplicate as it behooves upon the client to
demand for a receipt;"15 that considering that the Tarogs had produced a
photocopy of the receipt he had issued for the ₱30,000.00 in connection
with their appeal, it followed that a similar receipt for attorney’s fees had
been made at the time when the case had been about to be filed in the
RTC; that the testimonies of Erlinda and Vidal were inconsistent with
Arnulfo’s affidavit; and that he did not receive Arnulfo’s demand letter,
which was received by one Gemma Agnote (the name printed on the
registry receipt), whom he did not at all know.
Acting on Atty. Ricafort’s motion for reconsideration, the IBP Board of
Governors downgraded the penalty from disbarment to indefinite
suspension,16 thus:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED the Recommendation of the Board of Governors First
Division of 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, the Motion for
Reconsideration is hereby DENIED with modification of Resolution No.
XVII-2006-509 of the Board of Governors dated 18 November 2006, that
in lieu of the Disbarment of Atty. Romulo Ricafort, he is INDEFINITELY
SUSPENDED from the practice of law and Ordered to return the amount
of ₱65,000 and ₱15,000 to complainant.
Atty. Ricafort filed a second motion for reconsideration, 17 assailing the
resolution of the IBP Board of Governors for violating Section 12, Rule
139-B of the Rules of Court requiring the decision of the IBP Board of
Governors to be in writing and to clearly and distinctly state the facts and
reasons on which the decision was based.
Hence, the administrative case is now before the Court for resolution.
Ruling
We affirm the findings of the Commissioner Reyes, because they were
supported by substantial evidence. However, we impose the penalty of
disbarment instead of the recommended penalty of indefinite suspension,
considering that Atty. Ricafort committed a very serious offense that was
110
aggravated by his having been previously administratively sanctioned for
a similar offense on the occasion of which he was warned against
committing a similar offense.
A.
Version of the complainants was more credible than version of Atty.
Ricafort
Atty. Ricafort admitted receiving the ₱65,000.00 from the Tarogs. Even
so, we have two versions about the transaction. On the one hand, the
Tarogs insisted that the amount was to be consigned in court for
purposes of their civil case; on the other hand, Atty. Ricafort claimed that
the amount was for his fees under a "package deal" arrangement.
Commissioner Reyes considered the Tarogs’ version more credible.
We hold that Commissioner Reyes’ appreciation of the facts was correct
and in accord with human experience.
Firstly, it is easier to believe that Atty. Ricafort persuaded the Tarogs on
the need for that amount to be deposited in court for purposes of their
civil case. Being non-lawyers, they had no idea about the requirement for
them to consign any amount in court, due to the substantive and
procedural implications of such requirement being ordinarily known only
to lawyers. Their ready and full reliance on Atty. Ricafort’s
representations about the requirement to consign that amount in court
was entirely understandable in view of their awareness of Atty. Ricafort’s
standing in the legal community of the place. Besides, as Commissioner
Reyes observed, it was not far-fetched for the Tarogs to believe that an
amount close in value to their original obligation was necessary to be
deposited in court to boost their chances of recovering their property.
Secondly, Atty. Ricafort’s denial of receipt of Arnulfo’s demand letter was
incredible. He already initially admitted receiving the letter through a
househelp.18 His denial came only subsequently and for the first time
through his motion for reconsideration dated December 30, 2006, 19 in
which he completely turned about to declare that the Gemma Agnote who
had received the letter was unknown to him. 20 Expectedly, Commissioner
Reyes disregarded his denial, because not only was the denial an
apparently belated afterthought, it was even contradicted by his earlier
admission of receipt. In any event, the fact that Gemma Agnote was even
the househelp whom Atty. Ricafort had adverted to becomes very
plausible under the established circumstances.
Thirdly, Atty. Ricafort explained that he had no copies of the receipts for
the ₱65,000.00 and ₱15,000.00 issued to the Tarogs because "the
practice of lawyers in most instances is that receipt is issued without
duplicate as it behooves upon the client to demand for a receipt." 21 But
such explanation does not persuade us. Ethical and practical
considerations made it both natural and imperative for him to issue
receipts, even if not demanded, and to keep copies of the receipts for his
own records. He was all too aware that he was accountable for the
moneys entrusted to him by the clients, and that his only means of
ensuring accountability was by issuing and keeping receipts. Rule 16.01
of the Code of Professional Responsibility expressly enjoins such
accountability, viz:
Rule 16.01 - A lawyer shall account for all money or property collected or
received for or from the client.
Definitely, Atty. Ricafort had a highly fiduciary and confidential relation
with the Tarogs. As such, he was burdened with the legal duty to
promptly account for all the funds received from or held by him for them.22
And, fourthly, to buttress his denial that the ₱65,000.00 was not intended
for deposit in court, Atty. Ricafort insisted that Arnulfo did not object to the
omission from the complaint in the civil action of any mention of
consignation. However, the complaint that he himself had written and
filed for the Tarogs contradicted his insistence, specifically in its
paragraph 16, which averred the plaintiffs’ (i.e., Tarogs) readiness and
willingness to deposit the amount of ₱69,345.00 (inclusive of the
redemption price and interest) in court, thus:
16. And to show willingness and sincerity of the plaintiffs, they are ready
and willing to deposit the amount of ₱69,345.00 as redemption price plus
reasonable accrued interests, if there are any; 23
Nor could the Tarogs have conjured or invented the need for
consignation. The consignation was a notion that could have emanated
only from him as their lawyer. In fact, Erlinda recalled while testifying
before the IBP Commission on Bar Discipline that they had brought to
their meeting with Atty. Ricafort only ₱60,000.00 for the consignation, but
that Atty. Ricafort had to instruct them to raise the amount. The excerpt of
her pertinent testimony follows:
Comm. Reyes: Madam Witness, in this affidavit you stated that your late
husband and Mr. Vidal Miralles went to the office of Atty. Ricafort to
111
advise the latter that we already had the sum of ₱65,000.00 in the form of
check, how did you come to know this fact?
Witness: Paano po ba sabi nya na magdeposit ng ₱65,000.00 tapos
may ₱60,000.00 kami sabi niya dagdagan niyo ng konti.
Comm. Reyes: Kinausap ba niya kayo?
Witness: Nandoon po ako.
Comm. Reyes: Where you present when the check was given?
Witness: Yes.
Comm. Reyes: So, alam niyo, nakita niyo na binigay yong ₱65,000.00 na
tseke?
Witness: Opo.
Comm. Reyes: Alam niyo ba kung ano ang nangyari doon sa tseke na
idiniposit?
Witness: Noong una sinabi niya sa amin na ididiposit niya sa court.
Comm. Reyes: Nalaman niyo ba na hindi naman pala idiniposit sa court?
Witness: Opo.
Comm. Reyes: Kailan niyo nalaman?
Witness: Nagsabi siya tapos sinabi pa niya na yong interest sa bank ay
ibinigay niya sa amin ang sabi naming salamat. 24
B.
Atty. Ricafort’s acts and actuations constituted serious breach of
his fiduciary duties as an attorney
The Code of Professional Responsibility demands the utmost degree of
fidelity and good faith in dealing with the moneys entrusted to lawyers
because of their fiduciary relationship.25 In particular, Rule 16.01 of the
Code of Professional Responsibility states:
Rule 16.01 - A lawyer shall account for all money or property collected or
received for or from the client.
Undoubtedly, Atty. Ricafort was required to hold in trust any money and
property of his clients that came into his possession, 26 and he needed to
be always mindful of the trust and confidence his clients reposed in
him.27 Thus, having obtained the funds from the Tarogs in the course of
his professional employment, he had the obligation to deliver such funds
to his clients (a) when they became due, or (b) upon demand. 28 1avvphi1
Furthermore, Rule 16.02 of the Code of Professional Responsibility,
imposes on an attorney the positive obligation to keep all funds of his
client separate and apart from his own and from those of others kept by
him, to wit:
Rule 16.02 - A lawyer shall keep the funds of each client separate and
apart from his own and those of others kept by him.
Atty. Ricafort’s act of obtaining ₱65,000.00 and ₱15,000.00 from the
Tarogs under the respective pretexts that the amount would be deposited
in court and that he would prepare and file the memorandum for the
Tarogs erected a responsibility to account for and to use the amounts in
accordance with the particular purposes intended. For him to deposit the
amount of ₱65,000.00 in his personal account without the consent of the
Tarogs and not return it upon demand, and for him to fail to file the
memorandum and yet not return the amount of ₱15,000.00 upon demand
constituted a serious breach of his fiduciary duties as their attorney. He
reneged on his duty to render an accounting to his clients showing that
he had spent the amounts for the particular purposes intended. 29 He was
thereby presumed to have misappropriated the moneys for his own use
to the prejudice of his clients and in violation of the clients’ trust reposed
in him.30 He could not escape liability, for upon failing to use the moneys
for the purposes intended, he should have immediately returned the
moneys to his clients.31
Atty. Ricafort’s plain abuse of the confidence reposed in him by his clients
rendered him liable for violation of Canon 16,32 particularly Rule 16.01,
supra, and Canon 17,33 all of the Code of Professional Responsibility. His
acts and actuations constituted a gross violation of general morality and
of professional ethics that impaired public confidence in the legal
profession and deserved punishment.34
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Without hesitation, therefore, we consider Atty. Ricafort’s acts and
conduct as gross misconduct, a serious charge under Rule 140 of the
Rules of Court, to wit:
Section 8. Serious charges. – Serious charges include:
xxx
3. Gross misconduct constituting violations of the Code of Judicial
Conduct;
xxx
That this offense was not the first charged and decided against Atty.
Ricafort aggravated his liability. In Nuñez v. Ricafort,35 decided in 2002,
the Court found him to have violated Rules 1.0136 of Canon 1 and Rule
12.0337 and Rule 12.0438 of Canon 12 of the Code of Professional
Responsibility in relation to his failure to turn over the proceeds of the
sale of realty to the complainant (who had authorized him to sell the
realty in her behalf). His failure to turn over the proceeds compelled the
complainant to commence in the RTC a civil action to recover the
proceeds against him and his wife. The
Court meted on him the penalty of indefinite suspension, and warned him
against the commission of similar acts, stating:
We concur with the findings of the Investigating Commissioner, as
adopted and approved by the Board of Governors of the IBP, that
respondent Atty. Romulo Ricafort is guilty of grave misconduct in his
dealings with complainant. Indeed, the record shows respondent’s grave
misconduct and notorious dishonesty.
There is no need to stretch one’s imagination to arrive at an inevitable
conclusion that respondent gravely abused the confidence that
complainant reposed in him and committed dishonesty when he did not
turn over the proceeds of the sale of her property. Worse, with palpable
bad faith, he compelled the complainant to go to court for the recovery of
the proceeds of the sale and, in the process, to spend money, time and
energy therefor. Then, despite his deliberate failure to answer the
complaint resulting in his having been declared in default, he appealed
from the judgment to the Court of Appeals. Again, bad faith attended
such a step because he did not pay the docket fee despite notice.
Needless to state, respondent wanted to prolong the travails and agony
of the complainant and to enjoy the fruits of what rightfully belongs to the
latter. Unsatisfied with what he had already unjustly and unlawfully done
to complainant, respondent issued checks to satisfy the alias writ of
execution. But, remaining unrepentant of what he had done and in
continued pursuit of a clearly malicious plan not to pay complainant of
what had been validly and lawfully adjudged by the court against him,
respondent closed the account against which the checks were drawn.
There was deceit in this. Respondent never had the intention of paying
his obligation as proved by the fact that despite the criminal cases for
violation of B.P. Blg. 22, he did not pay the obligation.
All the foregoing constituted grave and gross misconduct in blatant
violation of Rule 1.01 of Canon 1 of the Code of Professional
Responsibility which provides:
A lawyer shall not engage in unlawful, dishonest and immoral or deceitful
conduct.
Respondent’s claim of good faith in closing his account because he
thought complainant has already encashed all checks is preposterous.
The account was closed on or before 26 February 1996. He knew that
there were still other checks due on 29 February 1996 and 15 March
1996 which could not be encashed before their maturity dates.
By violating Rule 1.01 of Canon 1 of the Code of Professional
Responsibility, respondent diminished public confidence in the law and
the lawyers (Busiños v. Ricafort, 283 SCRA 407 [1997]; Ducat v. Villalon,
337 SCRA 622 [2000]). Instead of promoting such confidence and
respect, he miserably failed to live up to the standards of the legal
profession (Gonato v. Adaza, 328 SCRA 694 [2000]; Ducat v.
Villalon, supra).
Respondent’s act of issuing bad checks in satisfaction of the alias writ of
execution for money judgment rendered by the trial court was a clear
attempt to defeat the ends of justice. His failure to make good the checks
despite demands and the criminal cases for violation of B.P. Blg. 22
showed his continued defiance of judicial processes, which he, as an
officer of the court, was under continuing duty to uphold. 39
Bearing in mind his administrative record, and considering that the
penalty for violation of Canon 16 ranges from suspension for six
months,40 to suspension for one year,41 to suspension for two
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years,42 depending on the amount involved and the severity of the
lawyer’s misconduct, we rule that disbarment is the commensurate
punishment for Atty. Ricafort, who has shown no reformation in his
handling of trust funds for his clients.
WHEREFORE, we find and declare Atty. Romulo L. Ricafort guilty of a
violation of Canon 16, Rule 16.01 and Canon 17 of the Code of
Professional Responsibility and, accordingly, disbar him. The Bar
Confidant is directed to strike out his name from the Roll of Attorneys.
Atty. Ricafort is ordered to return to Erlinda R. Tarog the sums of
₱65,000.00 and ₱15,000.00, plus interest of six percent per annum
reckoned from the demand made on December 3, 2002, within twenty
days from notice.
This decision is effective immediately.
Let a copy of this decision be furnished to the Office of the Court
Administrator for circulation to all courts, and to the Integrated Bar of the
Philippines, for its reference.
SO ORDERED.
SECOND DIVISION
A.M. No. P-06-2177 June 27, 2006
(Formerly A.M. No. 06-4-268-RTC)
RE: REPORT ON THE FINANCIAL AUDIT CONDUCTED ON THE
BOOKS OF ACCOUNTS OF ATTY. RAQUEL G. KHO, CLERK OF
COURT IV, REGIONAL TRIAL COURT, ORAS, EASTERN SAMAR .
RESOLUTION
CORONA, J.:
This administrative case is a result of the audit conducted by the Office of
the Court Administrator (OCA) of the books of accounts of Atty. Raquel
G. Kho, former clerk of court of the Regional Trial Court, Branch 5, Oras,
Eastern Samar. The audit covered the period March 1985 to October 31,
2005.
The OCA, in its memorandum dated April 18, 2006, had the following
findings: (1) there was a shortage of P545.00 in remittances to the
General Fund; (2) a cash shortage of P24.00 in the Sheriff’s General
Fund; and (3) Atty. Kho did not deposit on time in the authorized
depository bank the collections for the Fiduciary Fund (P60,000) and
Special Allowance for the Judiciary Fund (P5,000). It also noted that Atty.
Kho had already restituted the P545.00 and P24.00 cash shortages.
Regarding the delayed remittance of the amount of P60,000 representing
the amount of a confiscated cash bond, Kho explained that the Land
Bank of the Philippines (the authorized depository bank) had no branch in
their locality. The nearest Land Bank branch was approximately 95
kilometers away so it was his practice to keep his collections in the
court’s safety vault.
On the other hand, the amount of P5,000 was collected as filing fee for
an election protest. According to Kho, this was collected under Rule 40 of
the Commission on Elections (COMELEC) Rules of Procedure. In
defense, he presented a letter addressed to Senior Deputy Court
Administrator Zenaida N. Elepaño inquiring where to remit said amount.
The OCA, through Deputy Court Administrator Jose P. Perez, responded
that pending official instructions on how to manage the money collected
under Rule 40 of the COMELEC Rules, it was to be treated as trust
deposits and temporarily deposited in the Fiduciary Fund. 1 However, Kho
failed to do this.
Consequently, the audit team advised him to deposit the P5,000 in the
Special Allowance for the Judiciary Fund as provided under Sec. 21 (g) of
the amended Administrative Circular No. 35-2004.2 He was also advised
to deposit the confiscated P60,000 cash bond in the Judicial
Development Fund account. He complied with both directives on
November 15, 2005.
On January 26, 2006, the OCA received a letter-complaint with the
information that Kho, along with his alleged common-law-wife,
stenographer Riza Amor L. Libanan, was engaged in lending out to court
employees money in his possession as clerk of court, personally deriving
profit from the interest earned.
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The OCA found Kho liable for violating OCA Circular No. 8A-933 dated
April 21, 1993 when he kept the funds in a safety vault for more than a
year. All clerks of lower courts are supposed to deposit all collections
from bail bonds, rental deposits and other fiduciary collections with the
Land Bank upon receipt thereof. Thus, it recommended that (1) the audit
report be docketed as a regular administrative complaint against Kho and
(2) a fine in the amount of P10,000 be imposed on him.
We agree with the OCA’s recommendations.
Public office is a public trust.4 Those charged with the dispensation of
justice, from the justices and judges to the lowliest clerks, should be
circumscribed with the heavy burden of responsibility. 5 Not only must
their conduct at all times be characterized by propriety and decorum but,
above all else, it must be beyond suspicion. 6
A clerk of court, aside from being the custodian of the court’s funds,
revenues, property and premises, is also entrusted with the primary
responsibility of correctly and effectively implementing regulations
regarding fiduciary funds.7 Safekeeping of funds and collections is
essential to an orderly administration of justice and no protestation of
good faith can override the mandatory nature of the circulars designed to
promote full accountability for government funds. 8 Clerks of court have
always been reminded of their duty to immediately deposit the various
funds received by them to the authorized government depositories for
they are not supposed to keep funds in their custody. 9
Kho failed to make a timely turn-over of cash deposited with him. This
was inexcusable because he could have purchased postal money orders
from the local post office payable to the chief accountant, Accounting
Division, FMO-OCA. The money could have earned interest had he not
kept them in the vault for over a year.10 As found by the OCA, although
Kho had restituted all his cash accountabilities, he was nevertheless
liable for failing to immediately deposit the collections for the judiciary
funds.
The failure to remit the funds in due time constitutes gross dishonesty
and gross misconduct. It diminishes the faith of the people in the
Judiciary.11 Dishonesty, being in the nature of a grave offense, carries the
extreme penalty of dismissal from the service even if committed for the
first time. However, Kho showed remorse by immediately restituting the
cash shortages and complying with the directives of the audit team. And
considering that this is his first offense, we find that the penalty
of P10,000 fine is sufficient.
We note that Kho has already transferred to the Department of Justice.
However, it neither renders this matter moot nor frees him from liability.
Moreover, his misconduct reflects on his fitness as a member of the bar.
His malfeasance prima facie contravenes Canon 1,12 Rule 1.0113 of the
Code of Professional Responsibility. Hence, he should explain why no
further disciplinary sanction should be imposed on him.
WHEREFORE, Atty. Raquel G. Kho is hereby found GUILTY of gross
misconduct for his failure to make timely remittance of judiciary funds in
his custody. He is ordered to pay a FINE of P10,000 within ten (10) days
from receipt of this resolution.
Atty. Kho is further ordered to SHOW CAUSE within the same period why
he should not be disciplined for such misconduct as a lawyer and as an
officer of the Court.
SO ORDERED.
FIRST DIVISION
A.M. No. P-06-2177 April 19, 2007
(Formerly A.M. No. 06-4-268-RTC)
RE: REPORT ON THE FINANCIAL AUDIT CONDUCTED ON THE
BOOKS OF ACCOUNTS OF ATTY. RAQUEL G. KHO, CLERK OF
COURT IV, REGIONAL TRIAL COURT, ORAS, EASTERN SAMAR
RESOLUTION
CORONA, J.:
In our resolution dated June 27, 2006, we found Atty. Raquel G. Kho,
former clerk of court of the Regional Trial Court, Branch 5, Oras, Eastern
Samar, guilty of gross misconduct for his failure to make a timely
remittance of judiciary funds in his custody as required by OCA Circular
No. 8A-93.1 We ordered him to pay a fine of ₱10,000 for his
115
transgression. The matter did not end there, however. Because his
malfeasance prima facie contravened Canon 1, Rule 1.012 of the Code of
Professional Responsibility, we ordered him to show cause why he
should not be disciplined as a lawyer and as an officer of the court. Atty.
Kho submitted his explanation in compliance with our directive. We shall
now resolve this pending matter and bring to a close this regrettable
chapter in his career as a government lawyer.
In his explanation, Atty. Kho admitted that his failure to make a timely
remittance of the cash deposited with him was inexcusable. He
maintained, however, that he kept the money in the court’s safety vault
and never once used it for his own benefit.
Atty. Kho’s apparent good faith and his ready admission of the infraction,
although certainly mitigating, cannot negate the fact that his failure to
remit ₱65,000 in judiciary funds for over a year was contrary to the
mandatory provisions of OCA Circular 8A-93. That omission was a
breach of his oath to obey the laws as well as the legal orders of the duly
constituted authorities3 and of his duties under Canon 1, Rule 1.01 of the
Code of Professional Responsibility:
omission within the terms of Rule 1.01 which specifically prohibits lawyers
from engaging in unlawful conduct.
Atty. Kho’s conduct was not only far from exemplary, it was unlawful as
well. For this, he must be called to account. However, his candid and
repentant admission of his error, his lack of intent to gain and the fact that
this is his first offense should temper his culpability considerably. Under
the circumstances, a fine of ₱5,000 should suffice.
WHEREFORE, Atty. Raquel G. Kho is hereby found GUILTY of unlawful
conduct in violation of the Attorney’s Oath, Section 20(a), Rule 138 of the
Rules of Court, and Canon 1, Rule 1.01 of the Code of Professional
Responsibility. He is ordered to pay a FINE of ₱5,000 within ten days
from receipt of this resolution.
The Financial Management Office, Office of the Court Administrator, is
hereby DIRECTED to deduct from Atty. Kho’s accrued leave credits as a
former clerk of court of the Regional Trial Court, Branch 5, Oras, Eastern
Samar the fines imposed in this resolution and in the resolution dated
June 27, 2006.

CANON 1 — A lawyer shall uphold the constitution, obey the laws of the SO ORDERED.
land and promote respect for law and for legal processes.

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

deceitful conduct. EN BANC

It is no accident that these are the first edicts laid down in the Code of A.C. No. 4904 August 12, 2004
Professional Responsibility for these are a lawyer’s foremost duties.
Lawyers should always keep in mind that, although upholding the
ANA A. CHUA and MARCELINA HSIA, complainants,
Constitution and obeying the law is an obligation imposed on every
vs.
citizen, a lawyer’s responsibilities under Canon 1 mean more than just
ATTY. SIMEON M. MESINA, JR., respondent.
staying out of trouble with the law. As servants of the law and officers of
the court, lawyers are required to be at the forefront of observing and
maintaining the rule of law. They are expected to make themselves
exemplars worthy of emulation.4 This, in fact, is what a lawyer’s obligation
to promote respect for law and legal processes entails.
DECISION
The least a lawyer can do in compliance with Canon 1 is to refrain from
engaging in unlawful conduct.5 By definition, any act or omission contrary
to law is unlawful.6 It does not necessarily imply the element of criminality
although it is broad enough to include it. 7 Thus, the presence of evil intent
on the part of the lawyer is not essential in order to bring his act or PER CURIAM:

116
By a verified complaint1 received by the Office of the Bar Confidant on
May 5, 1998,2 Ana Alvaran Chua and Marcelina Hsia administratively
charged Atty. Simeon M. Mesina, Jr., for breach of professional ethics,
gross professional misconduct, and culpable malpractice.
