Sie sind auf Seite 1von 166

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 counselde 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 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 courtappointed 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 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 selfinterest. WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner. VICTORIA BARRIENTOS, complainant, vs. TRANSFIGURACION DAAROL, respondent. RESOLUTION

In a sworn complaint filed with this Court on August 20, 1975, complainant Victoria C. Barrientos seeks the disbarment of respondent Transfiguracion Daarol, ** a member of the Philippine Bar, on grounds of deceit and grossly immoral conduct. After respondent filed his answer (Rollo, p. 12), the Court Resolved to refer the case to the Solicitor General for investigation, report and recommendation (Rollo, p. 18). As per recommendation of the Solicitor General and for the convenience of the parties and their witnesses who were residing in the province of Zamboanga del Norte, the Provincial Fiscal of said province was authorized to conduct the investigation and to submit a report, together with transcripts of stenographic notes and exhibits submitted by the parties, if any (Rollo, p. 20). On November 9, 1987, the Office of the Solicitor General submitted its Report and Recommendation, viz.: Evidence of the complainant: . . . complainant Victoria Barrientos was single and a resident of Bonifacio St., Dipolog City; that when she was still a teenager and first year in college she came to know respondent Transfiguracion Daarol in 1969 as he used to go to their house being a friend of her sister Norma; that they also became friends, and she knew the respondent as being single and living alone in Galas, Dipolog City; that he was the General Manager of Zamboanga del Norte Electric Cooperative, Inc. (ZANECO) and subsequently transferred his residence to the ZANECO compound at Laguna Blvd. at Del Pilar St., Dipolog City (pp. 109-111, tsn, September 30, 1976). That on June 27, 1973, respondent came to their house and asked her to be one of the usherettes in the Mason's convention in Sicayab, Dipolog City, from June 28 to 30, 1973 and, she told respondent to ask the permission of her parents, which respondent did, and her father consented; that for three whole days she served as usherette in the convention and respondent picked her up from her residence every morning and took her home from the convention site at the end of each day (pp. 112-114, tsn, id.). That in the afternoon of July 1, 1973, respondent came to complainant's house and invited her for a joy ride with the permission of her mother who was a former classmate of respondent; that respondent took her to Sicayab in his jeep and then they strolled along the beach, and in the course of which respondent proposed his love to her; that respondent told her that if she would accept him, he would marry her within six (6) months from her acceptance; complainant told respondent that she would think it over first; that from then on respondent used to visit her in their house almost every night, and he kept on courting her and pressed her to make her decision on respondent's proposal; that on July 7, 1973, she finally accepted respondent's offer of love and respondent continued

PER CURIAM:

his usual visitations almost every night thereafter; they agreed to get married in December 1973 (pp. 115-119, tsn, id.). That in the morning of August 20, 1973, respondent invited her, with the consent of her father, to a party at the Lopez Skyroom; that at 7:00 p.m. of that day respondent fetched her from her house and went to the Lopez Skyroom (pp. 119121, tsn, id); that at about 10:00 p.m. of that evening they left the party at the Lopez Skyroom, but before taking her home respondent invited her for a joy ride and took her to the airport at Sicayab, Dipolog City; respondent parked the jeep by the beach where there were no houses around; that in the course of their conversation inside the jeep, respondent reiterated his promise to marry her and then started caressing her downward and his hand kept on moving to her panty and down to her private parts (pp. 121-122, tsn. id.); that she then said: "What is this Trans?", but he answered: "Day, do not be afraid of me. I will marry you" and reminded her also that "anyway, December is very near, the month we have been waiting for" ([p], 122, tsn, id.), then he pleaded, "Day, just give this to me, do not be afraid" (ibid), and again reiterated his promise and assurances, at the same time pulling down her panty; that she told him that she was afraid because they were not yet married, but because she loved him she finally agreed to have sexual intercourse with him at the back seat of the jeep; that after the intercourse she wept and respondent again reiterated his promises and assurances not to worry because anyway he would marry her; and at about 12:00 midnight they went home (pp. 122-124, tsn, id.). After August 20, 1973, respondent continued to invite her to eat outside usually at the Honeycomb Restaurant in Dipolog City about twice or three times a week, after which he would take her to the airport where they would have sexual intercourse; that they had this sexual intercourse from August to October 1973 at the frequency of two or three times a week, and she consented to all these things because she loved him and believed in all his promises (pp. 125-127, tsn, id.). Sometime in the middle part of September, 1973 complainant noticed that her menstruation which usually occurred during the second week of each month did not come; she waited until the end of the month and still there was no menstruation; she submitted to a pregnancy test and the result was positive; she informed respondent and respondent suggested to have the fetus aborted but she objected and respondent did not insist; respondent then told her not to worry because they would get married within one month and he would talk to her parents about their marriage (pp. 129-132, tsn,id.).

On October 20, 1973, respondent came to complainant's house and talked to her parents about their marriage; it was agreed that the marriage would be celebrated in Manila so as not to create a scandal as complainant was already pregnant; complainant and her mother left for Manila by boat on October 22, 1973 while respondent would follow by plane; and they agreed to meet in Singalong, Manila, in the house of complainant's sister Delia who is married to Ernesto Serrano (pp. 132-135, tsn, id.). On October 26, 1973, when respondent came to see complainant and her mother at Singalong, Manila, respondent told them that he could not marry complainant because he was already married (p. 137, tsn, id.); complainant's mother got mad and said: "Trans, so you fooled my daughter and why did you let us come here in Manila?" (p. 138, tsn, id.). Later on, however, respondent reassured complainant not to worry because respondent had been separated from his wife for 16 years and he would work for the annulment of his marriage and, subsequently marry complainant (p. 139, tsn, id.); respondent told complainant to deliver their child in Manila and assured her of a monthly support of P250.00 (p. 140, tsn, id.); respondent returned to Dipolog City and actually sent the promised support; he came back to Manila in January 1974 and went to see complainant; when asked about the annulment of his previous marriage, he told complainant that it would soon be approved (pp. 141-142, tsn, id.); he came back in February and in March 1974 and told complainant the same thing (p. 142, tsn, id.); complainant wrote her mother to come to Manila when she delivers the child, but her mother answered her that she cannot come as nobody would be left in their house in Dipolog and instead suggested that complainant go to Cebu City which is nearer; complainant went to Cebu City in April 1974 and, her sister Norma took her to the Good Shepherd Convent at Banawa Hill; she delivered a baby girl on June 14, 1974 at the Perpetual Succor Hospital in Cebu City; and the child was registered as "Dureza Barrientos" (pp. 143-148, tsn, id.). In the last week of June 1974 complainant came to Dipolog City and tried to contact respondent by phone and, thru her brother, but to no avail; as she was ashamed she just stayed in their house; she got sick and her father sent her to Zamboanga City for medical treatment; she came back after two weeks but still respondent did not come to see her (tsn. 48-150, tsn, id.); she consulted a lawyer and filed an administrative case against respondent with the National Electrification Administration; the case was referred to the Zamboanga del Norte Electric Cooperative (ZANECO) and it was dismissed and thus she filed the present administrative case (pp. 150-151, tsn, id.). Evidence for the Respondent

The evidence of the respondent consists of his sole testimony and one exhibit, the birth certificate of the child (Exh. 1). Respondent declared substantially as follows: that he was born on August 6, 1932 in Liloy, Zamboanga del Norte; that he married Romualda Sumaylo in Liloy in 1955; that he had a son who is now 20 years old; that because of incompatibility he had been estranged from his wife for 16 years; that in 1953 he was baptized as a moslem and thereby embraced the Islam Religion (pp. 173-180 tsn, Jan. 13, 1977); that he came to know complainant's father since 1952 because he was his teacher; likewise he knew complainant's mother because they were former classmates in high school; that he became acquainted with complainant when he used to visit her sister, Norma, in their house; they gradually became friends and often talked with each other, and even talked about their personal problems; that he mentioned to her his being estranged from his wife; that with the consent of her parents he invited her to be one of the usherettes in the Masonic Convention in Sicayab, Dipolog City held on June 28-30, 1973 (pp. 185-192, tsn, id.); that the arrangement was for him to fetch her from her residence and take her home from the convention site; that it was during this occasion that they became close to each other and after the convention, he proposed his love to her on July 7, 1973; that (sic) a week of courtship, she accepted his proposal and since then he used to invite her (pp. 193194, tsn, id.). That in the evening of August 20, 1973, respondent invited complainant to be his partner during the Chamber of Commerce affair at the Lopez Skyroom; that at about 10:00 p.m. of that evening after the affair, complainant complained to him of a headache, so he decided to take her home but once inside the jeep, she wanted to have a joy ride, so he drove around the city and proceeded to the airport; that when they were at the airport, only two of them, they started the usual kisses and they were carried by their passion; they forgot themselves and they made love; that before midnight he took her home; that thereafter they indulged in sexual intercourse many times whenever they went on joy riding in the evening and ended up in the airport which was the only place they could be alone (p. 195, tsn, id.). That it was sometime in the later part of October 1973 that complainant told him of her pregnancy; that they agreed that the child be delivered in Manila to avoid scandal and respondent would take care of expenses; that during respondent's talk with the parents of complainant regarding the latter's pregnancy, he told him he was married but estranged from his wife; that when complainant was already in Manila, she asked him if he was willing to marry her, he answered he could not marry again, otherwise, he