As related by complainants, the following facts gave rise to the filing of
the complaint.
Respondent was, for years, Ana Alvaran Chua and her now deceased
husband Chua Yap An’s legal counsel and adviser upon whom they
reposed trust and confidence. They were in fact lessees of a building
situated at Burgos Street, Cabanatuan City (Burgos property) owned by
respondent’s family, and another property containing an area of 854 sq.
m., situated at Melencio Street, Cabanatuan City (Melencio property),
also owned by respondent’s family whereon they (spouses Chua)
constructed their house. These two properties were mortgaged by the
registered owner, respondent’s mother Felicisima Melencio vda. de
Mesina (Mrs. Mesina), in favor of the Planters Development Bank to
secure a loan she obtained.
As Mrs. Mesina failed to meet her obligation to the bank, respondent
convinced complainant Ana Chua and her husband to help Mrs. Mesina
by way of settling her obligation in consideration for which the Melencio
property would be sold to them at P850.00/sq. m.
Accommodating respondent’s request, the spouses Chua and their
business partner, herein co-complainant Marcelina Hsia, settled Mrs.
Mesina’s bank obligation in the amount of P983,125.40.
A Deed of Absolute Sale dated January 19, 19853 conveying the Melencio
property for P85,400.00 was thereafter executed by Mrs. Mesina, whose
name appears therein as "Felicisima M. Melencio," in favor of
complainants.
As complainants were later apprised of the amount of capital gains tax
they were to pay, they consulted respondent about it. Respondent thus
suggested to them that another Deed of Absolute Sale should be
executed, antedated to 1979 before the effectivity of the law mandating
the payment of capital gains tax. As suggested by respondent, another
Deed of Absolute Sale antedated February 9, 19794 was executed by Mrs.
Mesina, whose name again appears therein as "Felicisima M. Melencio,"
in favor of complainants wherein the purchase price was also indicated to
be P85,400.00.
After liquidating the advances made by the Chua spouses "in the
redemption of the MESINA properties," Mrs. Mesina was found to have
"an existing balance" due the spouses in the amount of P400,000.00, on
account of which they advised respondent about it. Respondent, by
Affidavit of February 18, 1986, "acknowledged such obligation" to be his
and undertook to settle it within two years.
Complainants were subsequently issued on January 21, 1986 a title over
the Melencio property.
Not long after the execution of the February 9, 1979 Deed of Absolute
Sale or in February 1986, one Juanito Tecson (Tecson) filed an
Affidavit5 dated February 20, 1986 before the Cabanatuan City
Prosecutor’s Office charging respondent’s mother, the spouses Chua,
Marcelina Hsia and the two witnesses to the said Deed of Absolute Sale,
for Falsification of Public Document and violation of the Internal Revenue
Code. In his complaint affidavit, Tecson alleged that he was also a lessee
of the Melencio property and was, along with the Chua spouses,
supposed to purchase it but that contrary to their agreement, the property
was sold only to complainant and her co-complainant, to his exclusion.
Tecson went on to relate that the February 9, 1979 Deed of Absolute
Sale did not reflect the true value of the Melencio property and was
antedated "to evade payment of capital gains tax."
Tecson submitted documents showing that indeed the July 9, 1979 Deed
of Absolute Sale was antedated.
Respondent thereupon hatched a plan to dodge the falsification charge
against Mrs. Mesina et al. He proposed to complainants that they would
simulate a deed of sale of the Melencio property wherein complainants
would resell it to Mrs. Mesina.
Heeding the proposal of respondent, complainants executed a Deed of
Absolute Sale dated April 1, 19866conveying to "Felicisima M. Melencio"
the Melencio property for P85,400.00.
A new title was accordingly issued on April 4, 1986 in the name of
"Felicisima M. Melencio," the owner’s copy of which was entrusted to
complainants.
Tecson subsequently filed before the Cabanatuan City Prosecutor’s
Office an Affidavit of Desistance dated September 5, 19867 alleging that
his filing of the criminal complaint "arose out of mere misunderstanding
117
and difference" with herein complainants and their co-respondents and
he had no sufficient evidence against them.
Some years later or on May 2, 1990, respondent approached
complainants and told them that he would borrow the owner’s copy of
Mrs. Mesina’s title with the undertaking that he would, in four months, let
Mrs. Mesina execute a deed of sale over the Melencio property in
complainants’ favor. In fact, respondent gave complainants a written
undertaking8 dated May 2, 1990 reading:
Received the owner’s duplicate copy of TCT No. 4383 issued by
the Register of Deeds, Cabanatuan City registered in the name of
Felicisima Mesina, widow, consisting of about 854 square meters
more or less located at calle Melencio, Cabanatuan City from
Mrs. Ana Chua and Marcelina Hsia.
I promise to and undertake to have the Deed of Sale of the
above-mentioned property in favor of Ana Chua and Marcelina
Hsia to be signed by Mrs. Felicisima Mesina, within four (4)
months from date hereof so that the above-mentioned property
and title maybe transferred in the name of Ana Chua and
Macelina Hsia. (Underscoring supplied)
In the meantime, Mrs. Mesina died "in the early part of 1991."
Despite respondent’s repeated promises "to effect" the transfer of title in
complainants’ name, he failed to do so. Complainants were later informed
that the Melencio property was being offered for sale to the public.
The spouses Chua and complainant Marcelina Hsia thus filed on August
24, 1992 a Complaint9 against respondent and his two siblings before the
Regional Trial Court (RTC) of Nueva Ecija in Cabanatuan City, for
"Declaration of Nullity of Sale and Reconveyance of Real Property."
As of the time of the filing of the present administrative complaint in 1998,
the civil case against the Mesina siblings was still pending.
This Court, by Resolution of July 13, 1998, 10 directed respondent to file
Comment on the complaint within ten days.
By Resolution of December 2, 1998,11 this Court, noting that the copy of
the Resolution of July 13, 1998 requiring respondent to comment on the
complaint sent to him at his office address at S. M. Mesina Law Office, 30
Jupiter St., Paseo de Roxas, Bel-Air Subd., Makati City was returned
unserved with the notation "Moved," considered the Resolution of July
13, 1998 served on respondent by substituted service pursuant to Rule
13, Section 8 of the 1997 Rules of Civil Procedure. Respondent was
accordingly deemed to have waived the filing of the required comment.
By the same Resolution of December 2, 1998, the case was referred to
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation within ninety days.
The IBP, acting on the complaint, issued a notice of hearing on
September 14, 2001,12 copy of which was sent to respondent at his office
address via registered mail, covered by Registry Receipt No. 2605 of the
Meralco Post Office.13 On the scheduled date of hearing, complainants
personally appeared with their counsel. Respondent failed to show up.
Given the length of time that the case remained pending from its filing,
the IBP Commission on Bar Discipline, by Order of October 12,
2001,14 directed complainants to just file their position paper with affidavits
and supporting documents in lieu of actual presentation of witnesses and
to serve a copy thereof to respondent at his last known address.
In compliance with the IBP Order, complainants filed on April 1, 2002
their position paper,15 annexed to which were photocopies of: 1) a May 5,
1993 Certification16 issued by the Metrobank Cabanatuan Branch
certifying that "it issued the demand drafts to the payees enumerated
below, which were debited from the account of Mr. Chua Yap An under
Savings Account No. 760:
D/D No. Payee Amount Date of Issue
214597 Planters Dev. Bank P 805,299.54 12-19-85
214760 Planters Dev. Bank 100,000.00 01-14-86
214761 Atty. Simeon Mesina, Jr. 77,826.10 01-14-86";
2) Affidavit dated February 18, 198617 of respondent acknowledging a
debt of P400,000.00 to complainant Ana Alvaran Chua and promising to
pay interest thereon within 2 years to commence upon the signing thereof
[February 16, 1998] and, in the event no partial or full payment of the
principal is made within 2 years, Ana Alvaran Chua "is under no
obligation to pay any lease rentals over the lot situated in Burgos Avenue,
118
Cabanatuan City where the Oceanic Hardware Bldg. is erected;" 3) Deed
of Absolute Sale dated January 19, 198518 and 4) Deed of Absolute Sale
dated July 9, 1979,19 both executed by "Felicisima M. Melencio" in favor of
complainant; 5) TCT No. T-4811420issued by the Cabanatuan City in the
name of complainants on January 21, 1986; 6) Affidavit of Juanito C.
Tecson21dated January 20, 1986 charging complainants et al. for
Falsification of Public Documents; 7) Deed of Absolute Sale dated April 1,
1986 executed by complainants in favor of Mrs. Mesina; 22 and 8) TCT No.
T-48383issued on April 4, 1986 in the name of "Felicisima M.
Melencio;"23 and 9) Complaint of spouses Chua Yap An and Ana Alvaran
Chua and Marcelina Hsia, for Declaration of Nullity of Deed of Sale and
Reconveyance of Real Property against respondent and his two
siblings.24
A copy of complainant’s position paper was sent on March 18, 2002 to
respondent at his office address by registered mail covered by Registry
Receipt No. 5278.25 There is no showing if respondent received this mail
matter.
The IBP once more scheduled, by notice of December 13, 2002, 26 a
hearing of the administrative case to January 15, 2003, copy of which
notice was sent to respondent at his office address by registered mail
covered by Registry Receipt No. 2953 issued by the Meralco Post
Office.27
On the scheduled hearing on January 15, 2003, the IBP Investigating
Commissioner, by Order of even date,28 noted the presence of
complainants, and the absence of respondent, copy of the notice of
hearing to whom was returned unserved with the notation "RTS-Moved."
The case was thereupon deemed submitted for report and
recommendation.
On June 21, 2003, the IBP passed Resolution No. XV-2003-
34229 adopting and approving the report and recommendation of Atty.
Rebecca Villanueva-Maala, the Investigating Commissioner of the case.
In her March 3, 2003 Report and Recommendation, 30 Investigation
Commissioner Maala observed as follows:
A lawyer should not engage or participate on any unlawful,
dishonest, immoral or deceitful conduct. The moral character he
displayed when he applied for admission at the Bar must be
maintained incessantly. Otherwise, his privilege to practice the
legal profession may be withdrawn from him (Rule 1.01, Code of
Professional Responsibility). On the basis of the uncontroverted
facts and evidence presented, respondent Atty. Simeon M.
Mesina has committed gross misconduct which shows him to be
unfit for the office and unworthy of the privilege which his license
and law confer upon him,
and recommended that respondent be suspended for a period of One (1)
Year.
This Court finds that indeed, respondent is guilty of gross misconduct.
First, by advising complainants to execute another Deed of Absolute Sale
antedated to 1979 to evade payment of capital gains taxes, he violated
his duty to promote respect for law and legal processes, 31 and not to abet
activities aimed at defiance of the law;32 That respondent intended to, as
he did defraud not a private party but the government is aggravating.33
Second, when respondent convinced complainants to execute another
document, a simulated Deed of Absolute Sale wherein they made it
appear that complainants reconveyed the Melencio property to his
mother, he committed dishonesty.34
Third, when on May 2, 1990 respondent inveigled his own clients, the
Chua spouses, into turning over to him the owner’s copy of his mother’s
title upon the misrepresentation that he would, in four months, have a
deed of sale executed by his mother in favor of complainants, he likewise
committed dishonesty.
That the signature of "Felicisima M. Melencio" in the 1985 document 35 and
that in the 1979 document36 are markedly different is in fact is a badge of
falsification of either the 1979 or the 1985 document or even both.
A propos is this Court’s following pronouncement in Nakpil v. Valdez37
As a rule, a lawyer is not barred from dealing with his client
but the business transaction must be characterized with utmost
honesty and good faith. The measure of good faith which an
attorney is required to exercise in his dealings with his client is a
much higher standard that is required in business dealings where
the parties trade at "arms length." Business transactions between
an attorney and his client are disfavored and discouraged by the
policy of the law. Hence, courts carefully watch these transactions
119
 to assure that no advantage is taken by a lawyer over his client.
This rule is founded on public policy for, by virtue of his office, an
attorney is in an easy position to take advantage of the credulity
and ignorance of his client. Thus, no presumption of innocence or
improbability of wrongdoing is considered in an attorney’s
favor.38 (Underscoring supplied)
CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE OF
HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST
AND CONFIDENCE REPOSED IN HIM.
WHEREFORE, respondent ATTY. SIMEON M. MESINA, JR. is, for gross
misconduct, hereby DISBARRED.

Respondent having welched on his promise to cause the reconveyance
of the Melencio property to complainants, consideration of whether he
should be ordered to honor such promise should be taken up in the civil
case filed for the purpose, the issue there being one of ownership while
that in the case at bar is moral fitness. 39
Let copies of this Decision be furnished all courts, the Integrated Bar of
the Philippines, and the Office of the Bar Confidant.
SO ORDERED.

In fine, respondent violated his oath of office and, more specifically, the
following canons of the Code of Professional Responsibility:
EN BANC
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION,
A.M. No. 491 October 6, 1989
OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT
FOR LAW AND LEGAL PROCESSES.
IN THE MATTER OF THE INQUIRY INTO THE 1989 ELECTIONS OF
THE INTEGRATED BAR OF THE PHILIPPINES.
Rule 1.01. - A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.

Rule 1.02. - A lawyer shall not counsel or abet activities aimed at

defiance of the law or at lessening confidence in the legal system. PER CURIAM:

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE In the election of the national officers of the Integrated Bar of the
INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND Philippines (hereafter "IBP") held on June 3, 1989 at the Philippine
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. International Convention Center (or PICC), the following were elected by
the House of Delegates (composed of 120 chapter presidents or their
alternates) and proclaimed as officers:
Rule 7.03. - A lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor shall he, whether in
public or private life, behave in a scandalous manner to the NAME POSITION
discredit of the legal profession. Atty. Violeta Drilon President
Atty. Bella Tiro Executive Vice-President
Atty. Salvador Lao Chairman, House of Delegates
CANON 15. A LAWYER SHALL OBSERVE CANDOR,
Atty. Renato F. Secretary, House of Delegates
FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND
Ronquillo
TRANSACTIONS WITH HIS CLIENTS.
Atty. Teodoro Quicoy Treasurer, House of Delegates
Atty. Oscar Badelles Sergeant at Arms, House of Delegates
Rule 15.07. - A lawyer shall impress upon his client compliance Atty. Justiniano Governor & Vice-President for Northern Luzon
with the laws and the principles of fairness. Cortes
Atty. Ciriaco Atienza Governor & Vice-President for Central Luzon

120
 Atty. Mario Jalandoni Governor & Vice-President for Metro Manila
Atty. Jose Aguilar Governor & Vice-President for Southern Luzon
Grapilon
Atty. Teodoro Almine Governor & Vice-President for Bicolandia
Atty. Porfirio Governor & Vice-President for Eastern Visayas
Siyangco
Atty. Ricardo Teruel Governor & Vice-President for Western
Visayas
Atty. Gladys Tiongco Governor & Vice-President for Eastern
Mindanao
Atty. Simeon Governor & Vice-President for Western
Datumanong Mindanao
The newly-elected officers were set to take the their oath of office on July
4,1989, before the Supreme Court en banc. However,disturbed by the
widespread reports received by some members of the Court from lawyers
who had witnessed or participated in the proceedings and the adverse
comments published in the columns of some newspapers about the
intensive electioneering and overspending by the candidates, led by the
main protagonists for the office of president of the association, namely,
Attorneys Nereo Paculdo, Ramon Nisce, and Violeta C. Drilon, the
alleged use of government planes, and the officious intervention of
certain public officials to influence the voting, all of which were done in
violation of the IBP By-Laws which prohibit such activities. The Supreme
Court en banc, exercising its power of supervision over the Integrated
Bar, resolved to suspend the oath-taking of the IBP officers-elect and to
inquire into the veracity of the reports.
It should be stated at the outset that the election process itself (i.e. the
voting and the canvassing of votes on June 3, 1989) which was
conducted by the "IBP Comelec," headed by Justice Reynato Puno of the
Court of Appeals, was unanimously adjudged by the participants and
observers to be above board. For Justice Puno took it upon himself to
device safeguards to prevent tampering with, and marking of, the ballots.
What the Court viewed with considerable concern was the reported
electioneering and extravagance that characterized the campaign
conducted by the three candidates for president of the IBP.
I. MEDIA ACCOUNT OF THE ELECTION CAMPAIGN.
Emil Jurado, in his column "IBP Group Questions Drilon Election" (Manila
Standard, Sunday, June 17, 1989), Luis Mauricio, in two successive
columns: "The Invertebrated Bar" (Malaya, June 10, 1989) and "The
Disintegrating Bar" (Malaya, June 20, 1989), and Teodoro Locsin Jr. in an
article, entitled "Pam-Pam" (The Philippines Free Press, July 8,1989),
and the editorial, entitled 'Wrong Forum" of the Daily Globe (June 8,
1989), were unanimously critical of the "vote-buying and pressure tactics"
allegedly employed in the campaign by the three principal candidates:
Attys. Violeta C. Drilon, Nereo Paculdo and Ramon Nisce who reportedly
"poured heart, soul, money and influence to win over the 120 IBP
delegates."
Mr. Jurado mentioned the resentment of Atty. Drilon's rivals who felt at a
disadvantage because Atty. Drilon allegedly used PNB helicopters to visit
far-flung IBP chapters on the pretext of distributing Bigay Puso donations,
and she had the added advantage of having regional directors and labor
arbiters of the Department of Labor and Employment (who had been
granted leaves of absence by her husband, the Labor Secretary)
campaigning for her. Jurado's informants alleged that there was rampant
vote-buying by some members of the U.P. Sigma Rho Fraternity
(Secretary Drilon's fraternity), as well as by some lawyers of ACCRA
(Angara, Concepcion, Cruz, Regala and Abello Law Office) where Mrs.
Drilon is employed, and that government positions were promised to
others by the office of the Labor Secretary.
Mr. Mauricio in his column wrote about the same matters and, in addition,
mentioned "talk of personnel of the Department of Labor, especially
conciliators and employers, notably Chinese Filipinos, giving aid and
comfort to her (Atty. Drilon's) candidacy," the billeting of out-of-town
delegates in plush hotels where they were reportedly "wined and dined
continuously, womened and subjected to endless haggling over the price
of their votes x x x" which allegedly "ranged from Pl5,000 to P20,000,
and, on the day of the election, some twelve to twenty votes which were
believed crucial, appreciated to P50,000."
In his second column, Mr. Mauricio mentioned "how a top official of the
judiciary allegedly involved himself in IBP politics on election day by
closeting himself with campaigners as they plotted their election strategy
in a room of the PICC (the Philippine International Convention Center
where the convention/election were held) during a recess x x x."
Mr. Locsin in his column and editorial substantially re-echoed Mauricio's
reports with some embellishments.
II. THE COURT'S DECISION TO INVESTIGATE.
121
Responding to the critical reports, the Court, in its en banc resolution
dated June 15, 1989, directed the outgoing and incoming members of the
IBP Board of Governors, the principal officers and Chairman of the House
of Delegates to appear before it on Tuesday, June 20, 1989, at 2:00
o'clock p.m., and there to inform the Court on the veracity of the
aforementioned reports and to recommend, for the consideration of the
Court, appropriate approaches to the problem of confirming and
strengthening adherence to the fundamental principles of the IBP.
In that resolution the Court "call[ed] to mind that a basic postulate of the
Integrated Bar of the Philippines (IBP), heavily stressed at the time of its
organization and commencement of existence, is that the IBP shall be
non-political in character and that there shall be no lobbying nor
campaigning in the choice of members of the Board of Governors and of
the House of Delegates, and of the IBP officers, national, or regional, or
chapter. The fundamental assumption was that officers, delegates and
governors would be chosen on the basis of professional merit and
willingness and ability to serve."
The resolution went on to say that the "Court is deeply disturbed to note
that in connection with the election of members of the Board of
Governors and of the House of Delegates, there is a widespread belief,
based on reports carried by media and transmitted as well by word of
mouth, that there was extensive and intensive campaigning by
candidates for IBP positions as well as expenditure of considerable sums
of money by candidates, including vote-buying, direct or indirect."
The venerable retired Supreme Court Justice and IBP President
Emeritus, Jose B.L. Reyes, attended the dialogue, upon invitation of the
Court, to give counsel and advice. The meeting between the Court en
banc on the one hand, and the outgoing and in coming IBP officers on
the other, was an informal one. Thereafter, the Court resolved to conduct
a formal inquiry to determine whether the prohibited acts and activities
enumerated in the IBP By-Laws were committed before and during the
1989 elections of IBP's national officers.
The Court en banc formed a committee and designated Senior Associate
Justice Andres R. Narvasa, as Chairman, and Associate Justices
Teodoro R. Padilla, Emilio A. Gancayco, Abraham F. Sarmiento, and
Carolina C. Griño-Aquino, as members, to conduct the inquiry. The Clerk
of Court, Atty. Daniel Martinez, acted as the committee's Recording
Secretary.
A total of forty-nine (49) witnesses appeared and testified in response to
subpoenas issued by the Court to shed light on the conduct of the
elections. The managers of three five-star hotels the Philippine Plaza, the
Hyatt, and the Holiday Inn where the three protagonists (Drilon, Nisce
and Paculdo) allegedly set up their respective headquarters and where
they billeted their supporters were summoned. The officer of the
Philippine National Bank and the Air Transport Office were called to
enlighten the Court on the charge that an IBP presidential candidate and
the members of her slate used PNB planes to ferry them to distant places
in their campaign to win the votes of delegates. The Philippine Airlines
officials were called to testify on the charge that some candidates gave
free air fares to delegates to the convention. Officials of the Labor
Department were also called to enable the Court to ascertain the truth of
the reports that labor officials openly campaigned or worked for the
election of Atty. Drilon.
The newspaper columnists, Messrs. Luis Mauricio, Jesus Bigornia and
Emil Jurado were subpoenaed to determine the nature of their sources of
information relative to the IBP elections. Their stories were based, they
said, on letters, phone calls and personal interviews with persons who
claimed to have knowledge of the facts, but whom they, invoking the
Press Freedom Law, refused to identify.
The Committee has since submitted its Report after receiving, and
analyzing and assessing evidence given by such persons as were
perceived to have direct and personal knowledge of the relevant facts;
and the Court, after deliberating thereon, has Resolved to accept and
adopt the same.
III. PROHIBITED ACTS AND PRACTICES UNDER IBP BY-LAWS.
Article I, Section 4 of the IBP By-Laws emphasizes the "strictly non-
political" character of the Integrated Bar of the Philippines, thus:
"SEC. 4. Non-political Bar. — The Integrated Bar is strictly non-
political, and every activity tending to impair this basic feature is
strictly prohibited and shall be penalized accordingly. No lawyer
holding an elective, judicial, quasi-judicial, or prosecutory office in
the Government or any political subdivision or instrumentality
thereof shall be eligible for election or appointment to any position
in the Integrated Bar or any Chapter thereof. A Delegate,
Governor, officer or employee of the Integrated Bar, or an officer
or employee of any Chapter thereof shall be considered ipso
122
 facto resigned from his position as of the moment he files his
certificate of candidacy for any elective public office or accepts
appointment to any judicial, quasi-judicial, or prosecutory office in
the Government or any political subdivision or instrumentality
thereof. "'
Section 14 of the same By-Laws enumerates the prohibited acts
relative to IBP elections:
SEC. 14. Prohibited acts and practices relative to elections. —
The following acts and practices relative to election are
prohibited, whether committed by a candidate for any elective
office in the Integrated Bar or by any other member, directly or
indirectly, in any form or manner, by himself or through another
person:
(a) Distribution, except on election day, of election campaign
material;
(b) Distribution, on election day, of election campaign material
other than a statement of the biodata of a candidate on not more
than one page of a legal-size sheet of paper; or causing
distribution of such statement to be done by persons other than
those authorized by the officer presiding at the elections;
(c) Campaigning for or against any candidate, while holding an
elective, judicial, quasi-judicial or prosecutory office in the
Government or any political subdivision, agency or instrumentality
thereof;
(d) Formation of tickets, single slates, or combinations of
candidates, as well as the advertisement thereof;
(e) For the purpose of inducing or influencing a member to
withhold his vote, or to vote for or against a candidate, (1)
payment of the dues or other indebtedness of any member; (2)
giving of food, drink, entertainment, transportation or any article of
value, or any similar consideration to any person; or (3) making a
promise or causing an expenditure to be made, offered or
promised to any person."
Section 12(d) of the By-Laws prescribes sanctions for violations of the
above rules:
(d) Any violation of the rules governing elections or
commission of any of the prohibited acts and practices
defined in Section 14 prohibited Acts and Practices
relative to elections) of the by-laws of the Integrated Bar
shall be a ground for the disqualification of a candidate or
his removal from office if elected, without prejudice to the
imposition of sanctions upon any erring member pursuant
to the By-laws of the Integrated Bar.
At the formal investigation which was conducted by the investigating
committee, the following violations were established:
(1) Prohibited campaigning and solicitation of votes by the candidates for
president, executive vice-president, the officers of candidate the House of
Delegates and Board of Governors.
The three candidates for IBP President Drilon, Nisce and Paculdo began
travelling around the country to solicit the votes of delegates as early as
April 1989. Upon the invitation of IBP President, Leon Garcia, Jr. (t.s.n.,
July 13,1989, p. 4), they attended the Bench and Bar dialogues held in
Cotabato in April 1989 (t.s.n., June 29, 1989, p. 123), in Tagaytay City,
Pampanga, and in Baguio City (during the conference of chapter
presidents of Northern Luzon (t.s.n., July 3,1989, p. 113; t.s.n., July 10, p.
41; t.s.n., July 13, p. 47) where they announced their candidacies and
met the chapter presidents.
Atty. Nisce admitted that he went around the country seeking the help of
IBP chapter officers, soliciting their votes, and securing their written
endorsements. He personally hand-carried nomination forms and
requested the chapter presidents and delegates to fill up and sign the
forms to formalize their commitment to his nomination for IBP President.
He started campaigning and distributing the nomination forms in March
1989 after the chapter elections which determined the membership of the
House of Delegates composed of the 120 chapter presidents (t.s.n., June
29, 1989, pp. 82-86). He obtained forty (40) commitments. He submitted
photocopies of his nomination forms which read:
"Nomination Form
I Join in Nominating
RAMON M. NISCE
as
National President of the
123
 Integrated Bar of the Philippines
______________ _______________
Chapter Signature"
Among those who signed the nomination forms were: Onofre P. Tejada,
Candido P. Balbin, Jr., Conizado V. Posadas, Quirico L. Quirico Ernesto
S. Salun-at, Gloria C. Agunos, Oscar B. Bernardo, Feliciano F. Wycoco,
Amor L. Ibarra, Jose M. Atienza, Jose N. Contreras, Romeo T. Mendoza,
Leo C. Medialdea, Jr., Paulino G. Clarin, Julius Z. Neil, Roem J. Arbolado
Democrito M. Perez, Abelardo Fermin, Diosdado B. Villarin, Jr., Daniel C.
Macaraeg, Confesor R. Sansano Dionisio E. Bala, Jr., Emesto A.
Amores, Romeo V. Pefianco, Augurio C. Pamintuan, Atlee T. Viray,
Ceferino C. Cabanas, Jose S. Buban, Diosdado Z. Reloj, Jr., Cesar C.
Viola, Oscar C. Fernandez, Ricardo B. Teruel Rodrigo R. Flores, Sixto
Marella, Jr., Arsenio C. Villalon, Renato F. Ronquillo, Antonio G. Nalapo
Romualdo A. Din Jr., Jose P. Icaonapo Jr., and Manuel S. Person.
Atty. Nisce admitted that he reserved rooms at the Hyatt Hotel based on
the commitments he had obtained (t.s.n., June 29, 1989, pp. 82-85).
Unfortunately, despite those formal commitments, he obtained only 14
votes in the election (t.s.n., June 29, 1 989, p. 86). The reason, he said, is
that. some of those who had committed their votes to him were
"manipulated, intimidated, pressured, or remunerated" (t.s.n., June
29,1989, pp. 8695; Exhibit "M-4-Nisce," t.s.n., July 4, 1989, pp. 100-1
04).
(2) Use of PNB plane in the campaign.
The records of the Philippine National Bank (Exhibit C-1-Crudo and
Exhibit C-2-Crudo) show that Secretary Fulgencio S. Factoran, Jr. of the
Department of Environment & Natural Resources (DENR) borrowed a
plane from the Philippine National Bank for his Bicol CORD (Cabinet
Officers for Regional Development) Assistant, Undersecretary Antonio
Tria. The plane manifest (Exh. C-2-Crudo) listed Atty. Violeta Drilon,
Arturo Tusi (Tiu), Assistant Secretary for Environment and Natural
Resources (DENR) Tony Tria, Atty. Gladys Tiongco, and Amy Wong.
Except for Tony Tria, the rest of the passengers were IBP candidates.
Atty. Drilon admitted that she "hitched" a ride on a PNB plane. She said
that she was informed by Atty. Tiu about the availability of a PNB plane
(t.s.n., July 3,1989, pp. 116-118).
Atty. Tiu, who ran for the position of IBP executive vice-president in the
Drilon ticket, testified that sometime in May 1989 he failed to obtain
booking from the Philippine Airlines for the projected trip of his group to
Bicol. He went to the DENR allegedly to follow up some papers for a
client. While at the DENR, he learned that Assistant Secretary Tria was
going on an official business in Bicol for Secretary Fulgencio Factoran
and that he would be taking a PNB plane. As Assistant Secretary Tria is
his fraternity brother, he asked if he, together with the Drilon group, could
hitch a ride on the plane to Bicol. His request was granted. Their purpose
in going to Bicol was to assess their chances in the IBP elections. The
Drilon company talked with the IBP chapter presidents in Daet, Naga,
and Legaspi, and asked for their support (t.s.n., July 10, 1989, pp. 549).
Assistant Secretary Antonio S. Tria confirmed the use of a PNB plane by
Atty. Drilon and her group. He recalled that on May 23,1989, DENR
Secretary Factoran instructed him to go to Bicol to monitor certain
regional development projects there and to survey the effect of the
typhoon that hit the region in the middle of May. On the same day, Atty.
Tiu, a fraternity brother (meaning that Tiu belongs to the Sigma Rho
fraternity) went to the DENR office and requested the Secretary
(Factoran) if he (Tiu) could be allowed to hitch a ride on the plane.
Assistant Secretary Tria, together with the Drilon group which included
Attorneys Drilon, Grapilon, Amy Wong, Gladys Tiongco, and Tiu, took off
at the Domestic Airport bound for Naga, Daet and Legaspi. In Legaspi the
Drilon group had lunch with Atty. Vicente Real, Jr., an IBP chapter
president (t.s.n., July 10, 1989, pp. 54-69).
(3) Formation of tickets and single slates.
The three candidates, Paculdo, Nisce and Drilon, admitted having formed
their own slates for the election of IBP national officers on June 3, 1989.
Atty. Paculdo's slate consisted of — himself for President; Bella D. Tiro,
for Executive Vice-President; and for Governors: Justiniano P. Cortez
(Northern Luzon), Oscar C. Fernandez (Central Luzon), Mario C.V.
Jalandoni (Greater Manila), Petronilo A. de la Cruz (Southern Luzon),
Teodorico C. Almine, Jr. (Bicolandia), Ricardo B. Teruel (Western
Visayas), Porfirio P. Siyangco (Eastern Visayas), Jesus S. Anonat
(Western Mindanao), Guerrero A. Adaza, Jr. (Eastern Mindanao) (Exhibit
M-Nisce).
The Drilon ticket consisted of. Violeta C. Drilon for President, Arturo Tiu
for Executive Vice President, Salvador Lao for Chairman of the House of
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Delegates, and, for Governors: Basil Rupisan (Northern 'Luzon), Acong
Atienza (Central Luzon), Amy Wong (Metro Manila), Jose Grapilon
(Southern Tagalog), Teodoro Almine (Bicolandia), Baldomero Estenzo
(Eastern Visayas), Joelito Barrera (Western Visayas), Gladys Tiongco
(Eastern Mindanao), Simeon Datumanong (Western Mindanao) (Exhibit
M-1-Nisce).
Atty. Ramon N. Nisce's line-up listed himself and Confessor B. Sansano
Benjamin B. Bernardino, Antonio L. Nalapo Renato F. Ronquillo, Gloria
C. Agunos, Mario Valderrama, Candido P. Balbin Jr., Oscar C.
Fernandez, Cesar G. Viola, Leo C. Medialdea, Jr., Vicente P. Tordilla, Jr.,
Jose S. Buban, Joel A. Llosa, Jesus T. Albacite and Oscar V. Badelles.
(4) Giving free transportation to out-of-town delegates and alternates.
Atty. Nisce admitted having bought plane tickets for some delegates to
the convention. He mentioned Oscar Badelles to whom he gave four
round-trip tickets (worth about P10,000) from Iligan City to Manila and
back. Badelles was a voting delegate. Nisce, however, failed to get a
written commitment from him because Atty. Medialdea assured him
(Nisce) "sigurado na 'yan, h'wag mo nang papirmahin." Badelles won as
sergeant-at-arms, not in Nisce's ticket, but in that of Drilon.
Badelles admitted that Nisce sent him three airplane tickets, but he
Badelles said that he did not use them, because if he did, he would be
committed to Nisce, and he Badelles did not want to be committed (t.s.n.,
July 4,1989, pp. 77-79, 95-96).
Nisce also sent a plane ticket to Atty. Atilano, who was his candidate, and
another ticket to Mrs. Linda Lim of Zamboanga. Records of the Philippine
Airlines showed that Atty. Nisce paid for the plane tickets of Vicente Real,
Jr. (Exh. D-1-Calica), Romeo Fortes (Exh. D-1-Calica), Cesar Batica
(Exh. D-2-Calica), Jose Buban of Leyte (Exh. D-2-Calica), Delsanto
Resuello (Exh. D-3- Calica), and Ceferino Cabanas (Exh. D-3-Calica).
In spite of his efforts and expense, only one of Nisce's candidates won:
Renato Ronquillo of Manila 4, as Secretary of the House of Delegates
(t.s.n. July 3, p. 161).
(5) Giving free hotel accommodations, food, drinks, entertainment to
delegates.
(a) ATTY. NEREO PACULDO
Atty. Paculdo alleged that he booked 24 regular rooms and three suites
at the Holiday Inn, which served as his headquarters. The 24 rooms were
to be occupied by his staff (mostly ladies) and the IBP delegates. The
three suites were to be occupied by himself, the officers of the Capitol
Bar Association, and Atty. Mario Jalandoni. He paid P150,000 for the
hotel bills of his delegates at the Holiday Inn, where a room cost P990
per day with breakfast.
Those listed as guests of Atty. Paculdo at the Holiday Inn were: Emesto
C. Perez, Tolomeo Ligutan Judge Alfonso Combong, Ricardo Caliwag,
Antonio Bisnar, Benedicto Balajadia, Jesus Castro, Restituto Villanueva,
Serapio Cribe Juanita Subia, Teodorico J. Almine, Rudy Gumban, Roem
Arbolado, Ricardo Teruel, Shirley Moises, Ramon Roco, Alberto Trinidad,
Teodoro Quicoy Manito Lucero, Fred Cledera Vicente Tordilla, Julian
Ocampo, Francisco Felizmenio Marvel Clavecilla, Amador Capiral,
Eufronio Maristela, Porfirio Siyangco, William Llanes, Jr., Marciano Neri,
Guerrero Adaza, Diosdado Peralta, Luis C. Formilleza, Jr., Democrito
Perez, Bruno Flores, Dennis Rendon, Judge Ceferino Chan, Mario
Jalandoni, Kenneth Siruelo Bella Tiro, Antonio Santos, Tiburcio Edano
James Tan, Cesilo A. Adaza, Francisco Roxas, Angelita Gacutan, Jesse
Pimentel, Judge Jaime Hamoy, Jesus Anonat, Carlos Egay, Judge
Carlito Eisma, Judge Jesus Carbon, Joven Zach, and Benjamin Padon.
Noel de Guzman, Holiday Inn's credit manager, testified that Atty.
Paculdo booked 52 (not 24) rooms, including the presidential suite, which
was used as the Secretariat. The group bookings were made by Atty.
Gloria Paculdo, the wife of Nereo Paculdo (t.s.n. June 28, 1989, pp. 63-
68). The total sum of P227,114.89 was paid to Holiday Inn for the use of
the rooms.
(b) ATTY. VIOLETA C. DRILON
The delegates and supporters of Atty. Drilon were billeted at the
Philippine Plaza Hotel where her campaign manager, Atty. Renato
Callanta, booked 40 rooms, 5 of which were suites. According to Ms.
Villanueva, Philippine Plaza banquet and conventions manager, the
contract that Atty. Callanta signed with the Philippine Plaza was made in
the name of the "IBP c/o Atty. Callanta."
Mrs. Lourdes Juco, a sales manager of the Philippine Plaza, recalled that
it was Mr. Mariano Benedicto who first came to book rooms for the IBP
delegates. She suggested that he obtain a group (or discounted) rate. He
gave her the name of Atty. Callanta who would make the arrangements
125
with her. Mr. Benedicto turned out to be the Assistant Secretary of the
Department of Labor and Employment (DOLE).
The total sum of P316,411.53 was paid by Atty. Callanta for the rooms,
food, and beverages consumed by the Drilon group, with an unpaid
balance of P302,197.30. Per Attorney Daniel Martinez's last telephone
conversation with Ms. Villanueva, Atty. Callanta still has an outstanding
account of P232,782.65 at Philippine Plaza.
Atty. Callanta admitted that he signed the contract for 40 rooms at the
Philippine Plaza. He made a downpayment of P123,000. His "working
sheet' showed that the following persons contributed for that down
payment:
(a) Nilo Pena (Quasha Law Office) P 25,000
(b) Antonio Carpio 20,000
(c) Toto Ferrer (Carpio Law Office) 10,000
(d) Jay Castro 10,000
(e) Danny Deen 20,000
(f) Angangco Tan (Angara Law Office) 10,000
(g) Alfonso Reyno 20,000
(h) Cosme Rossel 15,300
(t.s.n. July 4, 1 989, pp. 3-4)
Atty. Callanta explained that the above listed persons have been
contributing money every time the IBP embarks on a project. This time,
they contributed so that their partners or associates could attend the legal
aid seminar and the IBP convention too.
Atty. Drilon alleged that she did not know that Atty. Callanta had billeted
her delegates at the Philippine Plaza. She allegedly did not also know in
whose name the room she occupied was registered. But she did ask for a
room where she could rest during the convention. She admitted,
however, that she paid for her hotel room and meals to Atty. Callanta,
through Atty. Loanzon (t.s.n. July 3,1989).
The following were listed as having occupied the rooms reserved by Atty.
Callanta at the Philippine Plaza: Violeta Drilon, Victoria A. Verciles,
Victoria C. Loanzon, Leopoldo A. Consulto Ador Lao, Victoria Borra,
Aimee Wong, Callanta, Pena, Tiu, Gallardo, Acong Atienza, D. Bernardo,
Amores, Silao Caingat, Manuel Yuson, Simeon Datumanong, Manuel
Pecson, Sixto Marella, Joselito Barrera, Radon Macalalag, Oscar
Badelles, Antonio Acyatan, Ildefonso C. Puerto, Nestor Atienza, Gil
Batula Array Corot, Dimakuta Corot Romeo Fortes Irving Petilla, Teodoro
Palma, Gil Palma, Danilo Deen, Delsanto, Resuello, Araneta, Vicente
Real, Sylvio Casuncad Espina, Guerrero, Julius Neri, Linda Lim, Ben Lim,
C. Batica, Luis Formilleza, Felix Macalag Mariano Benedicto, Atilano,
Araneta, Renato Callanta.
Atty. Nilo Pena admitted that the Quasha Law Office of which he is a
senior partner, gave P25,000 to Callanta for rooms at the Philippine
Plaza so that some members of his law firm could campaign for the
Drilon group (t.s.n. July 5,1989, pp. 7678) during the legal aid seminar
and the IBP convention. Most of the members of his law firm are fraternity
brothers of Secretary Drilon (meaning, members of the Sigma Rho
Fraternity). He admitted being sympathetic to the candidacy of Atty.
Drilon and the members of her slate, two of whom Jose Grapilon and
Simeon Datumanong — are Sigma Rhoans. They consider Atty. Drilon as
a "sigma rho sister," her husband being a sigma rhoan.
Atty. Antonio Carpio, also a Sigma Rhoan, reserved a room for the
members of his own firm who attended the legal aid seminar and the
convention. He made the reservation through Atty. Callanta to whom he
paid P20,000 (t.s.n. July 6,1989, pp. 30-34).
Atty. Carpio assisted Atty. Drilon in her campaign during the convention,
by soliciting the votes of delegates he knew, like Atty. Albacite his former
teacher (but the latter was already committed to Nisce), and Atty. Romy
Fortes, a classmate of his in the U.P. College of Law (t. t.s.n. July 6,
1989, pp. 22, 29, 39).
(c) ATTY. RAMON NISCE.
Atty. Nisce, through his brother-in-law, Ricardo Paras, entered into a
contract with the Hyatt Hotel for a total of 29 rooms plus one (1) seventh-
floor room. He made a downpayment of P20,000 (t.s.n. June 28, 1989, p.
58) on April 20, 1989, and P37,632.45 on May 10, or a total of
P57,632.45.
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Ms. Cecile Flores, Ms. Milagros Ocampo, and Mr. Ramon Jacinto, the
sales department manager, credit manager, and reservation manager,
respectively of the Hyatt, testified that Atty. Nisce's bill amounted to
P216,127.74 (t.s.n. June 28, 1989, pp. 57-58; Exhibits E-Flores, F-
Jacinto G-Ocampo).
As earlier mentioned, Atty. Nisce admitted that he reserved rooms for
those who committed themselves to his candidacy.
The hotel guests of Atty. Nisce were: Gloria Agunos Dennis Habanel B.
Batula, John E. Asuncion, Reynaldo Cortes, Lourdes Santos, Elmer
Datuin, Romualdo Din, Antonio Nalapo, Israel Damasco, Candido Balbin,
Serrano Balot, Ibarra, Joel Llosa, Eltanal, Ruperto, Asuncion, Q. Pilotin
Reymundo P. Guzman, Zoilo Aguinaldo, Clarin, R. Ronquillo, Dominador
Carillo, Filomeno Balinas, Ernesto Sabulan, Yusop Pangadapun, A.
Viray, Icampo, Abelardo Fermin, C. Quiaoit, Augurio Pamintuan, Daniel
Macaraeg, Onofre Tejada.
(6) Campaigning by labor officials for Atty. Violeta Drilon
In violation of the prohibition against "campaigning for or against a
candidate while holding an elective, judicial, quasi-judicial, or prosecutory
office in the Government' (Sec. 14[c], Art. I, IBP By-Laws), Mariano E.
Benedicto II, Assistant Secretary, Department of Labor and Employment,
testified that he took a leave of absence from his office to attend the IBP
convention. He stayed at the Philippine Plaza with the Drilon group
admittedly to give "some moral assistance" to Atty. Violeta Drilon. He did
so because he is a member of the Sigma Rho Fraternity. When asked
about the significance of Sigma Rho, Secretary Benedicto explained:
"More than the husband of Mrs. Drilon being my boss, the significance
there is that the husband is my brother in the Sigma Rho."
He cheered up Mrs., Drilon when her spirits were low. He talked to her
immediate circle which included Art Tiu, Tony Carpio, Nilo Pena, Amy
Wong, Atty. Grapilon, Victor Lazatin, and Boy Reyno. They assessed the
progress of the campaign, and measured the strengths and weaknesses
of the other groups The group had sessions as early as the later part of
May.
Room 114, the suite listed in the name of Assistant Secretary Benedicto
toted up a bill of P23,110 during the 2-day IBP convention/election. A
total of 113 phone calls (amounting to Pl,356) were recorded as
emanating from his room.
Opposite Room 114, was Room 112, also a suite, listed in the names of
Mrs. Drilon, Gladys Tiongco (candidate for Governor, Eastern Mindanao)
and Amy Wong (candidate for Governor, Metro Manila). These two rooms
served as the "action center' or "war room" where campaign strategies
were discussed before and during the convention. It was in these rooms
where the supporters of the Drilon group, like Attys. Carpio, Callanta,
Benedicto, the Quasha and the ACCRA lawyers met to plot their moves.
(7) Paying the dues or other indebtedness of any number (Sec. 14[e], IBP
BY-Laws).
Atty. Teresita C. Sison, IBP Treasurer, testified that she has heard of
candidates paying the IBP dues of lawyers who promised to vote for or
support them, but she has no way of ascertaining whether it was a
candidate who paid the delinquent dues of another, because the receipts
are issued in the name of the member for whom payment is made (t.s.n.
June 28, 1989, pp. 24-28).
She has noticed, though, that there is an upsurge of payments in March,
April, May during any election year. This year, the collections increased
by P100,000 over that of last year (a non-election year from Pl,413,425 to
Pl,524,875 (t.s.n. June 28, 1989, p. 25).
(8) Distribution of materials other than bio-data of not more than one
page of legal size sheet of paper (Sec. 14[a], IBP By-Laws).
On the convention floor on the day of the election, Atty. Paculdo caused
to be distributed his bio-data and copies of a leaflet entitled "My Quest,"
as wen as, the lists of his slate. Attys. Drilon and Nisce similarly
distributed their tickets and bio-data.
The campaign materials of Atty. Paculdo cost from P15,000 to P20,000.
They were printed by his own printing shop.
(9) Causing distribution of such statement to be done by persons other
than those authorized by the officer presiding at the election (Sec. 14[b],
IBP By-Laws).
Atty. Paculdo employed uniformed girls to distribute his campaign
materials on the convention floor. Atty. Carpio noted that there were more
campaign materials distributed at the convention site this year than in
previous years. The election was more heated and expensive (t.s.n. July
6,1989, p. 39).
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Atty. Benjamin Bernardino, the incumbent President of the IBP Rizal
Chapter, and a candidate for chairman of the House of Delegates on
Nisce's ticket, testified that campaign materials were distributed during
the convention by girls and by lawyers. He saw members of the ACCRA
law firm campaigning for Atty. Drilon (t.s.n. July 3,1989, pp. 142-145).
(10) Inducing or influencing a member to withhold his vote, or to vote for
or against a candidate (Sec. 14[e], IBP BY-Laws).
Atty. Bernardino disclosed that his cousin, Atty. Romeo Capulong, urged
him to withdraw his candidacy for chairman of the House of Delegates
and to run as vice-chairman in Violy Drilon's slate, but he declined (t.s.n.