would be charged with bigamy but he promised to file an annulment of his marriage as he had been separated from his wife for 16 years; that complainant consented to have sexual intercourse with him because of her love to him and he did not resort to force, trickery, deceit or cajolery; and that the present case was filed against him by complainant because of his failure to give the money to support complainant while in Cebu waiting for the delivery of the child and, also to meet complainant's medical expenses when she went to Zamboanga City for medical check-up (pp. 198-207, tsn, id.). FINDING OF FACTS From the evidence adduced by the parties, the following facts are not disputed: 1. That the complainant, Victoria Barrientos, is single, a college student, and was about 20 years and 7 months old during the time (July-October 1975) of her relationship with respondent, having been born on December 23, 1952; while respondent Transfiguracion Daarol is married, General Manager of Zamboanga del Norte Electric Cooperative, and 41 years old at the time of the said relationship, having been born on August 6, 1932; 2. That respondent is married to Romualda A. Sumaylo with whom be has a son; that the marriage ceremony was solemnized on September 24, 1955 at Liloy, Zamboanga del Norte by a catholic priest, Rev. Fr. Anacleto Pellamo, Parish Priest thereat; and that said respondent had been separated from his wife for about 16 years at the time of his relationship with complainant; 3. That respondent had been known by the Barrientos family for quite sometime, having been a former student of complainant's father in 1952 and, a former classmate of complainant's mother at the Andres Bonifacio College in Dipolog City; that he became acquainted with complainant's sister, Norma in 1963 and eventually with her other sisters, Baby and Delia and, her brother, Boy, as he used to visit Norma at her residence; that he also befriended complainant and who became a close friend when he invited her, with her parents' consent, to be one of the usherettes during the Masonic Convention in Sicayab, Dipolog City from June 28 to 30, 1973, and he used to fetch her at her residence in the morning and took her home from the convention site after each day's activities; 4. That respondent courted complainant, and after a week of courtship, complainant accepted respondent's love on July 7, 1973; that in the evening of August 20, 1973, complainant with her parents' permission was respondent's partner during the Chamber of Commerce affair at the Lopez Skyroom in the Dipolog

City, and at about 10:00 o'clock that evening, they left the place but before going home, they went to the airport at Sicayab, Dipolog City and parked the jeep at the beach, where there were no houses around; that after the usual preliminaries, they consummated the sexual act and at about midnight they went home; that after the first sexual act, respondent used to have joy ride with complainant which usually ended at the airport where they used to make love twice or three times a week; that as a result of her intimate relations, complainant became pregnant; 5. That after a conference among respondent, complainant and complainant's parents, it was agreed that complainant would deliver her child in Manila, where she went with her mother on October 22, 1973 by boat, arriving in Manila on the 25th and, stayed with her brother-in-law Ernesto Serrano in Singalong, Manila; that respondent visited her there on the 26th, 27th and 28th of October 1973, and again in February and March 1974; that later on complainant decided to deliver the child in Cebu City in order to be nearer to Dipolog City, and she went there in April 1974 and her sister took her to the Good Shepherd Convent at Banawa Hill, Cebu City; that on June 14, 1974, she delivered a baby girl at the Perpetual Succor Hospital in Cebu City and, named her "Dureza Barrientos"; that about the last week of June 1974 she went home to Dipolog City; that during her stay here in Manila and later in Cebu City, the respondent defrayed some of her expenses; that she filed an administrative case against respondent with the National Electrification Administration; which complaint, however, was dismissed; and then she instituted the present disbarment proceedings against respondent. xxx xxx xxx In view of the foregoing, the undersigned respectfully recommend that after hearing, respondent Transfiguracion Daarol be disbarred as a lawyer. (Rollo, pp. 28-51). After a thorough review of the case, the Court finds itself in full accord with the findings and recommendation of the Solicitor General. From the records, it appears indubitable that complainant was never informed by respondent attorney of his real status as a married individual. The fact of his previous marriage was disclosed by respondent only after the complainant became pregnant. Even then, respondent misrepresented himself as being eligible to re-marry for having been estranged from his wife for 16 years and dangled a marriage proposal on the assurance that he would work for the annulment of his first marriage. It was a deception after all as it turned out that respondent never bothered to annul said marriage. More importantly, respondent knew all along that the mere fact of separation alone is not a ground for annulment of marriage and does not vest him legal capacity to contract another marriage.

Interestingly enough. respondent lived alone in Dipolog City though his son, who was also studying in Dipolog City, lived separately from him. He never introduced his son and went around with friends as though he was never married much less had a child in the same locality. This circumstance alone belies respondent's claim that complainant and her family were aware of his previous marriage at the very start of his courtship. The Court is therefore inclined to believe that respondent resorted to deceit in the satisfaction of his sexual desires at the expense of the gullible complainant. It is not in accordance with the nature of the educated, cultured and respectable, which complainant's family is, her father being the Assistant Principal of the local public high school, to allow a daughter to have an affair with a married man. But what surprises this Court even more is the perverted sense of respondent's moral values when he said that: "I see nothing wrong with this relationship despite my being married." (TSN, p. 209, January 13, 1977; Rollo, p. 47) Worse, he even suggested abortion. Truly, respondent's moral sense is so seriously impaired that we cannot maintain his membership in the Bar. In Pangan v. Ramos (107 SCRA 1 [1981]), we held that: (E)ven his act in making love to another woman while his first wife is still alive and their marriage still valid and existing is contrary to honesty, justice, decency and morality. Respondent made a mockery of marriage which is a sacred institution demanding respect and dignity. Finally, respondent even had the temerity to allege that he is a Moslem convert and as such, could enter into multiple marriages and has inquired into the possibility of marrying complainant (Rollo, p. 15). As records indicate, however, his claim of having embraced the Islam religion is not supported by any evidence save that of his self-serving testimony. In this regard, we need only to quote the finding of the Office of the Solicitor General, to wit: When respondent was asked to marry complainant he said he could not because he was already married and would open him to a charge of bigamy (p. 200, tsn, January 13, 1977). If he were a moslem convert entitled to four (4) wives, as he is now claiming, why did he not marry complainant? The answer is supplied by respondent himself. He said while he was a moslem, but, having been married in a civil ceremony, he could no longer validly enter into another civil ceremony without committing bigamy because the complainant is a christian (p. 242, tsn, January 13, 1977). Consequently, if respondent knew, that notwithstanding his being a moslem convert, he cannot marry complainant, then it was grossly immoral for him to have sexual intercourse with complainant because he knew the existence of a legal impediment. Respondent may not, therefore, escape responsibility thru his dubious claim that he has embraced the Islam religion. (Rollo, p. 49). By his acts of deceit and immoral tendencies to appease his sexual desires, respondent Daarol has amply demonstrated his moral delinquency. Hence, his removal for conduct unbecoming a member of the Bar on the grounds of deceit and grossly immoral conduct (Sec. 27, Rule 138, Rules of Court) is in order. Good moral character is a condition which precedes admission to the Bar (Sec. 2, Rule 138, Rules of