July 3,1989, pp. 137, 149).
Atty. Gloria Agunos personnel director of the Hyatt Terraces Hotel in
Baguio and president of the Baguio-Benguet IBP Chapter, recalled that in
the third week of May 1989, after the Tripartite meet of the Department of
Labor & Employment at the Green Valley Country Club in Baguio City,
she met Atty. Drilon, together with two labor officers of Region 1, Attys.
Filomeno Balbin and Atty. Mansala Atty. Drilon solicited her (Atty.
Agunos') vote and invited her to stay at the Philippine Plaza where a
room would be available for her. Atty. Paculdo also tried to enlist her
support during the chapter presidents' meeting to choose their nominee
for governor for the Northern Luzon region (t.s.n. July 13,1989, pp. 43-
54).
Atty. Nisce testified that a Manila Chapter 4 delegate, Marcial Magsino,
who had earlier committed his vote to Nisce changed his mind when he
was offered a judgeship (This statement, however, is admittedly
hearsay). When Nisce confronted Magsino about the alleged offer, the
latter denied that there was such an offer. Nisce's informant was Antonio
G. Nalapo an IBP candidate who also withdrew.
Another Nisce candidate, Cesar Viola, withdrew from the race and
refused to be nominated (t.s.n. June 29, 1989, p. 104). Vicente P. Tordilla
who was Nisce's candidate for Governor became Paculdo's candidate
instead (t.s.n. June 29, 1989, p. 104).
Nisce recalled that during the Bench and Bar Dialogue in Cotabato City,
Court Administrator Tiro went around saying, "I am not campaigning, but
my wife is a candidate." Nisce said that the presidents of several IBP
chapters informed him that labor officials were campaigning for Mrs.
Drilon (t.s.n. June 29,1989, pp. 109-110). He mentioned Ciony de la
Cerna, who allegedly campaigned in La Union (t.s.n. June
29,1989,p.111)
Atty. Joel A. Llosa, Nisce's supporter and candidate for governor of the
Western Visayas, expressed his disappointment over the IBP elections
because some delegates flip-flopped from one camp to another. He
testified that when he arrived at the Manila Domestic Airport he was met
by an assistant regional director of the DOLE who offered to bring him to
the Philippine Plaza, but he declined the offer. During the legal aid
seminar, Atty. Drilon invited him to transfer to the Philippine Plaza where
a room had been reserved for him. He declined the invitation (t.s.n. July
4,1989, pp. 102-106).
Atty. Llosa said that while he was still in Dumaguete City, he already
knew that the three candidates had their headquarters in separate hotels:
Paculdo, at the Holiday Inn; Drilon, at the Philippine Plaza; and Nisce, at
the Hyatt. He knew about this because a week before the elections,
representatives of Atty. Drilon went to Dumaguete City to campaign. He
mentioned Atty. Rodil Montebon of the ACCRA Law Office, accompanied
by Atty. Julve the Assistant Regional Director of the Department of Labor
in Dumaguete City. These two, he said, offered to give him two PAL
tickets and accommodations at the Philippine Plaza (t.s.n. July 4,1989,
pp. 101-104). But he declined the offer because he was already
committed to Atty. Nisce.
Atty. Llosa also revealed that before he left for Manila on May 31, 1989, a
businessman, Henry Dy, approached him to convince him to vote for Atty.
Paculdo. But Llosa told Dy that he was already committed to Nisce.
He did not receive any plane tickets from Atty. Nisce because he and his
two companions (Atty. Eltanal and Atty. Ruperto) had earlier bought their
own tickets for Manila (t.s.n. July 4, 1989, p. 101).
SUMMARY OF CAMPAIGN EXPENSES INCURRED
BY THE CANDIDATES
Atty. Paculdo admitted having spent some P250,000 during his three
weeks of campaigning. Of this amount, the Capitol Bar Association (of
which he was the chapter president) contributed about P150,000. The
Capitol Bar Association is a voluntary bar association composed of
Quezon City lawyers.
128
He spent about P100,000 to defray the expenses of his trips to the
provinces (Bicol provinces, Pampanga, Abra, Mountain Province and
Bulacan) (t.s.n. June 29,1989, pp. 9-14).
Atty. Nisce's hotel bills at the Hyatt amounted to P216,127.74. This does
not include the expenses for his campaign which began several months
before the June 3rd election, and his purchases of airplane tickets for
some delegates.
The records of the Philippine Plaza Hotel, headquarters of Atty. Drilon's
camp, showed that her campaign rang up over P600,000 in hotel bills.
Atty. Callanta paid P316,411.53 for the rooms, food, and beverage
consumed by Atty. Drilon's supporters, but still left an unpaid bill of
P302,197.30 at convention's end.
FINDINGS.
From all the foregoing, it is evident that the manner in which the principal
candidates for the national positions in the Integrated Bar conducted their
campaign preparatory to the elections on June 3, 1989, violated Section
14 of the IBP By-Laws and made a travesty of the idea of a "strictly non-
political" Integrated Bar enshrined in Section 4 of the By-Laws.
The setting up of campaign headquarters by the three principal
candidates (Drilon, Nisce and Paculdo) in five-star hotels: The Philippine
Plaza, the Holiday Inn and The Hyatt the better for them to corral and
entertain the delegates billeted therein; the island hopping to solicit the
votes of the chapter presidents who comprise the 120-member House of
Delegates that elects the national officers and regional governors; the
formation of tickets, slates, or line-ups of candidates for the other elective
positions aligned with, or supporting, either Drilon, Paculdo or Nisce; the
procurement of written commitments and the distribution of nomination
forms to be filled up by the delegates; the reservation of rooms for
delegates in three big hotels, at the expense of the presidential
candidates; the use of a PNB plane by Drilon and some members of her
ticket to enable them to "assess their chances" among the chapter
presidents in the Bicol provinces; the printing and distribution of tickets
and bio-data of the candidates which in the case of Paculdo admittedly
cost him some P15,000 to P20,000; the employment of uniformed girls
(by Paculdo) and lawyers (by Drilon) to distribute their campaign
materials on the convention floor on the day of the election; the giving of
assistance by the Undersecretary of Labor to Mrs. Drilon and her group;
the use of labor arbiters to meet delegates at the airport and escort them
to the Philippine Plaza Hotel; the giving of pre-paid plane tickets and
hotel accommodations to delegates (and some families who
accompanied them) in exchange for their support; the pirating of some
candidates by inducing them to "hop" or "flipflop" from one ticket to
another for some rumored consideration; all these practices made a
political circus of the proceedings and tainted the whole election process.
The candidates and many of the participants in that election not only
violated the By-Laws of the IBP but also the ethics of the legal profession
which imposes on all lawyers, as a corollary of their obligation to obey
and uphold the constitution and the laws, the duty to "promote respect for
law and legal processes" and to abstain from 'activities aimed at defiance
of the law or at lessening confidence in the legal system" (Rule 1.02,
Canon 1, Code of Professional Responsibility). Respect for law is gravely
eroded when lawyers themselves, who are supposed to be millions of the
law, engage in unlawful practices and cavalierly brush aside the very
rules that the IBP formulated for their observance.
The unseemly ardor with which the candidates pursued the presidency of
the association detracted from the dignity of the legal profession. The
spectacle of lawyers bribing or being bribed to vote one way or another,
certainly did not uphold the honor of the profession nor elevate it in the
public's esteem.
The Court notes with grave concern what appear to be the evasions,
denials and outright prevarications that tainted the statements of the
witnesses, including tome of the candidates, during the initial hearing
conducted by it before its fact-finding committee was created. The
subsequent investigation conducted by this Committee has revealed that
those parties had been less than candid with the Court and seem to have
conspired among themselves to deceive it or at least withhold vital
information from it to conceal the irregularities committed during the
campaign.
CONCLUSIONS.
It has been mentioned with no little insistence that the provision in the
1987 Constitution (See. 8, Art. VIII) providing for a Judicial and Bar
Council composed of seven (7) members among whom is "a
representative of the Integrated Bar," tasked to participate in the selection
of nominees for appointment to vacant positions in the judiciary, may be
the reason why the position of IBP president has attracted so much
interest among the lawyers. The much coveted "power" erroneously
129
perceived to be inherent in that office might have caused the corruption of
the IBP elections. To impress upon the participants in that electoral
exercise the seriousness of the misconduct which attended it and the
stern disapproval with which it is viewed by this Court, and to restore the
non-political character of the IBP and reduce, if not entirely eliminate,
expensive electioneering for the top positions in the organization which,
as the recently concluded elections revealed, spawned unethical
practices which seriously diminished the stature of the IBP as an
association of the practitioners of a noble and honored profession, the
Court hereby ORDERS:
1. The IBP elections held on June3,1989 should be as they are hereby
annulled.
2. The provisions of the IBP By-Laws for the direct election by the House
of Delegates (approved by this Court in its resolution of July 9, 1985 in
Bar Matter No. 287) of the following national officers:
(a) the officers of the House of Delegates;
(b) the IBP president; and
(c) the executive vice-president,
be repealed, this Court being empowered to amend, modify or repeal the
By-Laws of the IBP under Section 77, Art. XI of said By-Laws.
3. The former system of having the IBP President and Executive Vice-
President elected by the Board of Governors (composed of the governors
of the nine [91 IBP regions) from among themselves (as provided in Sec.
47, Art. VII, Original IBP By-Laws) should be restored. The right of
automatic succession by the Executive Vice-President to the presidency
upon the expiration of their two-year term (which was abolished by this
Court's resolution dated July 9,1985 in Bar Matter No. 287) should be as
it is hereby restored.
4. At the end of the President's two-year term, the Executive Vice-
President shall automatically succeed to the office of president. The
incoming board of governors shall then elect an Executive Vice-President
from among themselves. The position of Executive Vice-President shall
be rotated among the nine (9) IBP regions. One who has served as
president may not run for election as Executive Vice-President in a
succeeding election until after the rotation of the presidency among the
nine (9) regions shall have been completed; whereupon, the rotation shall
begin anew.
5. Section 47 of Article VII is hereby amended to read as follows:
Section 47. National Officers. — The Integrated Bar of the
Philippines shall have a President and Executive Vice-
President to be chosen by the Board of Governors from
among nine (9) regional governors, as much as
practicable, on a rotation basis. The governors shall be ex
oficio Vice-President for their respective regions. There
shall also be a Secretary and Treasurer of the Board of
Governors to be appointed by the President with the
consent of the Board.
6. Section 33(b), Art. V, IBP By-Laws, is hereby amended as follows:
(b) The President and Executive Vice President of the IBP
shall be the Chairman and Vice-Chairman, respectively,
of the House of Delegates. The Secretary, Treasurer, and
Sergeant-at-Arms shall be appointed by the President
with the consent of the House of Delegates.'
7. Section 33(g) of Article V providing for the positions of Chairman, Vice-
Chairman, Secretary-Treasurer and Sergeant-at- Arms of the House of
Delegates is hereby repealed
8. Section 37, Article VI is hereby amended to read as follows:
Section 37. Composition of the Board. — The Integrated
Bar of the Philippines shall be governed by a Board of
Governors consisting of nine (9) Governors from the nine
(9) regions as delineated in Section 3 of the Integration
Rule, on the representation basis of one (1) Governor for
each region to be elected by the members of the House of
Delegates from that region only. The position of Governor
should be rotated among the different Chapters in the
region.
9. Section 39, Article V is hereby amended as follows:
Section 39. Nomination and election of the Governors at
least one (1) month before the national convention the
130
 delegates from each region shall elect the governor for
their region, the choice of which shall as much as possible
be rotated among the chapters in the region.
10. Section33(a), Article V hereby is amended by addingthe following
provision as part of the first paragraph:
No convention of the House of Delegates nor of the
general membership shall be held prior to any election in
an election year.
11. Section 39, (a), (b), (1), (2), (3), (4), (5), (6), and (7) of Article VI
should be as they are hereby deleted.
All other provisions of the By-Laws including its amendment by the
Resolution en banc of this Court of July 9, 1985 (Bar Matter No. 287) that
are inconsistent herewith are hereby repealed or modified.
12. Special elections for the Board of Governors shall be held in the nine
(9) IBP regions within three (3) months, after the promulgation of the
Court's resolution in this case. Within thirty (30) days thereafter, the
Board of Governors shall meet at the IBP Central Office in Manila to elect
from among themselves the IBP national president and executive vice-
president. In these special elections, the candidates in the election of the
national officers held on June 3,1989, particularly identified in Sub-Head
3 of this Resolution entitled "Formation of Tickets and Single Slates," as
well as those identified in this Resolution as connected with any of the
irregularities attendant upon that election, are ineligible and may not
present themselves as candidate for any position.
13. Pending such special elections, a caretaker board shall be appointed
by the Court to administer the affairs of the IBP. The Court makes clear
that the dispositions here made are without prejudice to its adoption in
due time of such further and other measures as are warranted in the
premises.
SO ORDERED.
SECOND DIVISION
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION),
CEBU CITY, and JON DE YSASI, respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood for naught in
this case, notwithstanding the vinculum of paternity and filiation between
the parties. It would indeed have been the better part of reason if herein
petitioner and private respondent had reconciled their differences in an
extrajudicial atmosphere of familial amity and with the grace of reciprocal
concessions. Father and son opted instead for judicial intervention
despite the inevitable acrimony and negative publicity. Albeit with
distaste, the Court cannot proceed elsewise but to resolve their dispute
with the same reasoned detachment accorded any judicial proceeding
before it.
The records of this case reveal that petitioner was employed by his
father, herein private respondent, as farm administrator of Hacienda
Manucao in Hinigaran, Negros Occidental sometime in April, 1980. Prior
thereto, he was successively employed as sales manager of Triumph
International (Phil.), Inc. and later as operations manager of Top Form
Manufacturing (Phil.), Inc. His employment as farm administrator was on
a fixed salary, with other allowances covering housing, food, light, power,
telephone, gasoline, medical and dental expenses.
As farm administrator, petitioner was responsible for the supervision of
daily activities and operations of the sugarcane farm such as land
preparation, planting, weeding, fertilizing, harvesting, dealing with third
persons in all matters relating to the hacienda and attending to such other
131
tasks as may be assigned to him by private respondent. For this purpose,
he lived on the farm, occupying the upper floor of the house there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City
with his wife and commuted to work daily. He suffered various ailments
and was hospitalized on two separate occasions in June and August,
1982. In November, 1982, he underwent fistulectomy, or the surgical
removal of the fistula, a deep sinuous ulcer. During his recuperation
which lasted over four months, he was under the care of Dr. Patricio Tan.
In June, 1983, he was confined for acute gastroenteritis and, thereafter,
for infectious hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took
care of his medical expenses and petitioner continued to receive
compensation. However, in April, 1984, without due notice, private
respondent ceased to pay the latter's salary. Petitioner made oral and
written demands for an explanation for the sudden withholding of his
salary from Atty. Apolonio Sumbingco, private respondent's auditor and
legal adviser, as well as for the remittance of his salary. Both demands,
however, were not acted upon.
Petitioner then filed an action with the National Labor Relations
Commission (NLRC, for brevity), Regional Arbitration Branch No. VI,
Bacolod City, on October 17, 1984, docketed therein as RAB Case No.
0452-84, against private respondent for illegal dismissal with prayer for
reinstatement without loss of seniority rights and payment of full back
wages, thirteenth month pay for 1983, consequential, moral and
exemplary damages, as well as attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was dismissed by
the NLRC,1 holding that petitioner abandoned his work and that the
termination of his employment was for a valid cause, but ordering private
respondent to pay petitioner the amount of P5,000.00 as penalty for his
failure to serve notice of said termination of employment to the
Department of Labor and Employment as required by Batas Pambansa
Blg. 130 and consonant with this Court's ruling in Wenphil Corporation
vs. National Labor Relations Commission, et al.2 On appeal to the Fourth
Division of the NLRC, Cebu City, said decision was affirmed in toto.3
His motion for reconsideration4 of said decision having been denied for
lack of merit,5 petitioner filed this petition presenting the following issues
for resolution: (1) whether or not the petitioner was illegally dismissed; (2)
whether or not he is entitled to reinstatement, payment of back wages,
thirteenth month pay and other benefits; and (3) whether or not he is
entitled to payment of moral and exemplary damages and attorney's fees
because of illegal dismissal. The discussion of these issues will
necessarily subsume the corollary questions presented by private
respondent, such as the exact date when petitioner ceased to function as
farm administrator, the character of the pecuniary amounts received by
petitioner from private respondent, that is, whether the same are in the
nature of salaries or pensions, and whether or not there was
abandonment by petitioner of his functions as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor General
recommended a modification of the decision of herein public respondent
sustaining the findings and conclusions of the Executive Labor Arbiter in
RAB Case No. 0452-84,6 for which reason the NLRC was required to
submit its own comment on the petition. In compliance with the Court's
resolution of November 16, 1992,7 NLRC filed its comment on February
12, 1992 largely reiterating its earlier position in support of the findings of
the Executive Labor Arbiter.8
Before proceeding with a discussion of the issues, the observation of the
labor arbiter is worth noting:
This case is truly unique. What makes this case unique is
the fact that because of the special relationship of the
parties and the nature of the action involved, this case
could very well go down (in) the annals of the
Commission as perhaps the first of its kind. For this case
is an action filed by an only son, his father's namesake,
the only child and therefore the only heir against his own
father.9
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the records, two (2)
observations were noted that may justify why this labor
case deserves special considerations. First, most of the
complaints that petitioner and private respondent had with
each other, were personal matters affecting father and
son relationship. And secondly, if any of the complaints
pertain to their work, they allow their personal relationship
to come in the way.10
132
I. Petitioner maintains that his dismissal from employment was illegal
because of want of just cause therefor and non-observance of the
requirements of due process. He also charges the NLRC with grave
abuse of discretion in relying upon the findings of the executive labor
arbiter who decided the case but did not conduct the hearings thereof.
Private respondent, in refutation, avers that there was abandonment by
petitioner of his functions as farm administrator, thereby arming private
respondent with a ground to terminate his employment at Hacienda
Manucao. It is also contended that it is wrong for petitioner to question
the factual findings of the executive labor arbiter and the NLRC as only
questions of law may be appealed for resolution by this Court.
Furthermore, in seeking the dismissal of the instant petition, private
respondent faults herein petitioner for failure to refer to the corresponding
pages of the transcripts of stenographic notes, erroneously citing
Sections 15(d) and 16(d), Rule 44 (should be Section 16[c] and [d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide
that want of page references to the records is a ground for dismissal of
an appeal.
Prefatorily, we take advertence of the provisions of Article 221 of the
Labor Code that technical rules of evidence prevailing in courts of law
and equity shall not be controlling, and that every and all reasonable
means to speedily and objectively ascertain the facts in each case shall
be availed of, without regard to technicalities of law or procedure in the
interest of due process.
It is settled that it is not procedurally objectionable for the decision in a
case to be rendered by a judge, or a labor arbiter for that matter, other
than the one who conducted the hearing. The fact that the judge who
heard the case was not the judge who penned the decision does not
impair the validity of the judgment,11 provided that he draws up his
decision and resolution with due care and makes certain that they truly
and accurately reflect conclusions and final dispositions on the bases of
the facts of and evidence submitted in the case.12
Thus, the mere fact that the case was initially assigned to Labor Arbiter
Ricardo T. Octavio, who conducted the hearings therein from December
5, 1984 to July 11, 1985, and was later transferred to Executive Labor
Arbiter Oscar S. Uy, who eventually decided the case, presents no
procedural infirmity, especially considering that there is a presumption of
regularity in the performance of a public officer's functions, 13 which
petitioner has not successfully rebutted.
We are constrained to heed the underlying policy in the Labor Code
relaxing the application of technical rules of procedure in labor cases in
the interest of due process, ever mindful of the long-standing legal
precept that rules of procedure must be interpreted to help secure, not
defeat, justice. For this reason, we cannot indulge private respondent in
his tendency to nitpick on trivial technicalities to boost his arguments. The
strength of one's position cannot be hinged on mere procedural niceties
but on solid bases in law and jurisprudence.
The fundamental guarantees of security of tenure and due process
dictate that no worker shall be dismissed except for just and authorized
cause provided by law and after due process.14 Article 282 of the Labor
Code enumerates the causes for which an employer may validly
terminate an employment, to wit:
(a) serious misconduct or willful disobedience by the employee of the
lawful orders of his employer or representative in connection with his
work; (b) gross and habitual neglect by the employee of his duties; (c)
fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative; (d) commission of a crime or
offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representative;
and (e) other causes analogous to the foregoing.
The employer may also terminate the services of any employee due to
the installation of labor saving devices, redundancy, retrenchment to
prevent losses or the closing or cessation of operation of the
establishment or undertaking, unless the closing is for the purpose of
circumventing the pertinent provisions of the Labor Code, by serving a
written notice on the workers and the Department of Labor and
Employment at least one (1) month before the intended date thereof, with
due entitlement to the corresponding separation pay rates provided by
law.15Suffering from a disease by reason whereof the continued
employment of the employee is prohibited by law or is prejudicial to his
and his co-employee's health, is also a ground for termination of his
services provided he receives the prescribed separation pay.16 On the
other hand, it is well-settled that abandonment by an employee of his
work authorizes the employer to effect the former's dismissal from
employment.17
After a careful review of the records of this case, we find that public
respondent gravely erred in affirming the decision of the executive labor
arbiter holding that petitioner abandoned his employment and was not
illegally dismissed from such employment. For want of substantial bases,
in fact or
133
in law, we cannot give the stamp of finality and conclusiveness normally
accorded to the factual findings of an administrative agency, such as
herein public respondent NLRC,18 as even decisions of administrative
agencies which are declared "final" by law are not exempt from judicial
review when so warranted. 19
The following perceptive disquisitions of the Solicitor General on this
point deserve acceptance:
It is submitted that the absences of petitioner in his work from
October 1982 to December 1982, cannot be construed as
abandonment of work because he has a justifiable excuse.
Petitioner was suffering from perennial abscess in the peri-anal
around the anus and fistula under the medical attention of Dr.
Patricio Tan of Riverside Medical Center, Inc., Bacolod City (Tsn,
Vol. III, Dr. Tan, February 19, 1986 at 20-44).
This fact (was) duly communicated to private respondent by
medical bills sent to Hacienda Manucao (Tsn, Vol. III, Dr. Tan,
January 22, 1987 at 49-50).
During the period of his illness and recovery, petitioner stayed in
Bacolod City upon the instruction(s) of private respondent to
recuperate thereat and to handle only administrative matters of
the hacienda in that city. As a manager, petitioner is not really
obliged to live and stay 24 hours a day inside Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of the special
circumstances involved and basic human experience, petitioner's
illness and strained family relation with respondent Jon de Ysasi
II may be considered as justifiable reason for petitioner Jon de
Ysasi III's absence from work during the period of October 1982
to December 1982. In any event, such absence does not warrant
outright dismissal without notice and hearing.
xxx xxx xxx
The elements of abandonment as a ground for dismissal of an
employee are as follows:
(1) failure to report for work or absence without valid or
justifiable reason; and (2) clear intention to sever the
employer-employee tie (Samson Alcantara, Reviewer in
Labor and Social Legislation, 1989 edition, p. 133).
This Honorable Court, in several cases, illustrates what constitute
abandonment. In Dagupan Bus Company v. NLRC (191 SCRA
328), the Court rules that for abandonment to arise, there must be
a concurrence of the intention to abandon and some overt act
from which it may be inferred that the employee has no more
interest to work. Similarly, in Nueva Ecija I Electric Cooperative,
Inc. v. NLRC (184 SCRA 25), for abandonment to constitute a
valid cause for termination of employment, there must be a
deliberate, unjustified refusal of the employee to resume his
employment. . . Mere absence is not sufficient; it must be
accompanied by overt acts unerringly pointing to the fact that the
employee simply does not want to work anymore.
There are significant indications in this case, that there is no
abandonment. First, petitioner's absence and his decision to
leave his residence inside Hacienda Manucao, is justified by his
illness and strained family relations. Second he has some
medical certificates to show his frail health. Third, once able to
work, petitioner wrote a letter (Annex "J") informing private
respondent of his intention to assume again his employment.
Last, but not the least, he at once instituted a complaint for illegal
dismissal when he realized he was unjustly dismissed. All these
are indications that petitioner had no intention to abandon his
employment.20
The records show that the parties herein do not dispute the fact of
petitioner's confinement in the hospital for his various afflictions which
required medical treatment. Neither can it be denied that private
respondent was well aware of petitioner's state of health as the former
admittedly shouldered part of the medical and hospital bills and even
advised the latter to stay in Bacolod City until he was fit to work again.
The disagreement as to whether or not petitioner's ailments were so
serious as to necessitate hospitalization and corresponding periods for
recuperation is beside the point. The fact remains that on account of said
illnesses, the details of which were amply substantiated by the attending
physician,21 and as the records are bereft of any suggestion of
malingering on the part of petitioner, there was justifiable cause for
petitioner's absence from work. We repeat, it is clear, deliberate and
unjustified refusal to resume employment and not mere absence that is
134
required to constitute abandonment as a valid ground for termination of
employment.22
With his position as farm administrator of Hacienda Manucao, petitioner
unmistakably may be classified as a managerial employee23 to whom the
law grants an amount of discretion in the discharge of his duties. This is
why when petitioner stated that "I assigned myself where I want to
go,"24 he was simply being candid about what he could do within the
sphere of his authority. His duties as farm administrator did not strictly
require him to keep regular hours or to be at the office premises at all
times, or to be subjected to specific control from his employer in every
aspect of his work. What is essential only is that he runs the farm as
efficiently and effectively as possible and, while petitioner may definitely
not qualify as a model employee, in this regard he proved to be quite
successful, as there was at least a showing of increased production
during the time that petitioner was in charge of farm operations.
If, as private respondent contends, he had no control over petitioner
during the years 1983 to 1984, this is because that was the period when
petitioner was recuperating from illness and on account of which his
attendance and direct involvement in farm operations were irregular and
minimal, hence the supervision and control exercisable by private
respondent as employer was necessarily limited. It goes without saying
that the control contemplated refers only to matters relating to his
functions as farm administrator and could not extend to petitioner's
personal affairs and activities.
While it was taken for granted that for purposes of discharging his duties
as farm administrator, petitioner would be staying at the house in the
farm, there really was no explicit contractual stipulation (as there was no
formal employment contract to begin with) requiring him to stay therein
for the duration of his employment or that any transfer of residence would
justify the termination of his employment. That petitioner changed his
residence should not be taken against him, as this is undeniably among
his basic rights, nor can such fact of transfer of residence per se be a
valid ground to terminate an employer-employee relationship.
Private respondent, in his pleadings, asserted that as he was yet
uncertain of his son's intention of returning to work after his confinement
in the hospital, he kept petitioner on the payroll, reported him as an
employee of the haciendafor social security purposes, and paid his
salaries and benefits with the mandated deductions therefrom until the
end of December, 1982. It was only in January, 1983 when he became
convinced that petitioner would no longer return to work that he
considered the latter to have abandoned his work and, for this reason, no
longer listed him as an employee. According to private respondent,
whatever amount of money was given to petitioner from that time until
April, 1984 was in the nature of a pension or an allowance or mere
gratuitous doles from a father to a son, and not salaries as, in fact, none
of the usual deductions were made therefrom. It was only in April, 1984
that private respondent completely stopped giving said pension or
allowance when he was angered by what he heard petitioner had been
saying about sending him to jail.
Private respondent capitalizes on the testimony of one Manolo Gomez
taken on oral deposition regarding petitioner's alleged statement to him,
"(h)e quemado los (p)ue(n)tes de Manucao" ("I have burned my bridges
with Manucao") as expressive of petitioner's intention to abandon his job.
In addition to insinuations of sinister motives on the part of petitioner in
working at the farm and thereafter abandoning the job upon
accomplishment of his objectives, private respondent takes the novel
position that the agreement to support his son after the latter abandoned
the administration of the farm legally converts the initial abandonment to
implied voluntary resignation.25
As earlier mentioned, petitioner ripostes that private respondent
undoubtedly knew about petitioner's illness and even paid for his hospital
and other medical bills. The assertion regarding abandonment of work,
petitioner argues, is further belied by his continued performance of
various services related to the operations of the farm from May to the last
quarter of 1983, his persistent inquiries from his father's accountant and
legal adviser about the reason why his pension or allowance was
discontinued since April, 1984, and his indication of having recovered and
his willingness and capability to resume his work at the farm as
expressed in a letter dated September 14, 1984. 26 With these, petitioner
contends that it is immaterial how the monthly pecuniary amounts are
designated, whether as salary, pension or allowance, with or without
deductions, as he was entitled thereto in view of his continued service as
farm administrator.27
To stress what was earlier mentioned, in order that a finding of
abandonment may justly be made there must be a concurrence of two
elements, viz.: (1) the failure to report for work or absence without valid or
justifiable reason, and (2) a clear intention to sever the employer-
employee relationship, with the second element as the more
determinative factor and being manifested by some overt acts. Such
intent we find dismally wanting in this case.
135
It will be recalled that private respondent himself admitted being unsure
of his son's plans of returning to work. The absence of petitioner from
work since mid-1982, prolonged though it may have been, was not
without valid causes of which private respondent had full knowledge. As
to what convinced or led him to believe that petitioner was no longer
returning to work, private respondent neither explains nor substantiates
by any reasonable basis how he arrived at such a conclusion.
Moreover, private respondent's claim of abandonment cannot be given
credence as even after January, 1983, when private respondent
supposedly "became convinced" that petitioner would no longer work at
the farm, the latter continued to perform services directly required by his
position as farm administrator. These are duly and correspondingly
evidenced by such acts as picking up some farm machinery/equipment
from G.A. Machineries, Inc.,28 claiming and paying for additional farm
equipment and machinery shipped by said firm from Manila to Bacolod
through Zip Forwarders,29 getting the payment of the additional cash
advances for molasses for crop year 1983-1984 from Agrotex
Commodities, Inc.,30 and remitting to private respondent through
Atty. Sumbingco the sums collected along with receipts for medicine and
oil.31
It will be observed that all of these chores, which petitioner took care of,
relate to the normal activities and operations of the farm. True, it is a
father's prerogative to request or even command his child to run errands
for him. In the present case, however, considering the nature of these
transactions, as well as the property values and monetary sums involved,
it is unlikely that private respondent would leave the matter to just
anyone. Prudence dictates that these matters be handled by someone
who can be trusted or at least be held accountable therefor, and who is
familiar with the terms, specifications and other details relative thereto,
such as an employee. If indeed petitioner had abandoned his job or was
considered to have done so by private respondent, it would be awkward,
or even out of place, to expect or to oblige petitioner to concern himself
with matters relating to or expected of him with respect to what would
then be his past and terminated employment. It is hard to imagine what
further authority an employer can have over a dismissed employee so as
to compel him to continue to perform work-related tasks:
It is also significant that the special power of attorney32 executed
by private respondent on June 26, 1980 in favor of petitioner, specifically
stating —
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal age, married, and a
resident of Hda. Manucao, hereinafter called and referred to as
PRINCIPAL, am a sugarcane planter, BISCOM Mill District, and a
duly accredited planter-member of the BINALBAGAN-ISABELA
PLANTERS' ASSOCIATION, INC.;
That as such planter-member of BIPA, I have check/checks with
BIPA representing payment for all checks and papers to which I
am entitled to (sic) as such planter-member;
That I have named, appointed and constituted as by these
presents
I HEREBY NAME, APPOINT AND CONSTITUTE as my true and
lawful ATTORNEY-IN-FACT
JON de YSASI III
whose specimen signature is hereunder affixed, TO GET FOR
ME and in my name, place and stead, my check/checks
aforementioned, said ATTORNEY-IN-FACT being herein given
the power and authority to sign for me and in my name, place and
stead, the receipt or receipts or payroll for the said check/checks.
PROVIDED, HOWEVER, that my said ATTORNEY-IN-FACT
cannot cash the said check/checks, but to turn the same over to
me for my proper disposition.
That I HEREBY RATIFY AND CONFIRM the acts of my
Attorney-in-Fact in getting the said check/checks and signing the
receipts therefor.
That I further request that my said check/checks be made a
"CROSSED CHECK".
xxx xxx xxx
remained in force even after petitioner's employment was supposed to
have been terminated by reason of abandonment. Furthermore,
petitioner's numerous requests for an explanation regarding the stoppage
of his salaries and benefits,33 the issuance of withholding tax reports, 34 as
well as correspondence reporting his full recovery and readiness to go
back to work,35 and, specifically, his filing of the complaint for illegal
dismissal are hardly the acts of one who has abandoned his work.
136
We are likewise not impressed by the deposition of Manolo Gomez, as
witness for private respondent, ascribing statements to petitioner
supposedly indicative of the latter's intention to abandon his work. We
perceive the irregularity in the taking of such deposition without the
presence of petitioner's counsel, and the failure of private respondent to
serve reasonably advance notice of its taking to said counsel, thereby
foreclosing his opportunity to
cross-examine the deponent. Private respondent also failed to serve
notice thereof on the Regional Arbitration Branch No. VI of the NLRC, as
certified to by Administrative Assistant Celestina G. Ovejera of said
office.36 Fair play dictates that at such an important stage of the
proceedings, which involves the taking of testimony, both parties must be
afforded equal opportunity to examine and cross-examine a witness.
As to the monthly monetary amounts given to petitioner, whether
denominated as salary, pension, allowance or ex gratia handout, there is
no question as to petitioner's entitlement thereto inasmuch as he
continued to perform services in his capacity as farm administrator. The
change in description of said amounts contained in the pay slips or in the
receipts prepared by private respondent cannot be deemed to be
determinative of petitioner's employment status in view of the peculiar
circumstances above set out. Besides, if such amounts were truly in the
nature of allowances given by a parent out of concern for his child's
welfare, it is rather unusual that receipts therefor37 should be necessary
and required as if they were ordinary business expenditures.
Neither can we subscribe to private respondent's theory that petitioner's
alleged abandonment was converted into an implied voluntary resignation
on account of the father's agreement to support his son after the latter
abandoned his work. As we have determined that no abandonment took
place in this case, the monthly sums received by petitioner, regardless of
designation, were in consideration for services rendered emanating from
an employer-employee relationship and were not of a character that can
qualify them as mere civil support given out of parental duty and
solicitude. We are also hard put to imagine how abandonment can be
impliedly converted into a voluntary resignation without any positive act
on the part of the employee conveying a desire to terminate his
employment. The very concept of resignation as a ground for termination
by the employee of his employment38 does not square with the elements
constitutive of abandonment.
On procedural considerations, petitioner posits that there was a violation
by private respondent of the due process requirements under the Labor
Code for want of notice and hearing.39 Private respondent, in opposition,
argues that Section 2, Rule XIV, Book V of the Omnibus Rules
Implementing the Labor Code applies only to cases where the employer
seeks to terminate the services of an employee on any of the grounds
enumerated under Article 282 of the Labor Code, but not to the situation
obtaining in this case where private respondent did not dismiss petitioner
on any ground since it was petitioner who allegedly abandoned his
employment.40
The due process requirements of notice and hearing applicable to labor
cases are set out in Rule XIV, Book V of the Omnibus Rules
Implementing the Labor Code in this wise:
Sec. 2. Notice of Dismissal. — Any employer who seeks to
dismiss a worker shall furnish him a written notice stating the
particular acts or omission(s) constituting the grounds for his
dismissal. In cases of abandonment of work, notice shall be
served at the worker's last known address.
xxx xxx xxx
Sec. 5. Answer and hearing. — The worker may answer the
allegations as stated against him in the notice of dismissal within
a reasonable period from receipt of such notice. The employer
shall afford the worker ample opportunity to be heard and to
defend himself with the assistance of his representative, if he so
desires.
Sec. 6. Decision to dismiss. — The employer shall immediately
notify a worker in writing of a decision to dismiss him stating
clearly the reasons therefor.
Sec. 7. Right to contest dismissal. — Any decision taken by the
employer shall be without prejudice to the right of the worker to
contest the validity or legality of his dismissal by filing a complaint
with the Regional Branch of the Commission.
xxx xxx xxx
Sec. 11. Report of dismissal. — The employer shall submit a
monthly report to the Regional Office having jurisdiction over the
place of work at all dismissals effected by him during the month,
specifying therein the names of the dismissed workers, the
reasons for their dismissal, the dates of commencement and
137
 termination of employment, the positions last held by them and
such other information as may be required by the Ministry for
policy guidance and statistical purposes.
Private respondent's argument is without merit as there can be no
question that petitioner was denied his right to due process since he was
never given any notice about his impending dismissal and the grounds
therefor, much less a chance to be heard. Even as private respondent
controverts the applicability of the mandatory twin requirements of
procedural due process in this particular case, he in effect admits that no
notice was served by him on petitioner. This fact is corroborated by the
certification issued on September 5, 1984 by the Regional Director for
Region VI of the Department of Labor that no notice of termination of the
employment of petitioner was submitted thereto. 41
Granting arguendo that there was abandonment in this case, it
nonetheless cannot be denied that notice still had to be served upon the
employee sought to be dismissed, as the second sentence of Section 2
of the pertinent implementing rules explicitly requires service thereof at
the employee's last known address, by way of substantial compliance.
While it is conceded that it is the employer's prerogative to terminate an
employee, especially when there is just cause therefor, the requirements
of due process cannot be lightly taken. The law does not countenance
the arbitrary exercise of such a power or prerogative when it has the
effect of undermining the fundamental guarantee of security of tenure in
favor of the employee.42
On the executive labor arbiter's misplaced reliance on the Wenphil case,
the Solicitor General rejoins as follows:
The Labor Arbiter held thus:
While we are in full agreement with the respondent as to
his defense of implied resignation and/or abandonment,
records somehow showed that he failed to notify the
Department of
Labor and Employment for his sons' (sic)/complainants'
(sic) aba(n)donment as required by BP 130. And for this
failure, the other requisite for a valid termination by an
employer was not complied with. This however, would not
work to invalidate the otherwise (sic) existence of a valid
cause for dismissal. The validity of the cause of dismissal
must be upheld at all times provided however that
sanctions must be imposed on the respondent for his
failure to observe the notice on due process requirement.
(Wenphil Corp. v. NLRC, G.R. No. 80587). (Decision
Labor Arbiter, at 11-12, Annex "C" Petition), . . .
This is thus a very different case from Wenphil Corporation
v. NLRC, 170 SCRA 69. In Wenphil, the rule applied to the facts
is: once an employee is dismissed for just cause, he must not be
rewarded
re-employment and backwages for failure of his employer to
observe procedural due process. The public policy behind this is
that, it may encourage the employee to do even worse and
render a mockery of the rules of discipline required to be
observed. However, the employer must be penalized for his
infraction of due process. In the present case, however, not only
was petitioner dismissed without due process, but his dismissal is
without just cause. Petitioner did not abandon his employment
because he has a justifiable excuse.43
II. Petitioner avers that the executive labor arbiter erred in disregarding
the mandatory provisions of Article 279 of the Labor Code which entitles
an illegally dismissed employee to reinstatement and back wages and,
instead, affirmed the imposition of the penalty of P5,000.00 on private
respondent for violation of the due process requirements. Private
respondent, for his part, maintains that there was error in imposing the
fine because that penalty contemplates the failure to submit the
employer's report on dismissed employees to the DOLE regional office,
as required under Section 5 (now, Section 11), Rule XIV of the
implementing rules, and not the failure to serve notice upon the employee
sought to be dismissed by the employer.
Both the Constitution and the Labor Code enunciate in no uncertain
terms the right of every worker to security of tenure. 44 To give teeth to this
constitutional and statutory mandates, the Labor Code spells out the
relief available to an employee in case of its denial:
Art. 279. Security of Tenure. — In cases of regular
employment, the employer shall not terminate the
services of an employee except for a just cause or when
authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to
his full backwages, inclusive of allowances, and to his
other benefits of their monetary equivalent computed from
138
 the time his compensation was withheld from him up to
the time of actual reinstatement.
Clearly, therefore, an employee is entitled to reinstatement with full back
wages in the absence of just cause for dismissal. 45 The Court, however,
on numerous occasions has tempered the rigid application of said
provision of the Labor Code, recognizing that in some cases certain
events may have transpired as would militate against the practicability of
granting the relief thereunder provided, and declares that where there are
strained relations between the employer and the employee, payment of
back wages and severance pay may be awarded instead of
reinstatement,46 and more particularly when managerial employees are
concerned.47 Thus, where reinstatement is no longer possible, it is
therefore appropriate that the dismissed employee be given his fair and
just share of what the law accords him.48
We note with favor and give our imprimatur to the Solicitor General's
ratiocination, to wit:
As a general rule, an employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority
rights and to his backwages computed from the time his
compensation was withheld up to the time of his reinstatement.
(Morales vs. NLRC, 188 SCRA 295). But in Pacific Cement
Company, Inc. vs. NLRC, 173 SCRA 192, this Honorable Court
held that when it comes to reinstatement, differences should be
made between managers and the ordinary workingmen. The
Court concluded that a company which no longer trusts its
managers cannot operate freely in a competitive and profitable
manner. The NLRC should know the difference between
managers and ordinary workingmen. It cannot imprudently order
the reinstatement of managers with the same ease and liberality
as that of rank and file workers who had been terminated.
Similarly, a reinstatement may not be appropriate or feasible in
case of antipathy or antagonism between the parties (Morales,
vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that petitioner should
not be reinstated as farm administrator of Hacienda
Manucao. The present relationship of petitioner and
private respondent (is) so strained that a harmonious and
peaceful employee-employer relationship is hardly
possible.49
III. Finally, petitioner insists on an award of moral damages, arguing that
his dismissal from employment was attended by bad faith or fraud, or
constituted oppression, or was contrary to morals, good customs or
public policy. He further prays for exemplary damages to serve as a
deterrent against similar acts of unjust dismissal by other employers.
Moral damages, under Article 2217 of the Civil Code, may be awarded to
compensate one for diverse injuries such as mental anguish, besmirched
reputation, wounded feelings, and social humiliation, provided that such
injuries spring from a wrongful act or omission of the defendant which
was the proximate cause thereof.50 Exemplary damages, under Article
2229, are imposed by way of example or correction for the public good, in
addition to moral, temperate, liquidated or compensatory damages. They
are not recoverable as a matter of right, it being left to the court to decide
whether or not they should be adjudicated. 51
We are well aware of the Court's rulings in a number of cases in the past
allowing recovery of moral damages where the dismissal of the employee
was attended by bad faith or fraud, or constituted an act oppressive to
labor, or was done in a manner contrary to morals, good customs or
public policy,52 and of exemplary damages if the dismissal was effected in
a wanton, oppressive or malevolent manner. 53 We do not feel, however,
that an award of the damages prayed for in this petition would be proper
even if, seemingly, the facts of the case justify their allowance. In the
aforestated cases of illegal dismissal where moral and exemplary
damages were awarded, the dismissed employees were genuinely
without fault and were undoubtedly victims of the erring employers'
capricious exercise of power.
In the present case, we find that both petitioner and private respondent
can equally be faulted for fanning the flames which gave rise to and
ultimately aggravated this controversy, instead of sincerely negotiating a
peaceful settlement of their disparate claims. The records reveal how
their actuations seethed with mutual antagonism and the undeniable
enmity between them negates the likelihood that either of them acted in
good faith. It is apparent that each one has a cause for damages against
the other. For this reason, we hold that no moral or exemplary damages
can rightfully be awarded to petitioner.
On this score, we are once again persuaded by the validity of the
following recommendation of the Solicitor General:
139
 The Labor Arbiter's decision in RAB Case No. 0452-84 should be
modified. There was no voluntary abandonment in this case
because petitioner has a justifiable excuse for his absence, or
such absence does not warrant outright dismissal without notice
and hearing. Private respondent, therefore, is guilty of illegal
dismissal. He should be ordered to pay backwages for a period
not exceeding three years from date of dismissal. And in lieu of
reinstatement, petitioner may be paid separation pay equivalent
to one (1) month('s) salary for every year of service, a fraction of
six months being considered as one (1) year in accordance with
recent jurisprudence (Tan, Jr. vs. NLRC, 183 SCRA 651). But all
claims for damages should be dismissed, for both parties are
equally at fault.54
The conduct of the respective counsel of the parties, as revealed by the
records, sorely disappoints the Court and invites reproof. Both counsel
may well be reminded that their ethical duty as lawyers to represent their
clients with
zeal55 goes beyond merely presenting their clients' respective causes in
court. It is just as much their responsibility, if not more importantly, to
exert all reasonable efforts to smooth over legal conflicts, preferably out
of court and especially in consideration of the direct and immediate
consanguineous ties between their clients. Once again, we reiterate that
the useful function of a lawyer is not only to conduct litigation but to avoid
it whenever possible by advising settlement or withholding suit. He is
often called upon less for dramatic forensic exploits than for wise counsel
in every phase of life. He should be a mediator for concord and a
conciliator for compromise, rather than a virtuoso of technicality in the
conduct of litigation.56
Rule 1.04 of the Code of Professional Responsibility explicitly provides
that "(a) lawyer shall encourage his client to avoid, end or settle the
controversy if it will admit of a fair settlement." On this point, we find that
both counsel herein fell short of what was expected of them, despite their
avowed duties as officers of the court. The records do not show that they
took pains to initiate steps geared toward effecting a rapprochement
between their clients. On the contrary, their acerbic and protracted
exchanges could not but have exacerbated the situation even as they
may have found favor in the equally hostile eyes of their respective
clients.
In the same manner, we find that the labor arbiter who handled this
regrettable case has been less than faithful to the letter and spirit of the
Labor Code mandating that a labor arbiter "shall exert all efforts towards
the amicable settlement of a labor dispute within his jurisdiction." 57 If he
ever did so, or at least entertained the thought, the copious records of the
proceedings in this controversy are barren of any reflection of the same.
One final word. This is one decision we do not particularly relish having
been obliged to make. The task of resolving cases involving disputes
among members of a family leaves a bad taste in the mouth and an
aversion in the mind, for no truly meaningful and enduring resolution is
really achieved in such situations. While we are convinced that we have
adjudicated the legal issues herein squarely on the bases of law and
jurisprudence, sans sentimentality, we are saddened by the thought that
we may have failed to bring about the reconciliation of the father and son
who figured as parties to this dispute, and that our adherence here to law
and duty may unwittingly contribute to the breaking, instead of the
strengthening, of familial bonds. In fine, neither of the parties herein
actually emerges victorious. It is the Court's earnest hope, therefore, that
with the impartial exposition and extended explanation of their respective
rights in this decision, the parties may eventually see their way clear to an
ultimate resolution of their differences on more convivial terms.