Court) and is not dispensed with upon admission thereto. It is a continuing qualification which all lawyers must possess (People v. Tuanda, 181 SCRA 682 [1990]; Delos Reyes v. Aznar, 179 SCRA 653 [1989]), otherwise, a lawyer may either be suspended or disbarred. As we have held in Piatt v. Abordo (58 Phil. 350 [1933], cited in Leda v. Tabang, 206 SCRA 395 [1992]): It cannot be overemphasized that the requirement of good character is not only a condition precedent to admission to the practice of law; its continued possession is also essential for remaining in the practice of law (People v. Tuanda, Adm. Case No. 3360, 30 January 1990, 181 SCRA 692). As aptly put by Mr. Justice George A. Malcolm: "As good character is an essential qualification for admission of an attorney to practice, when the attorney's character is bad in such respects as to show that he is unsafe and unfit to be entrusted with the powers of an attorney, the court retains the power to discipline him (Piatt v. Abordo, 58 Phil. 350 [1933]). Only recently, another disbarment proceeding was resolved by this Court against a lawyer who convinced a woman that her prior marriage to another man was null and void ab initio and she was still legally single and free to marry him (the lawyer), married her, was supported by her in his studies, begot a child with her, abandoned her and the child, and married another woman (Terre vs. Terre, Adm. Case No. 2349, July 3, 1992). Here, respondent, already a married man and about 41 years old, proposed love and marriage to complainant, then still a 20-year-old minor, knowing that he did not have the required legal capacity. Respondent then succeeded in having carnal relations with complainant by deception, made her pregnant, suggested abortion, breached his promise to marry her, and then deserted her and the child. Respondent is therefore guilty of deceit and grossly immoral conduct. The practice of law is a privilege accorded only to those who measure up to the exacting standards of mental and moral fitness. Respondent having exhibited debased morality, the Court is constrained to impose upon him the most severe disciplinary action disbarment. The ancient and learned profession of law exacts from its members the highest standard of morality. The members are, in fact, enjoined to aid in guarding the Bar against the admission of candidates unfit or unqualified because deficient either moral character or education (In re Puno, 19 SCRA 439, [1967]; Pangan vs. Ramos, 107 SCRA 1 [1981]). As officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and must lead a life in accordance with the highest moral standards of the community. More specifically, a member of the Bar and an officer of the Court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also behave himself in such a manner as to avoid scandalizing the public by creating the belief that he is flouting those moral standards (Tolosa vs. Cargo, 171 SCRA 21, 26 [1989], citing Toledo vs. Toledo, 7 SCRA 757 [1963] and Royong vs. Oblena, 7 SCRA 859 [1963]). In brief, We find respondent Daarol morally delinquent and as such, should not be allowed continued membership in the

ancient and learned profession of law (Quingwa v. Puno, 19 SCRA 439 [1967]). ACCORDINGLY, We find respondent Transfiguracion Daarol guilty of grossly immoral conduct unworthy of being a member of the Bar and is hereby ordered DISBARRED and his name stricken off from the Roll of Attorneys. Let copies of this Resolution be furnished to all courts of the land, the Integrated Bar of the Philippines, the Office of the Bar Confidant and spread on the personal record of respondent Daarol. SO ORDERED. 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. Alauya wrote three other letters to Mr. Arzaga of the NHMFC, dated February 21, 1996, April 15, 1996, and May 3, 1996, in all of which, for the same reasons already cited, he insisted on the cancellation of his housing loan and discontinuance of deductions from his salary on account thereof. a He also wrote on January 18, 1996 to Ms. Corazon

M. Ordoez, Head of the Fiscal Management & Budget Office, and to the Chief, Finance Division, both of this Court, to stop deductions from his salary in relation to the loan in question, again asserting the anomalous manner by which he was allegedly duped into entering into the contracts by "the scheming sales agent." b The upshot was that in May, 1996, the NHMFC wrote to the Supreme Court requesting it to stop deductions on Alauya's UHLP loan "effective May 1996." and began negotiating with Villarosa & Co. " for the buy-back of . . . (Alauya's) mortgage. and . . the refund of . . (his) payments." c On learning of Alauya's letter to Villarosa & Co. of December 15, 1995, Sophia Alawi filed with this Court a verified complaint dated January 25, 1996 to which she appended a copy of the letter, and of the above mentioned envelope bearing the typewritten words, "Free Postage - PD 26." 1 In that complaint, she accused Alauya of: 1. "Imputation of malicious and libelous charges with no solid grounds through manifest ignorance and evident bad faith;" 2. "Causing undue injury to, and blemishing her honor and established reputation;" 3. "Unauthorized enjoyment of the privilege of free postage . . .;" and 4. Usurpation of the title of "attorney," which only regular members of the Philippine Bar may properly use. She deplored Alauya's references to her as "unscrupulous swindler, forger, manipulator, etc." without "even a bit of evidence to cloth (sic) his allegations with the essence of truth," denouncing his imputations as irresponsible, "all concoctions, lies, baseless and coupled with manifest ignorance and evident bad faith," and asserting that all her dealings with Alauya had been regular and completely transparent. She closed with the plea that Alauya "be dismissed from the 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 "Counsellorsat-law." a title to which Shari'a lawyers have a rightful claim, adding that he prefers the title of "attorney" because "counsellor" is often mistaken for "councilor," "konsehal" or the Maranao term "consial," connoting a local legislator beholden to the mayor. Withal, he does not consider himself a lawyer. He pleads for the Court's compassion, alleging that what he did "is expected of any man unduly prejudiced and injured." 10 He claims he was manipulated into reposing his trust in Alawi, a classmate and friend. 11 He was induced to sign a blank contract on Alawi's assurance that she would show the completed document to him later for correction, but she had since avoided him; despite "numerous letters and follow-ups" he still does not know where the property subject of his supposed agreement with Alawi's principal, Villarosa & Co. is situated; 12He 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 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. A.M. No. P-99-1287 January 26, 2001

On December 8, 1998, the Court issued a Resolution denying respondent's request for authorization to appear as counsel and directing the Office of the Court Administrator to file formal charges against him for appearing in court without the required authorization from the Court.5 On January 25, 1999, the Court Administrator filed the instant administrative complaint against respondent for violating Sec. 7(b)(2) of Republic Act No. 6713, otherwise known as the "Code of Conduct and Ethical Standards for Public Officials and Employees," which provides: Sec. 7. Prohibited Acts and Transactions. In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: x x x

(b) Outside employment and other activities related thereto. Public officials and employees during their incumbency shall not: x x x

(2) Engage in the private practice of their profession unless authorized by the Constitution or law, Provided, that such practice will not conflict or tend to conflict with their official functions; In our Resolution, dated February 9, 1999, we required respondent to comment on the administrative complaint. In his Comment, respondent explained that he and Ms. Ladaga are "close blood cousins" who belong to a "powerless family" from the impoverished town of Bacauag, Surigao del Norte. From childhood until he finished his law degree, Ms. Ladaga had always supported and guided him while he looked up to her as a mentor and an adviser. Because of their close relationship, Ms. Ladaga sought respondent's help and advice when she was charged in Criminal Case No. 84885 for falsification by the private complainant, Lisa Payoyo Andres, whose only purpose in filing the said criminal case was to "seek vengeance" on her cousin. He explained that his cousin's discord with Ms. Andres started when the latter's husband, SPO4 Pedro Andres, left the conjugal home to cohabit with Ms. Ladaga. During the course of their illicit affair, SPO4 Andres and Ms. Ladaga begot three (3) children. The birth certificate of their eldest child is the subject of the falsification charge against Ms. Ladaga. Respondent stated that since he is the only lawyer in their family, he felt it to be his duty to accept Ms. Ladaga's plea to be her counsel since she not have enough funds to pay for the services of a lawyer. Respondent also pointed out that in his seven (7) years of untainted government service, initially with the Commission on Human Rights and now with the judiciary, he had performed his duties with honesty and integrity and that it was only in this particular case that he had been administratively charged for extending a helping hand to a close relative by giving a free legal assistance for "humanitarian purpose." He never took advantage of his position as branch clerk of court since the questioned appearances were made in the Metropolitan Trial Court of Quezon City and not in Makati where he is holding office. He stressed that during the hearings of the criminal case, he was on leave as shown by his approved leave applications attached to his comment.

OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. ATTY. MISAEL M. LADAGA, Branch Clerk of Court, Regional Trial Court, Branch 133, Makati City, respondent. KAPUNAN, J.: In a Letter, dated August 31, 1998, respondent Atty. Misael M. Ladaga, Branch Clerk of Court of the Regional Trial Court of Makati, Branch 133, requested the Court Administrator, Justice Alfredo L. Benipayo, for authority to appear as pro bono counsel of his cousin, Narcisa Naldoza Ladaga, in Criminal Case No. 84885, entitled "People vs. Narcisa Naldoza Ladaga" for Falsification of Public Document pending before the Metropolitan Trial Court of Quezon City, Branch 40.1 While respondent's letter-request was pending action, Lisa Payoyo Andres, the private complainant in Criminal Case No. 84885, sent a letter to the Court Administrator, dated September 2, 1998, requesting for a certification with regard to respondent's authority to appear as counsel for the accused in the said criminal case.2 On September 7, 1998, the Office of the Court Administrator referred the matter to respondent for comment.3 In his Comment,4 dated September 14, 1998, respondent admitted that he had appeared in Criminal Case No. 84885 without prior authorization. He reasoned out that the factual circumstances surrounding the criminal case compelled him to handle the defense of his cousin who did not have enough resources to hire the services of a counsel de parte; while, on the other hand, private complainant was a member of a powerful family who was out to get even with his cousin. Furthermore, he rationalized that his appearance in the criminal case did not prejudice his office nor the interest of the public since he did not take advantage of his position. In any case, his appearances in court were covered by leave applications approved by the presiding judge.1wphi1.nt

In our Resolution, dated June 22, 1999, we noted respondent's comment and referred the administrative matter to the Executive Judge of the Regional Trial Court of Makati, Judge Josefina Guevarra-Salonga, for investigation, report and recommendation. In her Report, dated September 29, 1999, Judge Salonga made the following findings and recommendation: There is no question that Atty. Misael Ladaga appeared as counsel for and in behalf of his cousin, Narcisa Naldoza Ladaga, an accused in Criminal Case No. 84-885 for "Falsification of Public Documents" before the METC of Quezon City. It is also denied that the appearance of said respondent in said case was without the previous permission of the Court. An examination of the records shows that during the occasions that the respondent appeared as such counsel before the METC of Quezon City, he was on official leave of absence. Moreover, his Presiding Judge, Judge Napoleon Inoturan was aware of the case he was handling. That the respondent appeared aspro bono counsel likewise cannot be denied. His cousin-client Narcisa Ladaga herself positively declared that the respondent did not receive a single centavo from her. Helpless as she was and respondent being the only lawyer in the family, he agreed to represent her out of his compassion and high regard for her. It may not be amiss to point out, this is the first time that respondent ever handled a case for a member of his family who is like a big sister to him. He appeared for free and for the purpose of settling the case amicably. Furthermore, his Presiding Judge was aware of his appearance as counsel for his cousin. On top of this, during all the years that he has been in government service, he has maintained his integrity and independence. RECOMMENDATION In the light of the foregoing, it appearing that the respondent appeared as counsel for his cousin without first securing permission from the Court, and considering that this is his first time to do it coupled with the fact that said appearance was not for a fee and was with the knowledge of his Presiding Judge, it is hereby respectfully recommended that he be REPRIMANDED with a stern warning that any repetition of such act would be dealt with more severely.6 We agree with the recommendation of the investigating judge. Respondent is charged under Sec. 7(b)(2) of the Code of Conduct and Ethical Standards for Public Officials and Employees which prohibits civil servants from engaging in the private practice of their profession. A similar prohibition is found under Sec. 35, Rule 138 of the Revised Rules of Court which disallows certain attorneys from engaging in the private practice of their profession. The said section reads: SEC. 35. Certain attorneys not to practice. No judge or other official or employee of the superior courts or of the Office of the Solicitor General, shall engage in private practice as a member of the bar or give professional advise to clients.

However, it should be clarified that "private practice" of a profession, specifically the law profession in this case, which is prohibited, does not pertain to an isolated court appearance; rather, it contemplates a succession of acts of the same nature habitually or customarily holding one's self to the public as a lawyer. In the case of People vs. Villanueva,7 we explained the meaning of the term "private practice" prohibited by the said section, to wit: We believe that the isolated appearance of City Attorney Fule did not constitute private practice, within the meaning and contemplation of the Rules. Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, N.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such services (State vs. Bryan, 4 S. E. 522, 98 N. C. 644, 647). The appearance as counsel on one occasion, is not conclusive as determinative of engagement in the private practice of law. The following observation of the Solicitor General is noteworthy: "Essentially, the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services." For one thing, it has never been refuted that City Attorney Fule had been given permission by his immediate superior, the Secretary of Justice, to represent the complainant in the case at bar, who is a relative.8 Based on the foregoing, it is evident that the isolated instances when respondent appeared as pro bono counsel of his cousin in Criminal Case No. 84885 does not constitute the "private practice" of the law profession contemplated by law. Nonetheless, while respondent's isolated court appearances did not amount to a private practice of law, he failed to obtain a written permission therefor from the head of the Department, which is this Court as required by Section 12, Rule XVIII of the Revised Civil Service Rules, thus: Sec 12. No officer or employee shall engage directly in any private business, vocation, or professionor be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of the Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government; Provided, further, That if an employee is granted permission to engage in outside activities, time so devoted outside of office hours should be fixed by the agency to the end that it will not impair in any way the efficiency of the officer or employee: And provided, finally, That no permission is necessary in the case of investments, made by an officer or employee, which do not involve real or apparent conflict between his private interests and public

10

duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer of the board of directors.9 Respondent entered his appearance and attended court proceedings on numerous occasions, i.e., May 4-15, 1998, June 18, 1998, July 13, 1998 and August 5, 1998, as borne out by his own admission. It is true that he filed leave applications corresponding to the dates he appeared in court. However, he failed to obtain a prior permission from the head of the Department. The presiding judge of the court to which respondent is assigned is not the head of the Department contemplated by law.1wphi1.nt WHEREFORE, in view of the foregoing, respondent Atty. Misael M. Ladaga is hereby REPRIMANDED with a stern warning that any repetition of such act would be dealt with more severely. SO ORDERED. 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.

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 mattersconnected with the

PARAS, J.:p We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence. The 1987 Constitution provides in Section 1 (1), Article IX-C: There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied) The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides: There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine

11

law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied) Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours) The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service. One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23) The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law." MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement? THE PRESIDING OFFICER (Mr. Jamir). The Commissioner will please proceed. MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" I am quoting from the provision "who have been engaged in the practice of law for at least ten years". To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit. This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up. MR. OPLE. Will Commissioner Foz

12

yield to just one question. MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit? MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes. MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law. MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Thank you. ... ( Emphasis supplied) Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied) Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15). At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or

more inexperienced salaried attorneyscalled "associates." (Ibid.). The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.). The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession. (Ibid.). In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and 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 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

13

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 decisionmaking. 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 multivariable 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. 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

14

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 subnational governmental units. Firms increasingly collaborate not only with public entities but with each other often with those who are competitors in other arenas. Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer has gained a new role as a stakeholder in some cases

participating in the organization and operations of governance through participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are complicated as corporations organize for global operations. ( Emphasis supplied) The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied) Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organizations. Effectiveness of both longterm 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-avis 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)

15

Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied) Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in these techniques. A simulation case of an international joint venture may be used to illustrate the point. [Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus: Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made. Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work. Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or by decisions. This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on

corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4). The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4). Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years. On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC. Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void. Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 197273. 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 (19631970), 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

16

Committee on Accountability of Public Officers, for which he was cited by the President of the Commission, Justice Cecilia Muoz-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 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 lawyernegotiator 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

17

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., oathtaking, posting of bond, etc. . . . (Lacson v. Romero, No. L3081, 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) SubArticle C, Article IX of the Constitution which provides: The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent. Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined. Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts of persons practising law, without first becoming lawyers. Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? And even assuming that

he is indeed disqualified, how can the action be entertained since he is the incumbent President? We now proceed: The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown. Additionally, consider the following: (1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative. (2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear. (3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirma Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate. Finally, one significant legal maxim is: We must interpret not by the letter that killeth, but by the spirit that giveth life. Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that No blade shall touch his skin; No blood shall flow from his veins. When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement. In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED. Bar Matter No. 553 June 17, 1993

18

MAURICIO C. ULEP, petitioner, vs. THE LEGAL CLINIC, INC., respondent. R E SO L U T I O N

in the light of the case of John R. Bates and Van O'Steen vs. State Bar of Arizona, 2 reportedly decided by the United States Supreme Court on June 7, 1977. Considering the critical implications on the legal profession of the issues raised herein, we required the (1) Integrated Bar of the Philippines (IBP), (2) Philippine Bar Association (PBA), (3) Philippine Lawyers' Association (PLA), (4) U.P. Womens Lawyers' Circle (WILOCI), (5) Women Lawyers Association of the Philippines (WLAP), and (6) Federacion International de Abogadas (FIDA) to submit their respective position papers on the controversy and, thereafter, their memoranda. 3 The said bar associations readily responded and extended their valuable services and cooperation of which this Court takes note with appreciation and gratitude. The main issues posed for resolution before the Court are whether or not the services offered by respondent, The Legal Clinic, Inc., as advertised by it constitutes practice of law and, in either case, whether the same can properly be the subject of the advertisements herein complained of. Before proceeding with an in-depth analysis of the merits of this case, we deem it proper and enlightening to present hereunder excerpts from the respective position papers adopted by the aforementioned bar associations and the memoranda submitted by them on the issues involved in this bar matter. 1. Integrated Bar of the Philippines: xxx xxx xxx Notwithstanding the subtle manner by which respondent endeavored to distinguish the two terms, i.e., "legal support services" vis-a-vis "legal services", common sense would readily dictate that the same are essentially without substantial distinction. For who could deny that document search, evidence gathering, assistance to layman in need of basic institutional services from government or non-government agencies like birth, marriage, property, or business registration, obtaining documents like clearance, passports, local or foreign visas, constitutes practice of law? xxx xxx xxx The Integrated Bar of the Philippines (IBP) does not wish to make issue with respondent's foreign citations. Suffice it to state that the IBP has made its position manifest, to wit, that it strongly opposes the view espoused by respondent (to the effect that today it is alright to advertise one's legal services). The IBP accordingly declares in no uncertain terms its opposition to respondent's act of establishing a "legal clinic" and of concomitantly advertising the same through newspaper publications. The IBP would therefore invoke the administrative supervision of this Honorable Court to perpetually restrain respondent from undertaking highly unethical activities in the field of law practice as aforedescribed. 4