WHEREFORE, the decision of respondent National Labor Relations
Commission is hereby SET ASIDE. Private respondent is ORDERED to
pay petitioner back wages for a period not exceeding three (3) years,
without qualification or deduction,58 and, in lieu of reinstatement,
separation pay equivalent to one (1) month for every year of service, a
fraction of six (6) months being considered as one (1) whole year.
SO ORDERED.
140
 EN BANC
G.R. No. L-26868 February 27, 1969
IN THE MATTER OF ATTORNEY LOPE E. ADRIANO Member of the
Philippine Bar. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REMIGIO ESTEBIA, accused-appellant.
SANCHEZ, J.:
Once again, this Court is confronted with the unwanted task of
ascertaining whether certain acts and conduct of a member of the Bar
deserve disciplinary action.
The problem arose because of facts that follow:
One Remigio Estebia was convicted of rape by the Court of First Instance
of Samar, 1 and sentenced to suffer the capital punishment. His case
came up before this Court on review.
On December 14, 1966, Lope E. Adriano, a member of the Bar, was
appointed by this Court as Estebia's counsel de oficio. In the notice of his
appointment, Adriano was required to prepare and file his brief within
thirty days from notice. He was advised that to enable him to examine the
case, the record would be at his disposal. Adriano received this notice on
December 20, 1966. On January 19, 1967, Adriano sought for a 30-day
extension to file appellant's brief in mimeographed form. On February 18,
Adriano again moved for a 20-day extension (his second). This was
followed by a third filed on March 8, for fifteen days. And a fourth on
March 27, also for fifteen days. He moved for a "last" extension of ten
days on April 11. On April 21, he even sought a special extension of five
days. All these motions for extension were granted. The brief was due on
April 26, 1967. But no brief was filed.
On September 25, 1967, Adriano was ordered to show cause within ten
days from notice thereof why disciplinary action should not be taken
against him for failure to file appellant's brief despite the lapse of the time
therefor. Adriano did not bother to give any explanation.
For failing to comply with the September 25, 1967 resolution, this Court,
on October 3, 1968, resolved to impose upon him a fine of P500 payable
to this Court within fifteen days from notice with a warning that upon
further non-compliance with the said resolution of September 25, 1967
within the same period of fifteen days, "more drastic disciplinary action
will be taken against him." Still, counsel paid no heed.
Finally, on December 5, 1968, this Court ordered Adriano to show cause
within ten days from notice thereof why he should not be suspended from
the practice of law "for gross misconduct and violation of his oath of office
as attorney." By express order of this Court, the resolution was personally
served upon him on December 18, 1968. He ignored the resolution.
Upon the facts just narrated, we now pass judgment.
1. By specific authority, this Court may assign an attorney to render
professional aid to a destitute appellant in a criminal case who is unable
to employ an attorney. Correspondingly, a duty is imposed upon the
lawyer so assigned "to render the required service." 2 A lawyer so
appointed "as counsel for an indigent prisoner", our Canons of
Professional Ethics demand, "should always exert his best efforts" in the
indigent's behalf. 3
No excuse at all has been offered for non-presentation of appellant's
brief. And yet, between December 20, 1966, when he received notice of
his appointment, and December 5, 1968, when the last show cause order
was issued by this Court, more than sufficient time was afforded counsel
to prepare and file his brief de oficio. The death sentence below imposed
was upon a plea of guilty. The record of the proceedings leading to the
lower court's sentence consists of but 31 pages. Counsel had the record
since January 19, 1967. In fact, in his third motion for extension of time,
he manifested that the drafting of apellant's brief "is more than half-way
through" and that "additional time is needed to review, effectuate the
necessary corrections, put in final form and print the said brief." In his
motion for fourth extension, he intimated that the preparation of the brief
"is almost through" and that "additional time is needed to redraft and
rehash some significant portions of said brief and have the same
stencilled and mimeographed upon completion of a definitive text." His
motion for last (fifth) extension of time came with the excuse that he
"suddenly got sick (influenza) in the course of redrafting and rehashing
some significant portions of said brief, which ailment hampered and
interrupted his work thereon for sometime." Finally, in his "Special
Extension of Time" to file brief, he claimed that he needed only five days
from April 21, 1967 to put said brief in final form and have the same
stencilled and mimeographed. lawphi1.nêt
141
In the face of the fact that no brief has ever been filed, counsel's
statements in his motions for extension have gone down to the level of
empty and meaningless words; at best, have dubious claim to veracity.
It is true that he is a court-appointed counsel. But we do say that as such
counsel de oficio, he has as high a duty to the accused as one employed
and paid by defendant himself. Because, as in the case of the latter, he
must exercise his best efforts and professional ability in behalf of the
person assigned to his care. His is to render effective assistance. The
accused defendant expects of him due diligence, not mere perfunctory
representation. We do not accept the paradox that responsibility is less
where the defended party is poor. It has been said that courts should
"have no hesitancy in demanding high standards of duty of attorneys
appointed to defend indigent persons charged with crime." 4 For, indeed, a
lawyer who is a vanguard in the bastion of justice is expected to have a
bigger dose of social conscience and a little less of self interest. Because
of this, a lawyer should remain ever conscious of his duties to the
indigent he defends.
Worth remembering is the 1905 case of In the matter of Jose Robles
Lahesa. 5 He was counsel de oficio before the Supreme Court in two
cases: one for robo en cuadrilla and the other for homicide. He failed to
take any action in behalf of the defendants in both eases. This Court
imposed upon him a fine of P200. Significant is the pronouncement we
there made that: "This court should exact from its officers and
subordinates the most scrupulous performance of their official duties,
especially when negligence in the performance of those duties
necessarily result in delays in the prosecution of criminal cases and the
detention of accused persons pending appeal." The validity of the
foregoing observation remains to the present day. 6 It applies to the
present case.
Here, appellant was without brief since December 20, 1966. The effect of
this long delay need not be essayed. We, therefore, find that Attorney
Lope E. Adriano has violated his oath that he will conduct himself as a
lawyer according to the best of his "knowledge and discretion".
2. An attorney's duty of prime importance is "[t]o observe and maintain
the respect due to the courts of justice and judicial officers. The first
Canon of the Code of Ethics enjoins a lawyer "to maintain towards the
Courts a respectful attitude, not for the sake of the temporary incumbent
of the judicial office, but for the maintenance of its supreme importance."
By the oath of office, the lawyer undertook to "obey the laws as well as
the legal orders of the duly constituted authorities." In People vs.
Carillo, 8 this Court's pointed observation was that as an officer of the
court, it is a lawyer's "sworn and moral duty to help build and not destroy
unnecessarily that high esteem and regard towards the courts so
essential to the proper administration of justice."
Here, we have a clear case of an attorney whose acts exhibit willful dis-
obedience of lawful orders of this Court. A cause sufficient is thus present
for suspension or disbarment. 9 Counsel has received no less than three
resolutions of this Court requiring compliance of its orders. To be recalled
is that on September 25, 1967, this Court directed him, in ten days from
notice, to show cause why disciplinary action should not be taken against
him for his failure to file appellant's brief despite the lapse of the time
therefor. Nothing was done by counsel for over a year. To impress upon
counsel the gravity of his repeated failure to obey this Court's orders, on
October 3,1968, a fine of P500 was clamped upon him. He was directed
to pay that fine in ten days. He was in that order also required to file his
brief in fifteen days. He was warned that more drastic disciplinary action
would be taken upon his failure to do either. Still he remained unmoved.
Then, this Court issued the peremptory order of December 5, 1968
commanding him to show cause within ten days from notice thereof why
he should not be suspended from the practice of law for gross
misconduct and violation of his oath of office. The Court made it certain
that this order would reach him. He personally acknowledged receipt
thereof. He has not paid the fine. He has done nothing.
This is 1969. No brief has as yet been filed. And this, inspite of the fact
that as early as March 27, 1967, when he moved for a fourth extension of
time to file his brief de oficio, he represented to this Court that all that was
needed was to redraft and to rehash some significant portions of the brief
which was almost through and to have the same stencilled and
mimeographed upon completion of a definitive text.
Disrespect is here present. Contumacy is as patent. Disciplinary action is
in order.
Controlling here is the 1961 decision In the Matter of Atty. Filoteo Dianala
Jo. 10 There, as here, counsel failed to file appellant's brief (in a criminal
case) despite extensions of time granted him by this Court. Likewise, this
Court issued a show-cause order why disciplinary action should not be
taken against him. The explanation was considered unsatisfactory. This
Court imposed a fine of P50 payable in ten days from notice. Attorney
Dianala Jo did not pay that fine. Came the subsequent resolution of this
Court advising him to pay the fine, otherwise, he would be arrested and
confined to jam. This warning was not heeded. On November 18, 1960,
142
the Court resolved to give him ten days from notice within which to
explain why he should not be suspended from the practice of law.
Despite receipt of this notice, he did not care to explain his behaviour
which this Court considered as "consumacy and unwillingness to comply
with the lawful orders of this Court of which he is an officer or to conduct
himself as a lawyer should, in violation of his oath of office." He was
suspended from the practice of law for three months.
In the present case, counsel's pattern of conduct, it would seem to us,
reveals a propensity on the part of counsel to benumb appreciation of his
obligation as counsel de oficio and of the courtesy and respect that
should be accorded this Court.
For the reasons given, we vote to suspend Attorney Lope E. Adriano from
the practice of law throughout the Philippines for a period of one (1) year.
Let a copy of this resolution be attached to the personal record, in this
Court, of Lope E. Adriano as member of the Bar. So ordered.
SECOND DIVISION
G.R. No. L-23815 June 28, 1974
ADELINO H. LEDESMA, petitioner,
vs. HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of
First Instance of Negros Occidental, Branch I, Silay City,
respondent.
Adelino H. Ledesma in his own behalf.
Hon. Rafael C. Climaco in his own behalf.
FERNANDO, J.:p
What is assailed in this certiorari proceeding is an order of respondent
Judge denying a motion filed by petitioner to be allowed to withdraw as
counsel de oficio.1 One of the grounds for such a motion was his
allegation that with his appointment as Election Registrar by the
Commission on Elections, he was not in a position to devote full time to
the defense of the two accused. The denial by respondent Judge of such
a plea, notwithstanding the conformity of the defendants, was due "its
principal effect [being] to delay this case."2 It was likewise noted that the
prosecution had already rested and that petitioner was previously counsel
de parte, his designation in the former category being precisely to protect
him in his new position without prejudicing the accused. It cannot be
plausibly asserted that such failure to allow withdrawal of de oficio
counsel could ordinarily be characterized as a grave abuse of discretion
correctible by certiorari. There is, however, the overriding concern for the
right to counsel of the accused that must be taken seriously into
consideration. In appropriate cases, it should tilt the balance. This is not
one of them. What is easily discernible was the obvious reluctance of
petitioner to comply with the responsibilities incumbent on the counsel de
oficio. Then, too, even on the assumption that he continues in his
position, his volume of work is likely to be very much less at present.
There is not now the slightest pretext for him to shirk an obligation a
member of the bar, who expects to remain in good standing, should fulfill.
The petition is clearly without merit.
According to the undisputed facts, petitioner, on October 13, 1964, was
appointed Election Registrar for the Municipality of Cadiz, Province of
Negros Occidental. Then and there, he commenced to discharge its
duties. As he was counsel de parte for one of the accused in a case
pending in the sala of respondent Judge, he filed a motion to withdraw as
such. Not only did respondent Judge deny such motion, but he also
appointed him counsel de oficio for the two defendants. Subsequently, on
November 3, 1964, petitioner filed an urgent motion to be allowed to
withdraw as counsel de oficio, premised on the policy of the Commission
on Elections to require full time service as well as on the volume or
pressure of work of petitioner, which could prevent him from handling
adequately the defense. Respondent Judge, in the challenged order of
November 6, 1964, denied said motion. A motion for reconsideration
having proved futile, he instituted this certiorari proceeding.3
As noted at the outset, the petition must fail.
1. The assailed order of November 6, 1964 denying the urgent motion of
petitioner to withdraw as counsel de oficio speaks for itself. It began with
a reminder that a crime was allegedly committed on February 17, 1962,
with the proceedings having started in the municipal court of Cadiz on
July 11, 1962. Then respondent Judge spoke of his order of October 16,
1964 which reads thus: "In view of the objection of the prosecution to the
143
motion for postponement of October 15, 1964 (alleging that counsel for
the accused cannot continue appearing in this case without the express
authority of the Commission on Elections); and since according to the
prosecution there are two witnesses who are ready to take the stand,
after which the government would rest, the motion for postponement is
denied. When counsel for the accused assumed office as Election
Registrar on October 13, 1964, he knew since October 2, 1964 that the
trial would be resumed today. Nevertheless, in order not to prejudice the
civil service status of counsel for the accused, he is hereby designated
counsel de oficio for the accused. The defense obtained postponements
on May 17, 1963, June 13, 1963, June 14, 1963, October 28, 1963,
November 27, 1963, February 11, 1964, March 9, 1964, June 8, 1964
July 26, 1964, and September 7, 1964."4 Reference was then made to
another order of February 11, 1964: "Upon petition of Atty. Adelino H.
Ledesma, alleging indisposition, the continuation of the trial of this case is
hereby transferred to March 9, 1964 at 8:30 in the morning. The defense
is reminded that at its instance, this case has been postponed at least
eight (8) times, and that the government witnesses have to come all the
way from Manapala."5 After which, it was noted in such order that there
was no incompatibility between the duty of petitioner to the accused and
to the court and the performance of his task as an election registrar of the
Commission on Elections and that the ends of justice "would be served
by allowing and requiring Mr. Ledesma to continue as counsel de oficio,
since the prosecution has already rested its case."6
2. What is readily apparent therefore, is that petitioner was less than duly
mindful of his obligation as counsel de oficio. He ought to have known
that membership in the bar is a privilege burdened with conditions. It
could be that for some lawyers, especially the neophytes in the
profession, being appointed counsel de oficio is an irksome chore. For
those holding such belief, it may come as a surprise that counsel of
repute and of eminence welcome such an opportunity. It makes even
more manifest that law is indeed a profession dedicated to the ideal of
service and not a mere trade. It is understandable then why a high
degree of fidelity to duty is required of one so designated. A recent
statement of the doctrine is found in People v. Daban:7 "There is need
anew in this disciplinary proceeding to lay stress on the fundamental
postulate that membership in the bar carries with it a responsibility to live
up to its exacting standard. The law is a profession, not a trade or a craft.
Those enrolled in its ranks are called upon to aid in the performance of
one of the basic purposes of the State, the administration of justice. To
avoid any frustration thereof, especially in the case of an indigent
defendant, a lawyer may be required to act as counsel de oficio. The fact
that his services are rendered without remuneration should not occasion
a diminution in his zeal. Rather the contrary. This is not, of course, to
ignore that other pressing matters do compete for his attention. After all,
he has his practice to attend to. That circumstance possesses a high
degree of relevance since a lawyer has to live; certainly he cannot afford
either to neglect his paying cases. Nonetheless, what is incumbent upon
him as counsel de oficio must be fulfilled."8
So it has been from the 1905 decision of In re Robles Lahesa,9 where
respondent was de oficio counsel, the opinion penned by Justice Carson
making clear: "This Court should exact from its officers and subordinates
the most scrupulous performance of their official duties, especially when
negligence in the performance of those duties necessarily results in
delays in the prosecution of criminal cases ...."10 Justice Sanchez in
People v. Estebia11 reiterated such a view in these words: "It is true that
he is a court-appointed counsel. But we do say that as such counsel de
oficio, he has as high a duty to the accused as one employed and paid by
defendant himself. Because, as in the case of the latter, he must exercise
his best efforts and professional ability in behalf of the person assigned to
his care. He is to render effective assistance. The accused-defendant
expects of him due diligence, not mere perfunctory representation. For,
indeed a lawyer who is a vanguard in the bastion of justice is expected to
have a bigger dose of social conscience and a little less of self-
interest."12
The weakness of the petition is thus quite evident.
3. If respondent Judge were required to answer the petition, it was only
due to the apprehension that considering the frame of mind of a counsel
loath and reluctant to fulfill his obligation, the welfare of the accused
could be prejudiced. His right to counsel could in effect be rendered
nugatory. Its importance was rightfully stressed by Chief Justice Moran in
People v. Holgado in these words: "In criminal cases there can be no fair
hearing unless the accused be given an opportunity to be heard by
counsel. The right to be heard would be of little avail if it does not include
the right to be heard by counsel. Even the most intelligent or educated
man may have no skill in the science of law, particularly in the rules of
procedure, and; without counsel, he may be convicted not because he is
guilty but because he does not know how to establish his innocence. And
this can happen more easily to persons who are ignorant or uneducated.
It is for this reason that the right to be assisted by counsel is deemed so
important that it has become a constitutional right and it is so
implemented that under rules of procedure it is not enough for the Court
to apprise an accused of his right to have an attorney, it is not enough to
ask him whether he desires the aid of an attorney, but it is essential that
144
the court should assign one de oficio for him if he so desires and he is
poor or grant him a reasonable time to procure an attorney of his
own."13 So it was under the previous Organic Acts.14 The present
Constitution is even more emphatic. For, in addition to reiterating that the
accused "shall enjoy the right to be heard by himself and counsel,"15
there is this new provision: "Any person under investigation for the
commission of an offense shall have the right to remain silent and to
counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used
against him. Any confession obtained in violation of this section shall be
inadmissible in evidence."16
Thus is made manifest the indispensable role of a member of the Bar in
the defense of an accused. Such a consideration could have sufficed for
petitioner not being allowed to withdraw as counsel de oficio. For he did
betray by his moves his lack of enthusiasm for the task entrusted to him,
to put matters mildly. He did point though to his responsibility as an
election registrar. Assuming his good faith, no such excuse could be
availed now. There is not likely at present, and in the immediate future,
an exorbitant demand on his time. It may likewise be assumed,
considering what has been set forth above, that petitioner would exert
himself sufficiently to perform his task as defense counsel with
competence, if not with zeal, if only to erase doubts as to his fitness to
remain a member of the profession in good standing. The admonition is
ever timely for those enrolled in the ranks of legal practitioners that there
are times, and this is one of them, when duty to court and to client takes
precedence over the promptings of self-interest.
WHEREFORE, the petition for certiorari is dismissed. Costs against
petitioner.
THIRD DIVISION
A.C. No. 7399 August 25, 2009
ANTERO J. POBRE, Complainant,
vs.
Sen. MIRIAM DEFENSOR-SANTIAGO, Respondent.
DECISION
VELASCO, JR., J.:
In his sworn letter/complaint dated December 22, 2006, with enclosures,
Antero J. Pobre invites the Court’s attention to the following excerpts of
Senator Miriam Defensor-Santiago’s speech delivered on the Senate
floor:
x x x I am not angry. I am irate. I am foaming in the mouth. I am
homicidal. I am suicidal. I am humiliated, debased, degraded. And I am
not only that, I feel like throwing up to be living my middle years in a
country of this nature. I am nauseated. I spit on the face of Chief Justice
Artemio Panganiban and his cohorts in the Supreme Court, I am no
longer interested in the position [of Chief Justice] if I was to be
surrounded by idiots. I would rather be in another environment but not in
the Supreme Court of idiots x x x.
To Pobre, the foregoing statements reflected a total disrespect on the
part of the speaker towards then Chief Justice Artemio Panganiban and
the other members of the Court and constituted direct contempt of court.
Accordingly, Pobre asks that disbarment proceedings or other disciplinary
actions be taken against the lady senator.
In her comment on the complaint dated April 25, 2007, Senator Santiago,
through counsel, does not deny making the aforequoted statements. She,
however, explained that those statements were covered by the
constitutional provision on parliamentary immunity, being part of a speech
she delivered in the discharge of her duty as member of Congress or its
committee. The purpose of her speech, according to her, was to bring out
in the open controversial anomalies in governance with a view to future
remedial legislation. She averred that she wanted to expose what she
believed "to be an unjust act of the Judicial Bar Council [JBC]," which,
after sending out public invitations for nomination to the soon to-be
vacated position of Chief Justice, would eventually inform applicants that
only incumbent justices of the Supreme Court would qualify for
nomination. She felt that the JBC should have at least given an advanced
advisory that non-sitting members of the Court, like her, would not be
considered for the position of Chief Justice.
The immunity Senator Santiago claims is rooted primarily on the
provision of Article VI, Section 11 of the Constitution, which provides: "A
Senator or Member of the House of Representative shall, in all offenses
punishable by not more than six years imprisonment, be privileged from
arrest while the Congress is in session. No member shall be
145
questioned nor be held liable in any other place for any speech or
debate in the Congress or in any committee thereof." Explaining the
import of the underscored portion of the provision, the Court, in Osmeña,
Jr. v. Pendatun, said:
Our Constitution enshrines parliamentary immunity which is a
fundamental privilege cherished in every legislative assembly of the
democratic world. As old as the English Parliament, its purpose "is to
enable and encourage a representative of the public to discharge his
public trust with firmness and success" for "it is indispensably necessary
that he should enjoy the fullest liberty of speech and that he should be
protected from resentment of every one, however, powerful, to whom the
exercise of that liberty may occasion offense." 1
As American jurisprudence puts it, this legislative privilege is founded
upon long experience and arises as a means of perpetuating inviolate the
functioning process of the legislative department. Without parliamentary
immunity, parliament, or its equivalent, would degenerate into a polite
and ineffective debating forum. Legislators are immune from deterrents to
the uninhibited discharge of their legislative duties, not for their private
indulgence, but for the public good. The privilege would be of little value if
they could be subjected to the cost and inconvenience and distractions of
a trial upon a conclusion of the pleader, or to the hazard of a judgment
against them based upon a judge’s speculation as to the motives. 2
This Court is aware of the need and has in fact been in the forefront in
upholding the institution of parliamentary immunity and promotion of free
speech. Neither has the Court lost sight of the importance of the
legislative and oversight functions of the Congress that enable this
representative body to look diligently into every affair of government,
investigate and denounce anomalies, and talk about how the country and
its citizens are being served. Courts do not interfere with the legislature or
its members in the manner they perform their functions in the legislative
floor or in committee rooms. Any claim of an unworthy purpose or of the
falsity and mala fides of the statement uttered by the member of the
Congress does not destroy the privilege.3 The disciplinary authority of the
assembly4 and the voters, not the courts, can properly discourage or
correct such abuses committed in the name of parliamentary immunity. 5
For the above reasons, the plea of Senator Santiago for the dismissal of
the complaint for disbarment or disciplinary action is well taken. Indeed,
her privilege speech is not actionable criminally or in a disciplinary
proceeding under the Rules of Court. It is felt, however, that this could not
be the last word on the matter.
The Court wishes to express its deep concern about the language
Senator Santiago, a member of the Bar, used in her speech and its effect
on the administration of justice. To the Court, the lady senator has
undoubtedly crossed the limits of decency and good professional
conduct. It is at once apparent that her statements in question were
intemperate and highly improper in substance. To reiterate, she was
quoted as stating that she wanted "to spit on the face of Chief Justice
Artemio Panganiban and his cohorts in the Supreme Court," and calling
the Court a "Supreme Court of idiots."
The lady senator alluded to In Re: Vicente Sotto.6 We draw her attention
to the ensuing passage in Sotto that she should have taken to heart in
the first place:
x x x [I]f the people lose their confidence in the honesty and integrity of
this Court and believe that they cannot expect justice therefrom, they
might be driven to take the law into their own hands, and disorder and
perhaps chaos would be the result. 1avvphi1
No lawyer who has taken an oath to maintain the respect due to the
courts should be allowed to erode the people’s faith in the judiciary. In
this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon
11 of the Code of Professional Responsibility, which respectively provide:
Canon 8, Rule 8.01.––A lawyer shall not, in his professional dealings, use
language which is abusive, offensive or otherwise improper.