REGALADO, J.: Petitioner prays this Court "to order the respondent to cease and desist from issuing advertisements similar to or of the same tenor as that of annexes "A" and "B" (of said petition) and to perpetually prohibit persons or entities from making advertisements pertaining to the exercise of the law profession other than those allowed by law." The advertisements complained of by herein petitioner are as follows: Annex A SECRET MARRIAGE? P560.00 for a valid marriage. Info on DIVORCE. ABSENCE. ANNULMENT. VISA. THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC, INC. 8:30 am 6:00 pm 7-Flr. Victoria Bldg., UN Ave., Mla. Annex B GUAM DIVORCE. DON PARKINSON an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The Legal Clinic beginning Monday to Friday during office hours. Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-quota Res. & Special Retiree's Visa. Declaration of Absence. Remarriage to Filipina Fiancees. Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children. Call Marivic. THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US Embassy CLINIC, INC. 1 Tel. 521-7232; 521-7251; 5222041; 521-0767 It is the submission of petitioner that the advertisements above reproduced are champterous, unethical, demeaning of the law profession, and destructive of the confidence of the community in the integrity of the members of the bar and that, as a member of the legal profession, he is ashamed and offended by the said advertisements, hence the reliefs sought in his petition as hereinbefore quoted. In its answer to the petition, respondent admits the fact of publication of said advertisement at its instance, but claims that it is not engaged in the practice of law but in the rendering of "legal support services" through paralegals with the use of modern computers and electronic machines. Respondent further argues that assuming that the services advertised are legal services, the act of advertising these services should be allowed supposedly

19

xxx xxx xxx A. The use of the name "The Legal Clinic, Inc." gives the impression that respondent corporation is being operated by lawyers and that it renders legal services. While the respondent repeatedly denies that it offers legal services to the public, the advertisements in question give the impression that respondent is offering legal services. The Petition in fact simply assumes this to be so, as earlier mentioned, apparently because this (is) the effect that the advertisements have on the reading public. The impression created by the advertisements in question can be traced, first of all, to the very name being used by respondent "The Legal Clinic, Inc." Such a name, it is respectfully submitted connotes the rendering of legal services for legal problems, just like a medical clinic connotes medical services for medical problems. More importantly, the term "Legal Clinic" connotes lawyers, as the term medical clinic connotes doctors. Furthermore, the respondent's name, as published in the advertisements subject of the present case, appears with (the) scale(s) of justice, which all the more reinforces the impression that it is being operated by members of the bar and that it offers legal services. In addition, the advertisements in question appear with a picture and name of a person being represented as a lawyer from Guam, and this practically removes whatever doubt may still remain as to the nature of the service or services being offered. It thus becomes irrelevant whether respondent is merely offering "legal support services" as claimed by it, or whether it offers legal services as any lawyer actively engaged in law practice does. And it becomes unnecessary to make a distinction between "legal services" and "legal support services," as the respondent would have it. The advertisements in question leave no room for doubt in the minds of the reading public that legal services are being offered by lawyers, whether true or not. B. The advertisements in question are meant to induce the performance of acts contrary to law, morals, public order and public policy. It may be conceded that, as the respondent claims, the advertisements in question are only meant to inform the general public of the services being offered by it. Said advertisements, however, emphasize to Guam divorce, and any law student ought to know that under the Family Code, there is only one instance when a foreign divorce is recognized, and that is: Article 26. . . .

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine Law. It must not be forgotten, too, that the Family Code (defines) a marriage as follows: Article 1. Marriage is special contract of permanent union between a man and woman entered into accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relation during the marriage within the limits provided by this Code. By simply reading the questioned advertisements, it is obvious that the message being conveyed is that Filipinos can avoid the legal consequences of a marriage celebrated in accordance with our law, by simply going to Guam for a divorce. This is not only misleading, but encourages, or serves to induce, violation of Philippine law. At the very least, this can be considered "the dark side" of legal practice, where certain defects in Philippine laws are exploited for the sake of profit. At worst, this is outright malpractice. 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. In addition, it may also be relevant to point out that advertisements such as that shown in Annex "A" of the Petition, which contains a cartoon of a motor vehicle with the words "Just Married" on its bumper and seems to address those planning a "secret marriage," if not suggesting a "secret marriage," makes light of the "special contract of permanent union," the inviolable social institution," which is how the Family Code describes marriage,

20

obviously to emphasize its sanctity and inviolability. Worse, this particular advertisement appears to encourage marriages celebrated in secrecy, which is suggestive of immoral publication of applications for a marriage license. If the article "Rx for Legal Problems" is to be reviewed, it can readily be concluded that the above impressions one may gather from the advertisements in question are accurate. The Sharon Cuneta-Gabby Concepcion example alone confirms what the advertisements suggest. Here it can be seen that criminal acts are being encouraged or committed (a bigamous marriage in Hong Kong or Las Vegas) with impunity simply because the jurisdiction of Philippine courts does not extend to the place where the crime is committed. Even if it be assumed, arguendo, (that) the "legal support services" respondent offers do not constitute legal services as commonly understood, the advertisements in question give the impression that respondent corporation is being operated by lawyers and that it offers legal services, as earlier discussed. Thus, the only logical consequence is that, in the eyes of an ordinary newspaper reader, members of the bar themselves are encouraging or inducing the performance of acts which are contrary to law, morals, good customs and the public good, thereby destroying and demeaning the integrity of the Bar. xxx xxx xxx It is respectfully submitted that respondent should be enjoined from causing the publication of the advertisements in question, or any other advertisements similar thereto. It is also submitted that respondent should be prohibited from further performing or offering some of the services it presently offers, or, at the very least, from offering such services to the public in general. The IBP is aware of the fact that providing computerized legal research, electronic data gathering, storage and retrieval, standardized legal forms, investigators for gathering of evidence, and like services will greatly benefit the legal profession and should not be stifled but instead encouraged. However, when the conduct of such business by nonmembers of the Bar encroaches upon the practice of law, there can be no choice but to prohibit such business. Admittedly, many of the services involved in the case at bar can be better performed by specialists in other fields, such as computer experts, who by reason of their having devoted time and effort exclusively to such field cannot fulfill the exacting requirements for admission to the Bar. To prohibit them from "encroaching" upon the legal profession will deny the profession of the great

benefits and advantages of modern technology. Indeed, a lawyer using a computer will be doing better than a lawyer using a typewriter, even if both are (equal) in skill. Both the Bench and the Bar, however, should be careful not to allow or tolerate the illegal practice of law in any form, not only for the protection of members of the Bar but also, and more importantly, for the protection of the public. Technological development in the profession may be encouraged without tolerating, but instead ensuring prevention of illegal practice. There might be nothing objectionable if respondent is allowed to perform all of its services, but only if such services are made available exclusively to members of the Bench and Bar. Respondent would then be offering technical assistance, not legal services. Alternatively, the more difficult task of carefully distinguishing between which service may be offered to the public in general and which should be made available exclusively to members of the Bar may be undertaken. This, however, may require further proceedings because of the factual considerations involved. It must be emphasized, however, that some of respondent's services ought to be prohibited outright, such as acts which tend to suggest or induce celebration abroad of marriages which are bigamous or otherwise illegal and void under Philippine law. While respondent may not be prohibited from simply disseminating information regarding such matters, it must be required to include, in the information given, a disclaimer that it is not authorized to practice law, that certain course of action may be illegal under Philippine law, that it is not authorized or capable of rendering a legal opinion, that a lawyer should be consulted before deciding on which course of action to take, and that it cannot recommend any particular lawyer without subjecting itself to possible sanctions for illegal practice of law. If respondent is allowed to advertise, advertising should be directed exclusively at members of the Bar, with a clear and unmistakable disclaimer that it is not authorized to practice law or perform legal services. The benefits of being assisted by paralegals cannot be ignored. But nobody should be allowed to represent himself as a "paralegal" for profit, without such term being clearly defined by rule or regulation, and without any adequate and effective means of regulating his activities. Also, law practice in a corporate form may prove to be advantageous to the legal profession, but before allowance of such practice may be considered, the corporation's Article of Incorporation and By-laws must conform to each and every