Canon 11.––A lawyer shall observe and maintain the respect due to the
courts and to the judicial officers and should insist on similar conduct by
others.
Senator/Atty. Santiago is a cut higher than most lawyers. Her
achievements speak for themselves. She was a former Regional Trial
Court judge, a law professor, an oft-cited authority on constitutional and
international law, an author of numerous law textbooks, and an elected
senator of the land. Needless to stress, Senator Santiago, as a member
of the Bar and officer of the court, like any other, is duty-bound to uphold
the dignity and authority of this Court and to maintain the respect due its
members. Lawyers in public service are keepers of public faith and are
burdened with the higher degree of social responsibility, perhaps higher
than their brethren in private practice.7Senator Santiago should have
known, as any perceptive individual, the impact her statements would
make on the people’s faith in the integrity of the courts.
146
As Senator Santiago alleged, she delivered her privilege speech as a
prelude to crafting remedial legislation on the JBC. This allegation strikes
the Court as an afterthought in light of the insulting tenor of what she
said. We quote the passage once more:
x x x I am not angry. I am irate. I am foaming in the mouth. I am
homicidal. I am suicidal. I am humiliated, debased, degraded. And I am
not only that, I feel like throwing up to be living my middle years in a
country of this nature. I am nauseated. I spit on the face of Chief Justice
Artemio Panganiban and his cohorts in the Supreme Court, I am no
longer interested in the position [of Chief Justice] if I was to be
surrounded by idiots. I would rather be in another environment but not in
the Supreme Court of idiots x x x. (Emphasis ours.)
A careful re-reading of her utterances would readily show that her
statements were expressions of personal anger and frustration at not
being considered for the post of Chief Justice. In a sense, therefore, her
remarks were outside the pale of her official parliamentary functions.
Even parliamentary immunity must not be allowed to be used as a vehicle
to ridicule, demean, and destroy the reputation of the Court and its
magistrates, nor as armor for personal wrath and disgust. Authorities are
agreed that parliamentary immunity is not an individual privilege accorded
the individual members of the Parliament or Congress for their personal
benefit, but rather a privilege for the benefit of the people and the
institution that represents them.
To be sure, Senator Santiago could have given vent to her anger without
indulging in insulting rhetoric and offensive personalities.
Lest it be overlooked, Senator Santiago’s outburst was directly traceable
to what she considered as an "unjust act" the JBC had taken in
connection with her application for the position of Chief Justice. But while
the JBC functions under the Court’s supervision, its individual members,
save perhaps for the Chief Justice who sits as the JBC’s ex-
officio chairperson,8 have no official duty to nominate candidates for
appointment to the position of Chief Justice. The Court is, thus, at a loss
to understand Senator Santiago’s wholesale and indiscriminate assault
on the members of the Court and her choice of critical and defamatory
words against all of them.
At any event, equally important as the speech and debate clause of Art.
VI, Sec. 11 of the Constitution is Sec. 5(5) of Art. VIII of the Constitution
that provides:
Section 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of the law, the Integrated Bar, and legal
assistance to the underprivileged. (Emphasis ours.)
The Court, besides being authorized to promulgate rules concerning
pleading, practice, and procedure in all courts, exercises specific
authority to promulgate rules governing the Integrated Bar with the end in
view that the integration of the Bar will, among other things:
(4) Shield the judiciary, which traditionally cannot defend itself except
within its own forum, from the assaults that politics and self interest may
level at it, and assist it to maintain its integrity, impartiality and
independence;
xxxx
(11) Enforce rigid ethical standards x x x.9
In Re: Letter Dated 21 February 2005 of Atty. Noel S. Sorreda, 10 we
reiterated our pronouncement in Rheem of the Philippines v. Ferrer 11 that
the duty of attorneys to the courts can only be maintained by rendering
no service involving any disrespect to the judicial office which they are
bound to uphold. The Court wrote in Rheem of the Philippines:
x x x As explicit is the first canon of legal ethics which pronounces that
"[i]t is the duty of a lawyer to maintain towards the Courts a respectful
attitude, not for the sake of the temporary incumbent of the judicial office,
but for the maintenance of its supreme importance." That same canon, as
a corollary, makes it peculiarly incumbent upon lawyers to support the
courts against "unjust criticism and clamor." And more. The attorney’s
oath solemnly binds him to a conduct that should be "with all good fidelity
x x x to the courts."
Also, in Sorreda, the Court revisited its holding in Surigao Mineral
Reservation Board v. Cloribel12 that:
A lawyer is an officer of the courts; he is, "like the court itself, an
instrument or agency to advance the ends of justice." His duty is to
147
uphold the dignity and authority of the courts to which he owes fidelity,
"not to promote distrust in the administration of justice." Faith in the
courts, a lawyer should seek to preserve. For, to undermine the judicial
edifice "is disastrous to the continuity of government and to the
attainment of the liberties of the people." Thus has it been said of a
lawyer that "[a]s an officer of the court, it is his sworn and moral duty to
help build and not destroy unnecessarily that high esteem and regard
towards the courts so essential to the proper administration of justice." 13
The lady senator belongs to the legal profession bound by the exacting
injunction of a strict Code. Society has entrusted that profession with the
administration of the law and dispensation of justice. Generally speaking,
a lawyer holding a government office may not be disciplined as a member
of the Bar for misconduct committed while in the discharge of official
duties, unless said misconduct also constitutes a violation of his/her oath
as a lawyer.14
Lawyers may be disciplined even for any conduct committed in their
private capacity, as long as their misconduct reflects their want of probity
or good demeanor,15 a good character being an essential qualification for
the admission to the practice of law and for continuance of such privilege.
When the Code of Professional Responsibility or the Rules of Court
speaks of "conduct" or "misconduct," the reference is not confined to
one’s behavior exhibited in connection with the performance of lawyers’
professional duties, but also covers any misconduct, which––albeit
unrelated to the actual practice of their profession––would show them to
be unfit for the office and unworthy of the privileges which their license
and the law invest in them.16
This Court, in its unceasing quest to promote the people’s faith in courts
and trust in the rule of law, has consistently exercised its disciplinary
authority on lawyers who, for malevolent purpose or personal malice,
attempt to obstruct the orderly administration of justice, trifle with the
integrity of courts, and embarrass or, worse, malign the men and women
who compose them. We have done it in the case of former Senator
Vicente Sotto in Sotto, in the case of Atty. Noel Sorreda in Sorreda, and
in the case of Atty. Francisco B. Cruz in Tacordan v. Ang 17 who
repeatedly insulted and threatened the Court in a most insolent manner.
The Court is not hesitant to impose some form of disciplinary sanctions
on Senator/Atty. Santiago for what otherwise would have constituted an
act of utter disrespect on her part towards the Court and its members.
The factual and legal circumstances of this case, however, deter the
Court from doing so, even without any sign of remorse from her. Basic
constitutional consideration dictates this kind of disposition.
We, however, would be remiss in our duty if we let the Senator’s
offensive and disrespectful language that definitely tended to denigrate
the institution pass by. It is imperative on our part to re-instill in
Senator/Atty. Santiago her duty to respect courts of justice, especially this
Tribunal, and remind her anew that the parliamentary non-accountability
thus granted to members of Congress is not to protect them against
prosecutions for their own benefit, but to enable them, as the people’s
representatives, to perform the functions of their office without fear of
being made responsible before the courts or other forums outside the
congressional hall.18 It is intended to protect members of Congress
against government pressure and intimidation aimed at influencing the
decision-making prerogatives of Congress and its members.
The Rules of the Senate itself contains a provision on Unparliamentary
Acts and Language that enjoins a Senator from using, under any
circumstance, "offensive or improper language against another Senator
or against any public institution."19 But as to Senator Santiago’s
unparliamentary remarks, the Senate President had not apparently called
her to order, let alone referred the matter to the Senate Ethics Committee
for appropriate disciplinary action, as the Rules dictates under such
circumstance.20 The lady senator clearly violated the rules of her own
chamber. It is unfortunate that her peers bent backwards and avoided
imposing their own rules on her.
Finally, the lady senator questions Pobre’s motives in filing his complaint,
stating that disciplinary proceedings must be undertaken solely for the
public welfare. We cannot agree with her more. We cannot overstress
that the senator’s use of intemperate language to demean and denigrate
the highest court of the land is a clear violation of the duty of respect
lawyers owe to the courts.21
Finally, the Senator asserts that complainant Pobre has failed to prove
that she in fact made the statements in question. Suffice it to say in this
regard that, although she has not categorically denied making such
statements, she has unequivocally said making them as part of her
privilege speech. Her implied admission is good enough for the Court.
WHEREFORE, the letter-complaint of Antero J. Pobre against
Senator/Atty. Miriam Defensor-Santiago is, conformably to Art. VI, Sec.
11 of the Constitution, DISMISSED. SO ORDERED.
148
 THIRD DIVISION
A.C. No. 7547 September 4, 2009
GREGORY U. CHAN, Complainant,
vs.
NLRC COMMISSIONER ROMEO L. GO and ATTY. JOSE RAULITO E.
PARAS, Respondents.
DECISION
YNARES-SANTIAGO, J.:
In a verified Complaint1 dated June 5, 2007, complainant Gregory U.
Chan prayed for the disbarment or imposition of proper disciplinary
sanctions upon respondents Commissioner Romeo Go of the National
Labor Relations Commission (NLRC) and Atty. Jose Raulito E. Paras for
perpetrating acts unbecoming and degrading to the legal profession, in
violation of the Code of Professional Responsibility, 2 Canons of
Professional Ethics,3 and the Rules of Court.4
Complainant alleged that respondents are influence peddlers who pride
themselves in being able to direct the outcome of cases pending before
the NLRC; that respondents belittled and denigrated the nobility of the
legal profession by indicating that decisions of the NLRC are merely
drafted by humble secretaries or clerks who write in accordance to their
mandate; and that respondents attempted to extort money from him.
The present controversy stemmed from an illegal dismissal case5 filed by
Susan Que Tiu against complainant and his companies. On July 18,
2003, the labor arbiter6 ruled in favor of Tiu and ordered her employers to
pay backwages, separation pay, unpaid commissions, and 10%
attorney’s fees.7 Pending resolution of their appeal before the NLRC,
complainant alleged that respondents Go and Paras attempted to extort
money from him in behalf of Tiu. He narrated that respondent Go
arranged for meetings at expensive restaurants to wit:
 First Meeting on September 16, 2003
at Yuraken Japanese Restaurant, Diamond Hotel, Manila
Complainant alleged that it was during this dinner when
respondents were first introduced to him, his wife Jenny, his
brother Glenn, and the latter’s mother-in-law Mrs. Ban Ha; that
respondent Go claimed that he is a very powerful "high ranking"
commissioner at the NLRC; that respondents were personally
overseeing the developments of the labor case although it was
pending before another division; that it was merely respondent
Go’s secretary or clerk who would be drafting the decision of the
said case; and that respondents told him to simply give in to Tiu’s
demands.8
 Second Meeting on September 26, 2003
at Akiga Japanese Restaurant, Mandaluyong
Complainant alleged that respondents brought with them a
certain Mr. Alfredo Lim, a former schoolmate of respondent Go
and a godfather of Tiu; that Lim demanded the settlement of Tiu’s
claims; that he illustrated he is not a bad employer Tiu painted
him to be as the latter even invited him to her wedding; that
respondent Go offered him the services of respondent Paras as
legal counsel; and that respondents asked him to give them
pertinent documents relating to the labor case in their next
meeting.9
 Third Meeting on October 20, 2003
at Korean Village Restaurant, Manila
Complainant alleged that his group brought their company
accountant Ms. Leah Pascual, while respondents brought Atty.
Jessie Andres who was introduced to be connected with then
Senator Noli De Castro; that he showed the group the company
documents proving payment to Tiu of her sales commission; that
respondents did not bother expressing interest in examining the
documents; that respondent Go left the dinner early for another
business commitment; and that the remaining people instead
discussed his possible support for Sen. De Castro’s campaign.10
 Fourth Meeting on December 2, 2003
at Akiga Japanese Restaurant, Mandaluyong
Complainant alleged that he did not personally attend the meeting
to avoid a confrontation with Tiu; that Jenny, Glenn, and Pascual
met with respondents, Lim, Tiu, and her husband; that
respondent Go dismissed the documents presented by Jenny and
claimed that it was his tactic for Tiu to submit a sur-rejoinder with
photo-attachments11 showing MCC Industrial Sales, Corp. and
149
 Sanyo Seiki Industrial Sales, Corp. conducting business in one
office; that respondent Go goaded Jenny to give in to Tiu’s
demands as the latter was suffering from cancer; that Jenny
refused the demands, prompting her to lose her appetite and walk
out to regain her composure; and that respondent and his
companions simply enjoyed their free sumptuous meals.12
 Fifth Meeting on February 24, 2004
at California Pizza Kitchen, Shangri-La Plaza Mall, Mandaluyong
Complainant alleged that his wife Jenny again met with
respondent Go, Mr. Lim, Ms. Que Tiu and her husband; that Tiu
lowered the settlement amount to P450,000.00; that Jenny
insisted that Tiu’s claim should not exceed P198,000.00; and that
respondent Go prevented Jenny from walking out of their meeting
with assurances that he will further convince Tiu. 13
 Sixth Meeting on March 3, 2004
at Palm Court Café, Diamond Hotel, Manila
Complainant alleged that he, together with his wife Jenny, and
brother Glenn met with respondents Paras and Go and his wife;
and that respondent Go assured them that it’s going to be their
last meeting and Tiu will just settle for P300,000.00. 14
 Seventh Meeting on October 4, 2004
at Una Mas, Greenhills
Complainant alleged that respondent Paras asked for another
dinner appointment to which he sent his brother Glenn to attend;
that respondent Paras disclosed during the meeting that the
matter was no longer in their hands as they decided not to push
through with the deal with Tiu; that Glenn was shocked at
respondent’s fraudulent duplicity that he left the restaurant in a
huff after paying the bill.15
As proof of these meetings, complainant attached receipts16 for the meals
ordered at the above-mentioned establishments and affidavits of Jenny
Chan,17 Leah Pascual,18 and Glenn Chan,19 recounting the matters that
transpired therein.
On September 10, 2004, the NLRC affirmed the Labor Arbiter’s Decision,
but removed the award of separation pay and ordered complainant to
reinstate Tiu to her former position without loss of seniority rights and
privileges.20 On July 12, 2005, the NLRC denied the parties’ Motions for
Reconsideration and sustained its earlier Resolution. 21
On June 5, 2007, or simultaneously with the filing of the present
administrative complaint, complainant filed a case for Grave
Misconduct22 against respondents Go and Paras with the Office of the
Ombudsman, alleging the same set of facts in the administrative case.
Previously, complainant also filed an Estafa case23 against Susan Que
Tiu, Ramon Givertz, and Zed Metal and Construction Corporation.
However, it was dismissed by the Office of the City Prosecutor of Manila
in a Resolution24dated May 22, 2006, for insufficiency of evidence. 1avvphi1
Thereafter, in April 2007, respondent Paras filed a complaint against
complainant Chan for Grave Oral Slander, Serious Slander by Deed,
Grave Threats, and Alarms and Scandals25 with the Office of the City
Prosecutor of Mandaluyong. He alleged that without provocation,
complainant suddenly pushed his left shoulder and hurled insults and
invectives when his group bumped onto him on March 31, 2007 at Fish
and Co. restaurant in Shangri-La Mall at Mandaluyong City.
On July 9, 2007, complainant filed a Manifestation26 stating that he
received death threats27 about two weeks after filing the present
complaint.
On July 23, 2007, the Court of Appeals affirmed the Resolutions of the
NLRC, with modification that the total monetary award should be
P737,757.41.28 Complainant and his companies thus filed a Petition for
Review on Certiorari with this Court which is still pending resolution. 29
In his Comment,30 respondent Paras alleged that the present complaint,
like the Ombudsman case for Grave Misconduct, was filed by
complainant to gain leverage against him for the criminal case (I.S. No.
07-71604-D) he filed against the latter. Paras denied conspiring with Go
in the commission of the acts complained of. He likewise denied knowing
Tiu or the labor case. As for the enumerated meetings, respondent Paras
alleged that he was not present on September 16, 2003, December 2,
2003, and February 24, 2004; that he merely fetched respondent Go at
the meeting on September 26, 2003; that he was present during the
October 20, 2003 meeting, but deemed the same to be social dinner
rather than a conciliation/mediation for settlement; that during the March
3, 2004 meeting, he merely accompanied respondent Go and his wife
150
because they previously came from an earlier dinner; that it was
complainant’s brother Glenn who asked for an appointment on October 4,
2004 and offered to secure his services as their counsel for the labor
case against Tiu; and that days later, Glenn even asked for his services
regarding a collection case which he declined because it was his law
firm’s policy not to accept simple collection cases.
Respondent Paras also alleged that complainant’s charge of violation of
Rule 6.02, Canon 6 of the Code of Professional Responsibility is
misplaced as he was not a lawyer in the government service at the time
material to the acts complained of.
Meanwhile, respondent Go labelled as blatant lies the allegations of Chan
in his complaint. He alleged that he met Chan, Jenny, and Glenn, through
his mother’s close friends Yek Ti L. Chua and Ban Ha; that he came to
know of the labor case of Susan Que Tiu during a casual bridge session
with the latter’s godfather Alfredo Lim; that it was complainant who
organized the meetings and persisted in asking his help regarding the
said labor case; that he refused to help complainant because he would
not want to influence his colleagues in the NLRC to reverse their
judgments; that he did not impress upon complainant and his family that
he is engaged in influence peddling; that when he relayed to Lim
complainant’s intention to amicably settle the case, Lim agreed to be
introduced to complainant; that he never introduced respondent Paras as
his associate; that he only assisted the parties during the conciliation
meetings but never coerced complainant to give in to the demands of
Lim; and that he did not extort money from complainant.
To substantiate his claim, Go submitted affidavits of Yek Ti L.
Chua;31 Evangeline C. Apanay32 and Marina R. Taculao,33 both of whom
are administrative personnel assigned at his office in the NLRC.
The duty of the Court towards members of the bar is not only limited to
the administration of discipline to those found culpable of misconduct but
also to the protection of the reputation of those frivolously or maliciously
charged. In disbarment proceedings, the burden of proof is upon the
complainant and this Court will exercise its disciplinary power only if the
complainant establishes his case by clear, convincing and satisfactory
evidence.34
After a careful study of the instant case, we find no sufficient evidence to
support complainant’s claim. Except for complainant’s bare allegations,
there is no proof that respondents engaged in influence peddling,
extortion, or in any unlawful, dishonest, immoral, or deceitful conduct. It is
axiomatic that he who alleges the same has the onus of validating it. 35 1avvph!1
We note that the labor case of Tiu has already been decided in the
latter’s favor prior the alleged meetings. Even after the said meetings, the
NLRC still affirmed the decision of the labor arbiter which was adverse to
herein complainant and his companies. If respondent Go really agreed to
influence the outcome of the case, then the results would have been
otherwise.
In addition, the receipts presented by complainant do not necessarily
prove the presence of respondents in said meetings. They only show that
certain persons went to the aforenamed restaurants to eat and meet.
However, it could not be said with certainty that respondents were among
them – based only on the receipts presented.
Moreover, the alleged representations by respondent Go regarding the
drafting of NLRC decisions were refuted by the affidavits executed by
Apanay and Taculao. Also, no proof was presented in support of the
allegation regarding the belittling or denigration of the legal profession
and the NLRC. 1avvphi1
Significantly, the present complaint was filed only after the lapse of
almost four years since the alleged extortion was made or two years
since the resolution of the labor case by the NLRC. Complainant did not
offer any reason for the belated filing of the case thus giving the
impression that it was filed as a leverage against the case for Grave Oral
Slander, Serious Slander by Deed, Grave Threats, and Alarms and
Scandals (I.S. No. 07-71604-D) filed by Paras against complainant.
Also, the ruling of the labor arbiter was favorable to Tiu; hence, there was
no need for respondents to get in touch with complainant to settle the
case in Tiu’s behalf. In contrast, complainant who was the defeated party
in the labor case has more reason to seek avenues to convince Tiu to
accept a lower settlement amount. This Court is thus convinced that it
was the complainant who arranged to meet with respondent Go and not
the contrary as he averred.
We cannot lend credence to complainant’s allegation that he or his group
met with respondents six or seven times. Complainant and his group
were allegedly angered, insulted, and offended by respondents yet they
still agreed to foot the bills for the meals. Even after the denial by the
NLRC of their motion for reconsideration, with nothing more to discuss,
151
complainants still allegedly met with respondents. These actions are not
in accord with human behavior, logic, and common sense. At this time,
complainant would have known that respondents could not deliver on
their alleged promises to influence the outcome of the case in his favor;
that they were only trying to extort money from him, and abusing him for
free meals. As such, he should have stopped meeting them, or
immediately filed criminal and/or administrative charges against them, or
at the least, refused to foot the bill for their meals.
This Court agrees with respondent Paras that complainant’s charge of
violation of Rule 6.02, Canon 6 of the Code of Professional Responsibility
is misplaced because he was not a government lawyer at the time
material to the acts complained of. This fact is certified36 by the Training
and Administrative Manager37 of Lepanto Consolidated Mining Co. where
respondent Paras was employed as Assistant Manager, then as Manager
for Legal Services and Government Affairs from July 31, 2000 to March
31, 2004.
WHEREFORE, the complaint against respondents Atty. Jose Raulito E.
Paras and NLRC Commissioner Romeo Go is DISMISSED for lack of
merit.
SO ORDERED.
EN BANC
A.M. No. 08-6-352-RTC August 19, 2009
QUERY OF ATTY. KAREN M. SILVERIO-BUFFE, FORMER Clerk of
Court - BRANCH 81, ROMBLON, ROMBLON - ON THE PROHIBITION
FROM ENGAGING IN THE PRIVATE PRACTICE OF LAW.
DECISION
BRION, J.:
This administrative matter started as a letter-query dated March 4, 2008
of Atty. Karen M. Silverio-Buffe (Atty. Buffe) addressed to the Office of
the Court Administrator, which query the latter referred to the Court for
consideration. In the course of its action on the matter, the Court
discovered that the query was beyond pure policy interpretation and
referred to the actual situation of Atty. Buffe, and, hence, was a matter
that required concrete action on the factual situation presented.
The query, as originally framed, related to Section 7(b)(2) of Republic Act
(R.A.) No. 6713, as amended (or the Code of Conduct and Ethical
Standards for Public Officials and Employees). This provision places a
limitation on public officials and employees during their incumbency, and
those already separated from government employment for a period of
one (1) year after separation, in engaging in the private practice of their
profession. Section 7(b)(2) of R.A. No. 6713 provides:
SECTION 7. Prohibited Acts and Transactions. – In addition to acts
and omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute prohibited
acts and transactions of any public official and employee and are hereby
declared to be unlawful:
xxx
(b) Outside employment and other activities related thereto. – Public
officials and employees during their incumbency shall not:
xxx
(2) Engage in the private practice of their profession unless
authorized by the Constitution or law, provided, that such practice
will not conflict or tend to conflict with their official functions; or
xxx
These prohibitions shall continue to apply for a period of one (1) year
after resignation, retirement, or separation from public office, except in
the case of subparagraph (b) (2) above, but the professional concerned
cannot practice his profession in connection with any matter before the
office he used to be with, in which case the one-year prohibition shall
likewise apply.