21

provision of the Code of Professional Responsibility and the Rules of Court. 5 2. Philippine Bar Association: xxx xxx xxx. Respondent asserts that it "is not engaged in the practice of law but engaged in giving legal support services to lawyers and laymen, through experienced paralegals, with the use of modern computers and electronic machines" (pars. 2 and 3, Comment). This is absurd. Unquestionably, respondent's acts of holding out itself to the public under the trade name "The Legal Clinic, Inc.," and soliciting employment for its enumerated services fall within the realm of a practice which thus yields itself to the regulatory powers of the Supreme Court. For respondent to say that it is merely engaged in paralegal work is to stretch credulity. Respondent's own commercial advertisement which announces a certainAtty. Don Parkinson to be handling the fields of law belies its pretense. From all indications, respondent "The Legal Clinic, Inc." is offering and rendering legal services through its reserve of lawyers. It has been held that the practice of law is not limited to the conduct of cases in court, but includes drawing of deeds, incorporation, rendering opinions, and advising clients as to their legal right and then take them to an attorney and ask the latter to look after their case in court See Martin, Legal and Judicial Ethics, 1984 ed., p. 39). It is apt to recall that only natural persons can engage in the practice of law, and such limitation cannot be evaded by a corporation employing competent lawyers to practice for it. Obviously, this is the scheme or device by which respondent "The Legal Clinic, Inc." holds out itself to the public and solicits employment of its legal services. It is an odious vehicle for deception, especially so when the public cannot ventilate any grievance for malpractice against the business conduit. Precisely, the limitation of practice of law to persons who have been duly admitted as members of the Bar (Sec. 1, Rule 138, Revised Rules of Court) is to subject the members to the discipline of the Supreme Court. Although respondent uses its business name, the persons and the lawyers who act for it are subject to court discipline. The practice of law is not a profession open to all who wish to engage in it nor can it be assigned to another (See 5 Am. Jur. 270). It is a personal right limited to persons who have qualified themselves under the law. It follows that not only respondent but also all the persons who are acting for respondent are the persons engaged in unethical law practice. 6 3. Philippine Lawyers' Association:

The Philippine Lawyers' Association's position, in answer to the issues stated herein, are wit: 1. The Legal Clinic is engaged in the practice of law; 2. Such practice is unauthorized; 3. The advertisements complained of are not only unethical, but also misleading and patently immoral; and 4. The Honorable Supreme Court has the power to supress and punish the Legal Clinic and its corporate officers for its unauthorized practice of law and for its unethical, misleading and immoral advertising. xxx xxx xxx Respondent posits that is it not engaged in the practice of law. It claims that it merely renders "legal support services" to answers, litigants and the general public as enunciated in the Primary Purpose Clause of its Article(s) of Incorporation. (See pages 2 to 5 of Respondent's Comment). But its advertised services, as enumerated above, clearly and convincingly show that it is indeed engaged in law practice, albeit outside of court. As advertised, it offers the general public its advisory services on Persons and Family Relations Law, particularly regarding foreign divorces, annulment of marriages, secret marriages, absence and adoption; Immigration Laws, particularly on visa related problems, immigration problems; the Investments Law of the Philippines and such other related laws. Its advertised services unmistakably require the application of the aforesaid law, the legal principles and procedures related thereto, the legal advices based thereon and which activities call for legal training, knowledge and experience. Applying the test laid down by the Court in the aforecited Agrava Case, the activities of respondent fall squarely and are embraced in what lawyers and laymen equally term as "the practice of law." 7 4. U.P. Women Lawyers' Circle: In resolving, the issues before this Honorable Court, paramount consideration should be given to the protection of the general public from the danger of being exploited by unqualified persons or entities who may be engaged in the practice of law. At present, becoming a lawyer requires one to take a rigorous four-year course of study on top of a four-year bachelor of arts or sciences course and then to take

22

and pass the bar examinations. Only then, is a lawyer qualified to practice law. While the use of a paralegal is sanctioned in many jurisdiction as an aid to the administration of justice, there are in those jurisdictions, courses of study and/or standards which would qualify these paralegals to deal with the general public as such. While it may now be the opportune time to establish these courses of study and/or standards, the fact remains that at present, these do not exist in the Philippines. In the meantime, this Honorable Court may decide to make measures to protect the general public from being exploited by those who may be dealing with the general public in the guise of being "paralegals" without being qualified to do so. In the same manner, the general public should also be protected from the dangers which may be brought about by advertising of legal services. While it appears that lawyers are prohibited under the present Code of Professional Responsibility from advertising, it appears in the instant case that legal services are being advertised not by lawyers but by an entity staffed by "paralegals." Clearly, measures should be taken to protect the general public from falling prey to those who advertise legal services without being qualified to offer such services. 8 A perusal of the questioned advertisements of Respondent, however, seems to give the impression that information regarding validity of marriages, divorce, annulment of marriage, immigration, visa extensions, declaration of absence, adoption and foreign investment, which are in essence, legal matters , will be given to them if they avail of its services. The Respondent's name The Legal Clinic, Inc. does not help matters. It gives the impression again that Respondent will or can cure the legal problems brought to them. Assuming that Respondent is, as claimed, staffed purely by paralegals, it also gives the misleading impression that there are lawyers involved in The Legal Clinic, Inc., as there are doctors in any medical clinic, when only "paralegals" are involved in The Legal Clinic, Inc. Respondent's allegations are further belied by the very admissions of its President and majority stockholder, Atty. Nogales, who gave an insight on the structure and main purpose of Respondent corporation in the aforementioned "Starweek" article." 9 5. Women Lawyer's Association of the Philippines: Annexes "A" and "B" of the petition are clearly advertisements to solicit cases for the purpose of gain which, as provided for under the above cited law, (are) illegal

and against the Code of Professional Responsibility of lawyers in this country. Annex "A" of the petition is not only illegal in that it is an advertisement to solicit cases, but it is illegal in that in bold letters it announces that the Legal Clinic, Inc., could work out/cause the celebration of a secret marriage which is not only illegal but immoral in this country. While it is advertised that one has to go to said agency and pay P560 for a valid marriage it is certainly fooling the public for valid marriages in the Philippines are solemnized only by officers authorized to do so under the law. And to employ an agency for said purpose of contracting marriage is not necessary. No amount of reasoning that in the USA, Canada and other countries the trend is towards allowing lawyers to advertise their special skills to enable people to obtain from qualified practitioners legal services for their particular needs can justify the use of advertisements such as are the subject matter of the petition, for one (cannot) justify an illegal act even by whatever merit the illegal act may serve. The law has yet to be amended so that such act could become justifiable. We submit further that these advertisements that seem to project that secret marriages and divorce are possible in this country for a fee, when in fact it is not so, are highly reprehensible. It would encourage people to consult this clinic about how they could go about having a secret marriage here, when it cannot nor should ever be attempted, and seek advice on divorce, where in this country there is none, except under the Code of Muslim Personal Laws in the Philippines. It is also against good morals and is deceitful because it falsely represents to the public to be able to do that which by our laws cannot be done (and) by our Code of Morals should not be done. In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court held that solicitation for clients by an attorney by circulars of advertisements, is unprofessional, and offenses of this character justify permanent elimination from the Bar. 10 6. Federacion Internacional de Abogados: xxx xxx xxx 1.7 That entities admittedly not engaged in the practice of law, such as management consultancy firms or travel agencies, whether run by lawyers or not, perform the services rendered by Respondent does not necessarily lead to the conclusion that Respondent is not unlawfully practicing law. In the same vein, however, the fact that the business of respondent (assuming it can be engaged in independently of the practice of law) involves knowledge of the law

23

does not necessarily make respondent guilty of unlawful practice of law. . . . . Of necessity, no one . . . . acting as a consultant can render effective service unless he is familiar with such statutes and regulations. He must be careful not to suggest a course of conduct which the law forbids. It seems . . . .clear that (the consultant's) knowledge of the law, and his use of that knowledge as a factor in determining what measures he shall recommend, do not constitute the practice of law . . . . It is not only presumed that all men know the law, but it is a fact that most men have considerable acquaintance with broad features of the law . . . . Our knowledge of the law accurate or inaccurate moulds our conduct not only when we are acting for ourselves, but when we are serving others. Bankers, liquor dealers and laymen generally possess rather precise knowledge of the laws touching their particular business or profession. A good example is the architect, who must be familiar with zoning, building and fire prevention codes, factory and tenement house statutes, and who draws plans and specification in harmony with the law. This is not practicing law. But suppose the architect, asked by his client to omit a fire tower, replies that it is required by the statute. Or the industrial relations expert cites, in support of some measure that he recommends, a decision of the National Labor Relations Board. Are they practicing law? In my opinion, they are not, provided no separate fee is charged for the legal advice or

information, and the legal question is subordinate and incidental to a major non-legal problem. It is largely a matter of degree and of custom. If it were usual for one intending to erect a building on his land to engage a lawyer to advise him and the architect in respect to the building code and the like, then an architect who performed this function would probably be considered to be trespassing on territory reserved for licensed attorneys. Likewise, if the industrial relations field had been preempted by lawyers, or custom placed a lawyer always at the elbow of the lay personnel man. But this is not the case. The most important body of the industrial relations experts are the officers and business agents of the labor unions and few of them are lawyers. Among the larger corporate employers, it has been the practice for some years to delegate special responsibility in employee matters to a management group chosen for their practical knowledge and skill in such matter, and without regard to legal thinking or lack of it. More recently, consultants like the defendants have the same service that the larger employers get from their own specialized staff. The handling of industrial relations is growing into a recognized profession for which appropriate courses are offered by our leading universities. The court should be very cautious about declaring [that] a widespread, wellestablished method of

24

conducting business is unlawful, or that the considerable class of men who customarily perform a certain function have no right to do so, or that the technical education given by our schools cannot be used by the graduates in their business. In determining whether a man is practicing law, we should consider his work for any particular client or customer, as a whole. I can imagine defendant being engaged primarily to advise as to the law defining his client's obligations to his employees, to guide his client's obligations to his employees, to guide his client along the path charted by law. This, of course, would be the practice of the law. But such is not the fact in the case before me. Defendant's primarily efforts are along economic and psychological lines. The law only provides the frame within which he must work, just as the zoning code limits the kind of building the limits the kind of building the architect may plan. The incidental legal advice or information defendant may give, does not transform his activities into the practice of law. Let me add that if, even as a minor feature of his work, he performed services which are customarily reserved to members of the bar, he would be practicing law. For instance, if as part of a welfare program, he drew employees' wills. Another branch of defendant's work is the representations of the employer in the adjustment of grievances and in collective bargaining, with or without a mediator. This is not per se the practice of law. Anyone may use an agent for negotiations and may

select an agent particularly skilled in the subject under discussion, and the person appointed is free to accept the employment whether or not he is a member of the bar. Here, however, there may be an exception where the business turns on a question of law. Most real estate sales are negotiated by brokers who are not lawyers. But if the value of the land depends on a disputed right-of-way and the principal role of the negotiator is to assess the probable outcome of the dispute and persuade the opposite party to the same opinion, then it may be that only a lawyer can accept the assignment. Or if a controversy between an employer and his men grows from differing interpretations of a contract, or of a statute, it is quite likely that defendant should not handle it. But I need not reach a definite conclusion here, since the situation is not presented by the proofs. Defendant also appears to represent the employer before administrative agencies of the federal government, especially before trial examiners of the National Labor Relations Board. An agency of the federal government, acting by virtue of an authority granted by the Congress, may regulate the representation of parties before such agency. The State of New Jersey is without power to interfere with such determination or to forbid representation before the agency by one whom the agency admits. The rules of the National Labor Relations Board give to a party the right to appear in person, or by counsel, or by other representative. Rules and Regulations,

25

September 11th, 1946, S. 203.31. 'Counsel' here means a licensed attorney, and ther representative' one not a lawyer. In this phase of his work, defendant may lawfully do whatever the Labor Board allows, even arguing questions purely legal. (Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky, Introduction to Paralegalism [1974], at pp. 154-156.). 1.8 From the foregoing, it can be said that a person engaged in a lawful calling (which may involve knowledge of the law) is not engaged in the practice of law provided that: (a) The legal question is subordinate and incidental to a major non-legal problem;. (b) The services performed are not customarily reserved to members of the bar; . (c) No separate fee is charged for the legal advice or information. All these must be considered in relation to the work for any particular client as a whole. 1.9. If the person involved is both lawyer and non-lawyer, the Code of Professional Responsibility succintly states the rule of conduct: Rule 15.08 A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. 1.10. In the present case. the Legal Clinic appears to render wedding services (See Annex "A" Petition). Services on routine, straightforward marriages, like securing a marriage license, and making arrangements with a priest or a judge, may not constitute practice of law. However, if the problem is as complicated as that described in "Rx for Legal Problems" on the Sharon Cuneta-Gabby Concepcion-Richard Gomez case, then what may be involved is actually the practice of law. If a non-lawyer, such as the Legal Clinic, renders such services then it is engaged in the unauthorized practice of law. 1.11. The Legal Clinic also appears to give information on divorce, absence, annulment of marriage and visas (See Annexes "A" and "B" Petition). Purely giving informational materials may not constitute of law. The business is similar to that of a bookstore where the customer buys materials on the subject and

determines on the subject and determines by himself what courses of action to take. It is not entirely improbable, however, that aside from purely giving information, the Legal Clinic's paralegals may apply the law to the particular problem of the client, and give legal advice. Such would constitute unauthorized practice of law. It cannot be claimed that the publication of a legal text which publication of a legal text which purports to say what the law is amount to legal practice. And the mere fact that the principles or rules stated in the text may be accepted by a particular reader as a solution to his problem does not affect this. . . . . Apparently it is urged that the conjoining of these two, that is, the text and the forms, with advice as to how the forms should be filled out, constitutes the unlawful practice of law. But that is the situation with many approved and accepted texts. Dacey's book is sold to the public at large. There is no personal contact or relationship with a particular individual. Nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE THE REPRESENTATION AND ADVISING OF A PARTICULAR PERSON IN A PARTICULAR SITUATION. At most the book assumes to offer general advice on common problems, and does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person. Similarly the defendant's publication does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person in a particular situation in their publication and sale of the kits,

26

such publication and sale did not constitutes the unlawful practice of law . . . . There being no legal impediment under the statute to the sale of the kit, there was no proper basis for the injunction against defendant maintaining an office for the purpose of selling to persons seeking a divorce, separation, annulment or separation agreement any printed material or writings relating to matrimonial law or the prohibition in the memorandum of modification of the judgment against defendant having an interest in any publishing house publishing his manuscript on divorce and against his having any personal contact with any prospective purchaser. The record does fully support, however, the finding that for the change of $75 or $100 for the kit, the defendant gave legal advice in the course of personal contacts concerning particular problems which might arise in the preparation and presentation of the purchaser's asserted matrimonial cause of action or pursuit of other legal remedies and assistance in the preparation of necessary documents (The injunction therefore sought to) enjoin conduct constituting the practice of law, particularly with reference to the giving of advice and counsel by the defendant relating to specific problems of particular individuals in connection with a divorce, separation, annulment of separation agreement sought and should be affirmed. (State v. Winder, 348, NYS 2D 270 [1973], cited in Statsky, supra at p. 101.). 1.12. Respondent, of course, states that its services are "strictly non-diagnostic, nonadvisory. "It is not controverted, however,

that if the services "involve giving legal advice or counselling," such would constitute practice of law (Comment, par. 6.2). It is in this light that FIDA submits that a factual inquiry may be necessary for the judicious disposition of this case. xxx xxx xxx 2.10. Annex "A" may be ethically objectionable in that it can give the impression (or perpetuate the wrong notion) that there is a secret marriage. With all the solemnities, formalities and other requisites of marriages (See Articles 2, et seq., Family Code), no Philippine marriage can be secret. 2.11. Annex "B" may likewise be ethically objectionable. The second paragraph thereof (which is not necessarily related to the first paragraph) fails to state the limitation that only "paralegal services?" or "legal support services", and not legal services, are available." 11 A prefatory discussion on the meaning of the phrase "practice of law" becomes exigent for the proper determination of the issues raised by the petition at bar. On this score, we note that the clause "practice of law" has long been the subject of judicial construction and interpretation. The courts have laid down general principles and doctrines explaining the meaning and scope of the term, some of which we now take into account. Practice of law means any activity, in or out of court, which requires the application of law, legal procedures, knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristic of the profession. Generally, to practice law is to give advice or render any kind of service that involves legal knowledge or skill. 12 The practice of law is not limited to the conduct of cases in court. It includes legal advice and counsel, and the preparation of legal instruments and contract by which legal rights are secured, although such matter may or may not be pending in a court. 13 In the practice of his profession, a licensed attorney at law generally engages in three principal types of professional activity: legal advice and instructions to clients to inform them of their rights and obligations, preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman, and appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law. 14 When a person participates in the a trial and advertises himself as a lawyer, he is in the practice of law. 15 One who confers with clients, advises them as to their legal rights and then takes the business to an attorney and asks the latter to look after the case in court, is also practicing law. 16 Giving advice for compensation regarding the legal status and rights of another and the conduct with respect thereto constitutes a practice of law. 17 One who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is, to that extent, practicing law. 18 In the recent case of Cayetano vs. Monsod, 19 after citing the doctrines in several cases, we laid down the test to

27

determine whether certain acts constitute "practice of law," thus: 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. The practice of law is not limited to the conduct of cases on court.(Land Title Abstract and Trust Co. v. Dworken , 129 Ohio St. 23, 193N. 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 right 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 Philippines 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 or 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).