In her letter-query, Atty. Buffe posed these questions: "Why may an
incumbent engage in private practice under (b)(2), assuming the same
does not conflict or tend to conflict with his official duties, but a non-
incumbent like myself cannot, as is apparently prohibited by the last
paragraph of Sec. 7? Why is the former allowed, who is still occupying
the very public position that he is liable to exploit, but a non-incumbent
152
like myself – who is no longer in a position of possible abuse/exploitation
– cannot?"1
The query arose because Atty. Buffe previously worked as Clerk of Court
VI of the Regional Trial Court (RTC), Branch 81 of Romblon; she
resigned from her position effective February 1, 2008. Thereafter (and
within the one-year period of prohibition mentioned in the above-quoted
provision), she engaged in the private practice of law by appearing as
private counsel in several cases before RTC-Branch 81 of Romblon.
Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives preferential
treatment to an incumbent public employee, who may engage in the
private practice of his profession so long as this practice does not conflict
or tend to conflict with his official functions. In contrast, a public official or
employee who has retired, resigned, or has been separated from
government service like her, is prohibited from engaging in private
practice on any matter before the office where she used to work, for a
period of one (1) year from the date of her separation from government
employment.
Atty. Buffe further alleged that the intention of the above prohibition is to
remove the exercise of clout, influence or privity to insider information,
which the incumbent public employee may use in the private practice of
his profession. However, this situation did not obtain in her case, since
she had already resigned as Clerk of Court of RTC-Branch 18 of
Romblon. She advanced the view that she could engage in the private
practice of law before RTC-Branch 81 of Romblon, so long as her
appearance as legal counsel shall not conflict or tend to conflict with her
former duties as former Clerk of Court of that Branch.
Then Deputy Court Administrator (now Court Administrator) Jose P.
Perez made the following observations when the matter was referred to
him:
The general intent of the law, as defined in its title is "to uphold the time-
honored principle of public office being a public trust." Section 4 thereof
provides for the norms of conduct of public officials and employees,
among others: (a) commitment to public interest; (b) professionalism; and
(c) justness and sincerity. Of particular significance is the statement
under professionalism that "[t]hey [public officials and employees] shall
endeavor to discourage wrong perceptions of their roles as dispensers or
peddlers of undue patronage.
Thus, it may be well to say that the prohibition was intended to avoid any
impropriety or the appearance of impropriety which may occur in any
transaction between the retired government employee and his former
colleagues, subordinates or superiors brought about by familiarity, moral
ascendancy or undue influence, as the case may be. 2 1avvphi1
Subsequently, in a Minute Resolution dated July 15, 2008, we resolved to
refer this case to the Office of the Chief Attorney (OCAT) for evaluation,
report and recommendation.3 The OCAT took the view that:
The premise of the query is erroneous. She interprets Section 7 (b) (2) as
a blanket authority for an incumbent clerk of court to practice law. Clearly,
there is a misreading of that provision of law. 4 and further observed:
The confusion apparently lies in the use of the term "such practice" after
the phrase "provided that." It may indeed be misinterpreted as modifying
the phrase "engage in the private practice of their profession" should be
prefatory sentence that public officials "during their incumbency shall not"
be disregarded. However, read in its entirety, "such practice" may only
refer to practice "authorized by the Constitution or law" or the exception
to the prohibition against the practice of profession. The term "law" was
intended by the legislature to include "a memorandum or a circular or an
administrative order issued pursuant to the authority of law."
xxx
The interpretation that Section 7 (b) (2) generally prohibits incumbent
public officials and employees from engaging in the practice of law, which
is declared therein a prohibited and unlawful act, accords with the
constitutional policy on accountability of public officers stated in Article XI
of the Constitution …
xxx
The policy thus requires public officials and employees to devote full time
public service so that in case of conflict between personal and public
interest, the latter should take precedence over the former. 5[Footnotes
omitted]
With respect to lawyers in the judiciary, the OCAT pointed to Section 5,
Canon 3 of the Code of Conduct for Court Personnel – the rule that deals
with outside employment by an incumbent judicial employee and which
limits such outside employment to one that "does not require the practice
153
of law."6 The prohibition to practice law with respect to any matter where
they have intervened while in the government service is reiterated in Rule
6.03, Canon 6 of the Code of Professional Responsibility, which governs
the conduct of lawyers in the government service.7
In view of the OCAT findings and recommendations, we issued
an En Banc Resolution dated November 11, 2008 directing the Court
Administrator to draft and submit to the Court a circular on the practice of
profession during employment and within one year from resignation,
retirement from or cessation of employment in the Judiciary. We likewise
required the Executive Judge of the RTC of Romblon to (i) verify if Atty.
Buffe had appeared as counsel during her incumbency as clerk of court
and after her resignation in February 2008, and (ii) submit to the Court a
report on his verification.8
In compliance with this our Resolution, Executive Judge Ramiro R.
Geronimo of RTC-Branch 81 of Romblon reported the following
appearances made by Atty. Buffe:
(1) Civil Case No. V-1564, entitled Oscar Madrigal Moreno, Jr. et al.
versus Leonardo M. Macalam, et al. on February 19, 2008, March 4,
2008, April 10, 2008 and July 9, 2008 as counsel for the plaintiffs;
(2) Civil Case No. V-1620, entitled Melchor M. Manal versus Zosimo
Malasa, et al., on (sic) February, 2008, as counsel for the plaintiff;
(3) Civil Case No. V-1396, entitled Solomon Y. Mayor versus Jose J.
Mayor, on February 21, 2008, as counsel for the plaintiff; and
(4) Civil Case No. V-1639, entitled Philippine National Bank versus Sps.
Mariano and Olivia Silverio, on April 11, 2008 and July 9, 2008, as
counsel for the defendants.
Atty. Buffe herself was furnished a copy of our November 11,
2008 En Banc Resolution and she filed a Manifestation (received by the
Court on February 2, 2009) acknowledging receipt of our November 11,
2008 Resolution. She likewise stated that her appearances are part of
Branch 81 records. As well, she informed the Court that she had
previously taken the following judicial remedies in regard to the above
query:
1. SCA No. 089119028 (Annex C), filed with Branch 54 of the
RTC Manila, which had been dismissed without prejudice on July
23, 2008 (Annex D) – a recourse taken when undersigned was
still a private practitioner;
2. SCA No. 08120423 (Annex A), filed with Branch 17 of the RTC
of Manila, which had been also dismissed (with or without
prejudice) on December 4, 2008 (Annex B) – a recourse taken
when undersigned was already a public prosecutor appearing
before the same Branch 81, after she took her oath of office as
such on August 15, 2008.[Emphasis supplied]
She also made known her intent to elevate the dismissal of the above
cases "so that eventually, the Honorable Supreme Court may put to rest
the legal issue/s presented in the above petitions which is, why is it that
R.A. No. 6713, Sec. 7 (b)(2) and last par. thereof, apparently contains an
express prohibition (valid or invalid) on the private practice of
undersigned’s law profession, before Branch 81, while on the other hand
not containing a similar, express prohibition in regard to undersigned’s
practice of profession, before the same court, as a public prosecutor –
within the supposedly restricted 1-year period?"
OUR ACTION AND RULING
Preliminary Considerations
As we stated at the outset, this administrative matter confronts us, not
merely with the task of determining how the Court will respond to the
query, both with respect to the substance and form (as the Court does
not give interpretative opinions9 but can issue circulars and regulations
relating to pleading, practice and procedure in all courts 10 and in the
exercise of its administrative supervision over all courts and personnel
thereof11), but also with the task of responding to admitted violations of
Section 7 (b)(2) of R.A. No. 6713 and to multiple recourses on the same
subject.
After our directive to the Office of the Court Administrator to issue a
circular on the subject of the query for the guidance of all personnel in the
Judiciary, we consider this aspect of the present administrative matter a
finished task, subject only to confirmatory closure when the OCA reports
the completion of the undertaking to us.
Atty. Buffe’s admitted appearance, before the very same branch she
served and immediately after her resignation, is a violation that we cannot
close our eyes to and that she cannot run away from under the cover of
154
the letter-query she filed and her petition for declaratory relief, whose
dismissal she manifested she would pursue up to our level. We note that
at the time she filed her letter-query (on March 4, 2008), Atty. Buffe had
already appeared before Branch 81 in at least three (3) cases. The terms
of Section 7 (b)(2) of R.A. No. 6713 did not deter her in any way and her
misgivings about the fairness of the law cannot excuse any resulting
violation she committed. In other words, she took the risk of appearing
before her own Branch and should suffer the consequences of the risk
she took.
Nor can she hide behind the two declaratory relief petitions she filed, both
of which were dismissed, and her intent to elevate the dismissal to this
Court for resolution. The first, filed before the RTC, Branch 54, Manila,
was dismissed on July 23, 2008 because the "court declined to exercise
the power to declare rights as prayed for in the petition, as any decision
that may be rendered will be inutile and will not generally terminate the
uncertainty or controversy."12The second, filed with the RTC, Branch 17,
Manila, was dismissed for being an inappropriate remedy after the
dismissal ordered by the RTC, Branch 54, Manila, on December 4,
2008.13 Under these circumstances, we see nothing to deter us from
ruling on Atty. Buffe’s actions, as no actual court case other than the
present administrative case, is now actually pending on the issue she
raised. On the contrary, we see from Atty. Buffe’s recourse to this Court
and the filing of the two declaratory petitions the intent to shop for a
favorable answer to her query. We shall duly consider this circumstance
in our action on the case.
A last matter to consider before we proceed to the merits of Atty. Buffe’s
actions relates to possible objections on procedural due process grounds,
as we have not made any formal directive to Atty. Buffe to explain why
she should not be penalized for her appearance before Branch 81 soon
after her resignation from that Branch. The essence of due process is the
grant of the opportunity to be heard; what it abhors is the lack of the
opportunity to be heard.14The records of this case show that Atty. Buffe
has been amply heard with respect to her actions. She was notified, and
she even responded to our November 11, 2008 directive for the
Executive Judge of the RTC of Romblon to report on Atty. Buffe’s
appearances before Branch 81; she expressly manifested that these
appearances were part of the Branch records. Her legal positions on
these appearances have also been expressed before this Court; first, in
her original letter-query, and subsequently, in her Manifestation. Thus, no
due process consideration needs to deter us from considering the legal
consequences of her appearances in her previous Branch within a year
from her resignation.
The Governing Law: Section 7 of R.A. No. 6713
Section 7 of R.A. No. 6713 generally provides for the prohibited acts and
transactions of public officials and employees. Subsection (b)(2) prohibits
them from engaging in the private practice of their profession during their
incumbency. As an exception, a public official or employee can engage in
the practice of his or her profession under the following conditions: first,
the private practice is authorized by the Constitution or by the law; and
second, the practice will not conflict, or tend to conflict, with his or her
official functions.
The Section 7 prohibitions continue to apply for a period of one year after
the public official or employee’s resignation, retirement, or separation
from public office, except for the private practice of profession under
subsection (b)(2), which can already be undertaken even within the one-
year prohibition period. As an exception to this exception, the one-year
prohibited period applies with respect to any matter before the office the
public officer or employee used to work with.
The Section 7 prohibitions are predicated on the principle that public
office is a public trust; and serve to remove any impropriety, real or
imagined, which may occur in government transactions between a former
government official or employee and his or her former colleagues,
subordinates or superiors. The prohibitions also promote the observance
and the efficient use of every moment of the prescribed office hours to
serve the public.15
Parenthetically, in the case of court employees, Section 7(b)(2) of R.A.
No. 6713 is not the only prohibition to contend with; Section 5, Canon 3 of
the Code of Conduct for Court Personnel also applies. The latter
provision provides the definitive rule on the "outside employment" that an
incumbent court official or court employee may undertake in addition to
his official duties:
Outside employment may be allowed by the head of office provided it
complies with all of the following requirements:
(a) The outside employment is not with a person or entity that
practices law before the courts or conducts business with the
Judiciary;
155
 (b) The outside employment can be performed outside of normal
working hours and is not incompatible with the performance of the
court personnel’s duties and responsibilities;
(c) That outside employment does not require the practice of law;
Provided, however, that court personnel may render services as
professor, lecturer, or resource person in law schools, review or
continuing education centers or similar institutions;
(d) The outside employment does not require or induce the court
personnel to disclose confidential information acquired while
performing officials duties;
(e) The outside employment shall not be with the legislative or
executive branch of government, unless specifically authorized by
the Supreme Court.
Where a conflict of interest exists, may reasonably appear to exist, or
where the outside employment reflects adversely on the integrity of the
Judiciary, the court personnel shall not accept outside employment.
[Emphasis supplied]
In both the above discussed aspect of R.A. No. 6713 and the quoted
Canon 3, the practice of law is covered; the practice of law is a practice of
profession, while Canon 3 specifically mentions any outside employment
requiring the practice of law. In Cayetano v. Monsod,16 we defined the
practice of law as any activity, in and out of court, that requires the
application of law, legal procedure, knowledge, training and experience.
Moreover, we ruled that to engage in the practice of law is to perform
those acts which are characteristics of the profession; to practice law is to
give notice or render any kind of service, which device or service requires
the use in any degree of legal knowledge or skill. 17 Under both provisions,
a common objective is to avoid any conflict of interest on the part of the
employee who may wittingly or unwittingly use confidential information
acquired from his employment, or use his or her familiarity with court
personnel still with the previous office.
After separation from the service, Section 5, Canon 3 of the Code of
Conduct for Court Personnel ceases to apply as it applies specifically to
incumbents, but Section 7 and its subsection (b)(2) of R.A. No. 6713
continue to apply to the extent discussed above. Atty. Buffe’s situation
falls under Section 7.
Atty. Buffe’s Situation
A distinctive feature of this administrative matter is Atty. Buffe’s
admission that she immediately engaged in private practice of law within
the one-year period of prohibition stated in Section 7(b)(2) of R.A. No.
6713. We find it noteworthy, too, that she is aware of this provision and
only objects to its application to her situation; she perceives it to be unfair
that she cannot practice before her old office – Branch 81 – for a year
immediately after resignation, as she believes that her only limitation is in
matters where a conflict of interest exists between her appearance as
counsel and her former duties as Clerk of Court. She believes that
Section 7 (b)(2) gives preferential treatment to incumbent public officials
and employees as against those already separated from government
employment.
Atty. Buffe apparently misreads the law. As the OCAT aptly stated, she
interprets Section 7 (b)(2) as a blanket authority for an incumbent clerk of
court to practice law. We reiterate what we have explained above, that
the general rule under Section 7 (b)(2) is to bar public officials and
employees from the practice of their professions; it is unlawful under this
general rule for clerks of court to practice their profession. By way of
exception, they can practice their profession if the Constitution or the law
allows them, but no conflict of interest must exist between their current
duties and the practice of their profession. As we also mentioned above,
no chance exists for lawyers in the Judiciary to practice their profession,
as they are in fact expressly prohibited by Section 5, Canon 3 of the
Code of Conduct for Court Personnel from doing so. Under both the
general rule and the exceptions, therefore, Atty. Buffe’s basic premise is
misplaced.
As we discussed above, a clerk of court can already engage in the
practice of law immediately after her separation from the service and
without any period limitation that applies to other prohibitions under
Section 7 of R.A. No. 6713. The clerk of court’s limitation is that she
cannot practice her profession within one year before the office where he
or she used to work with. In a comparison between a resigned, retired or
separated official or employee, on the one hand, and an incumbent
official or employee, on the other, the former has the advantage because
the limitation is only with respect to the office he or she used to work with
and only for a period of one year. The incumbent cannot practice at all,
save only where specifically allowed by the Constitution and the law and
only in areas where no conflict of interests exists. This analysis again
disproves Atty. Buffe’s basic premises.
156
A worrisome aspect of Atty. Buffe’s approach to Section 7 (b)(2) is her
awareness of the law and her readiness to risk its violation because of
the unfairness she perceives in the law. We find it disturbing that she first
violated the law before making any inquiry. She also justifies her position
by referring to the practice of other government lawyers known to her
who, after separation from their judicial employment, immediately
engaged in the private practice of law and appeared as private counsels
before the RTC branches where they were previously employed. Again
we find this a cavalier attitude on Atty. Buffe’s part and, to our mind, only
emphasizes her own willful or intentional disregard of Section 7 (b)(2) of
R.A. No. 6713.
By acting in a manner that R.A. No. 6713 brands as "unlawful," Atty.
Buffe contravened Rule 1.01 of Canon 1 of the Code of Professional
Responsibility, which provides:
CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY
THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND
FOR LEGAL PROCESSES
xxx
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
As indicated by the use of the mandatory word "shall," this provision must
be strictly complied with. Atty. Buffe failed to do this, perhaps not with an
evil intent, considering the misgivings she had about Section 7 (b)(2)’s
unfairness. Unlawful conduct under Rule 1.01 of Canon 1, however, does
not necessarily require the element of criminality, although the Rule is
broad enough to include it.18 Likewise, the presence of evil intent on the
part of the lawyer is not essential to bring his or her act or omission within
the terms of Rule 1.01, when it specifically prohibits lawyers from
engaging in unlawful conduct.19 Thus, we find Atty. Buffe liable under this
quoted Rule.
We also find that Atty. Buffe also failed to live up to her lawyer’s oath and
thereby violated Canon 7 of the Code of Professional Responsibility when
she blatantly and unlawfully practised law within the prohibited period by
appearing before the RTC Branch she had just left. Canon 7 states:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. [Emphasis
supplied]
By her open disregard of R.A. No. 6713, she thereby followed the
footsteps of the models she cited and wanted to replicate – the former
court officials who immediately waded into practice in the very same court
they came from. She, like they, disgraced the dignity of the legal
profession by openly disobeying and disrespecting the law.20 By her
irresponsible conduct, she also eroded public confidence in the law and
in lawyers.21 Her offense is not in any way mitigated by her transparent
attempt to cover up her transgressions by writing the Court a letter-query,
which she followed up with unmeritorious petitions for declaratory relief,
all of them dealing with the same Section 7 (b)(2) issue, in the hope
perhaps that at some point she would find a ruling favorable to her cause.
These are acts whose implications do not promote public confidence in
the integrity of the legal profession.22
Considering Atty. Buffe’s ready admission of violating Section 7(b)(2), the
principle of res ipsa loquitur finds application, making her administratively
liable for violation of Rule 1.01 of Canon 1 and Canon 7 of the Code of
Professional Responsibility.23 In several cases, the Court has disciplined
lawyers without further inquiry or resort to any formal investigation where
the facts on record sufficiently provided the basis for the determination of
their administrative liability.
In Prudential Bank v. Castro,24 the Court disbarred a lawyer without need
of any further investigation after considering his actions based on records
showing his unethical misconduct; the misconduct not only cast dishonor
on the image of both the Bench and the Bar, but was also inimical to
public interest and welfare. In this regard, the Court took judicial notice of
several cases handled by the errant lawyer and his cohorts that revealed
their modus operandi in circumventing the payment of the proper judicial
fees for the astronomical sums they claimed in their cases.25 The Court
held that those cases sufficiently provided the basis for the determination
of respondents' administrative liability, without need for further inquiry into
the matter under the principle of res ipsa loquitur. 26
Also on the basis of this principle, we ruled in Richards v. Asoy, 27 that no
evidentiary hearing is required before the respondent may be disciplined
for professional misconduct already established by the facts on record.
We applied the principle of res ipsa loquitur once more in In re:
Wenceslao Laureta28 where we punished a lawyer for grave professional
157
misconduct solely based on his answer to a show-cause order for
contempt and without going into a trial-type hearing. We ruled then that
due process is satisfied as long as the opportunity to be heard is given to
the person to be disciplined.29
Likewise in Zaldivar v. Gonzales,30 the respondent was disciplined and
punished for contempt for his slurs regarding the Court’s alleged
partiality, incompetence and lack of integrity on the basis of his answer in
a show-cause order for contempt. The Court took note that the
respondent did not deny making the negative imputations against the
Court through the media and even acknowledged the correctness of his
degrading statements. Through a per curiam decision, we justified
imposing upon him the penalty of suspension in the following tenor:
The power to punish for contempt of court does not exhaust the scope of
disciplinary authority of the Court over lawyers. The disciplinary authority
of the Court over members of the Bar is but corollary to the Court's
exclusive power of admission to the Bar. A lawyer is not merely a
professional but also an officer of the court and as such, he is called upon
to share in the task and responsibility of dispensing justice and resolving
disputes in society. Any act on his part which visibly tends to obstruct,
pervert, or impede and degrade the administration of justice constitutes
both professional misconduct calling for the exercise of disciplinary action
against him, and contumacious conduct warranting application of the
contempt power.31
These cases clearly show that the absence of any formal charge against
and/or formal investigation of an errant lawyer do not preclude the Court
from immediately exercising its disciplining authority, as long as the
errant lawyer or judge has been given the opportunity to be heard. As we
stated earlier, Atty. Buffe has been afforded the opportunity to be heard
on the present matter through her letter-query and Manifestation filed
before this Court.
A member of the bar may be penalized, even disbarred or suspended
from his office as an attorney, for violation of the lawyer’s oath and/or for
breach of the ethics of the legal profession as embodied in the Code of
Professional Responsibility.32 The appropriate penalty on an errant lawyer
depends on the exercise of sound judicial discretion based on the
surrounding facts.33
In this case, we cannot discern any mitigating factors we can apply, save
OCAT’s observation that Atty Buffe’s letter-query may really reflect a
misapprehension of the parameters of the prohibition on the practice of
the law profession under Section 7 (b) (2) of R.A. No. 6713. Ignorance of
the law, however, is no excuse, particularly on a matter as sensitive as
practice of the legal profession soon after one’s separation from the
service. If Atty. Buffe is correct in the examples she cited, it is time to ring
the bell and to blow the whistle signaling that we cannot allow this
practice to continue. 1avvphi1
As we observed earlier,34 Atty. Buffe had no qualms about the
simultaneous use of various fora in expressing her misgivings about the
perceived unfairness of Section 7 of R.A. 6713. She formally lodged a
query with the Office of the Court Administrator, and soon after filed her
successive petitions for declaratory relief. Effectively, she exposed these
fora to the possibility of embarrassment and confusion through their
possibly differing views on the issue she posed. Although this is not
strictly the forum-shopping that the Rules of Court prohibit, what she has
done is something that we cannot help but consider with disfavor
because of the potential damage and embarrassment to the Judiciary
that it could have spawned. This is a point against Atty. Buffe that cancels
out the leniency we might have exercised because of the OCAT’s
observation about her ignorance of and misgivings on the extent of the
prohibition after separation from the service.
Under the circumstances, we find that her actions merit a penalty of fine
of ₱10,000.00, together with a stern warning to deter her from repeating
her transgression and committing other acts of professional
misconduct.35 This penalty reflects as well the Court’s sentiments on how
seriously the retired, resigned or separated officers and employees of the
Judiciary should regard and observe the prohibition against the practice
of law with the office that they used to work with.
WHEREFORE, premises considered, we find Atty. Karen M. Silverio-
Buffe GUILTY of professional misconduct for violating Rule 1.01 of
Canon 1 and Canon 7 of the Code of Professional Responsibility. She is
hereby FINED in the amount of Ten Thousand Pesos (₱10,000.00), and
STERNLY WARNED that a repetition of this violation and the commission
of other acts of professional misconduct shall be dealt with more
severely.
Let this Decision be noted in Atty. Buffe’s record as a member of the Bar.
SO ORDERED.
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