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 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 o Court, Vol. 3 [1973 ed.], pp. 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.] 197 A. 139, 144). The practice of law, therefore, covers a wide range of activities in and out of court. Applying the aforementioned criteria to the case at bar, we agree with the perceptive findings and observations of the aforestated bar associations that the activities of respondent, as advertised, constitute "practice of law." The contention of respondent that it merely offers legal support services can neither be seriously considered nor sustained. Said proposition is belied by respondent's own description of the services it has been offering, to wit: Legal support services basically consists of giving ready information by trained paralegals to laymen and lawyers, which are strictly non-diagnostic, non-advisory, through the extensive use of computers and modern information technology in the gathering, processing, storage, transmission and reproduction of information and communication, such as computerized legal research; encoding and reproduction of documents and pleadings prepared by laymen or lawyers; document search; evidence gathering; locating parties or witnesses to a case; fact finding investigations; and assistance to laymen in need of basic institutional services from government or nongovernment agencies, like birth, marriage, property, or business registrations; educational or employment records or certifications, obtaining documentation like clearances, passports, local or foreign

28

visas; giving information about laws of other countries that they may find useful, like foreign divorce, marriage or adoption laws that they can avail of preparatory to emigration to the foreign country, and other matters that do not involve representation of clients in court; designing and installing computer systems, programs, or software for the efficient management of law offices, corporate legal departments, courts and other entities engaged in dispensing or administering legal services. 20 While some of the services being offered by respondent corporation merely involve mechanical and technical knowhow, such as the installation of computer systems and programs for the efficient management of law offices, or the computerization of research aids and materials, these will not suffice to justify an exception to the general rule. What is palpably clear is that respondent corporation gives out legal information to laymen and lawyers. Its contention that such function is non-advisory and non-diagnostic is more apparent than real. In providing information, for example, about foreign laws on marriage, divorce and adoption, it strains the credulity of this Court that all the respondent corporation will simply do is look for the law, furnish a copy thereof to the client, and stop there as if it were merely a bookstore. With its attorneys and so called paralegals, it will necessarily have to explain to the client the intricacies of the law and advise him or her on the proper course of action to be taken as may be provided for by said law. That is what its advertisements represent and for the which services it will consequently charge and be paid. That activity falls squarely within the jurisprudential definition of "practice of law." Such a conclusion will not be altered by the fact that respondent corporation does not represent clients in court since law practice, as the weight of authority holds, is not limited merely giving legal advice, contract drafting and so forth. The aforesaid conclusion is further strengthened by an article published in the January 13, 1991 issue of the Starweek/The Sunday Magazine of the Philippines Star, entitled "Rx for Legal Problems," where an insight into the structure, main purpose and operations of respondent corporation was given by its own "proprietor," Atty. Rogelio P. Nogales: This is the kind of business that is transacted everyday at The Legal Clinic, with offices on the seventh floor of the Victoria Building along U. N. Avenue in Manila. No matter what the client's problem, and even if it is as complicated as the Cuneta-Concepcion domestic situation, Atty. Nogales and his staff of lawyers, who, like doctors are "specialists" in various fields can take care of it. The Legal Clinic, Inc. has specialists in taxation and criminal law, medico-legal problems, labor, litigation, and family law. These specialist are backed up by a battery of paralegals, counsellors and attorneys. Atty. Nogales set up The Legal Clinic in 1984. Inspired by the trend in the medical field toward specialization, it caters to clients who cannot afford the services of the big law firms. The Legal Clinic has regular and walk-in clients. "when they come, we start by

analyzing the problem. That's what doctors do also. They ask you how you contracted what's bothering you, they take your temperature, they observe you for the symptoms and so on. That's how we operate, too. And once the problem has been categorized, then it's referred to one of our specialists. There are cases which do not, in medical terms, require surgery or follow-up treatment. These The Legal Clinic disposes of in a matter of minutes. "Things like preparing a simple deed of sale or an affidavit of loss can be taken care of by our staff or, if this were a hospital the residents or the interns. We can take care of these matters on a while you wait basis. Again, kung baga sa hospital, out-patient, hindi kailangang ma-confine. It's just like a common cold or diarrhea," explains Atty. Nogales. Those cases which requires more extensive "treatment" are dealt with accordingly. "If you had a rich relative who died and named you her sole heir, and you stand to inherit millions of pesos of property, we would refer you to a specialist in taxation. There would be real estate taxes and arrears which would need to be put in order, and your relative is even taxed by the state for the right to transfer her property, and only a specialist in taxation would be properly trained to deal with the problem. Now, if there were other heirs contesting your rich relatives will, then you would need a litigator, who knows how to arrange the problem for presentation in court, and gather evidence to support the case. 21 That fact that the corporation employs paralegals to carry out its services is not controlling. What is important is that it is engaged in the practice of law by virtue of the nature of the services it renders which thereby brings it within the ambit of the statutory prohibitions against the advertisements which it has caused to be published and are now assailed in this proceeding. Further, as correctly and appropriately pointed out by the U.P. WILOCI, said reported facts sufficiently establish that the main purpose of respondent is to serve as a one-stopshop of sorts for various legal problems wherein a client may avail of legal services from simple documentation to complex litigation and corporate undertakings. Most of these services are undoubtedly beyond the domain of paralegals, but rather, are exclusive functions of lawyers engaged in the practice of law. 22 It should be noted that in our jurisdiction the services being offered by private respondent which constitute practice of law cannot be performed by paralegals. Only a person duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of the Rules of Court, and who is in good and regular standing, is entitled to practice law. 23 Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyers is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client and the bar from the incompetence or

29

dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. 24 The same rule is observed in the american jurisdiction wherefrom respondent would wish to draw support for his thesis. The doctrines there also stress that the practice of law is limited to those who meet the requirements for, and have been admitted to, the bar, and various statutes or rules specifically so provide. 25 The practice of law is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of court. Only those persons are allowed to practice law who, by reason of attainments previously acquired through education and study, have been recognized by the courts as possessing profound knowledge of legal science entitling them to advise, counsel with, protect, or defend the rights claims, or liabilities of their clients, with respect to the construction, interpretation, operation and effect of law. 26 The justification for excluding from the practice of law those not admitted to the bar is found, not in the protection of the bar from competition, but in the protection of the public from being advised and represented in legal matters by incompetent and unreliable persons over whom the judicial department can exercise little control. 27 We have to necessarily and definitely reject respondent's position that the concept in the United States of paralegals as an occupation separate from the law profession be adopted in this jurisdiction. Whatever may be its merits, respondent cannot but be aware that this should first be a matter for judicial rules or legislative action, and not of unilateral adoption as it has done. Paralegals in the United States are trained professionals. As admitted by respondent, there are schools and universities there which offer studies and degrees in paralegal education, while there are none in the Philippines.28 As the concept of the "paralegals" or "legal assistant" evolved in the United States, standards and guidelines also evolved to protect the general public. One of the major standards or guidelines was developed by the American Bar Association which set up Guidelines for the Approval of Legal Assistant Education Programs (1973). Legislation has even been proposed to certify legal assistants. There are also associations of paralegals in the United States with their own code of professional ethics, such as the National Association of Legal Assistants, Inc. and the American Paralegal Association. 29 In the Philippines, we still have a restricted concept and limited acceptance of what may be considered as paralegal service. As pointed out by FIDA, some persons not duly licensed to practice law are or have been allowed limited representation in behalf of another or to render legal services, but such allowable services are limited in scope and extent by the law, rules or regulations granting permission therefor. 30 Accordingly, we have adopted the American judicial policy that, in the absence of constitutional or statutory authority, a person who has not been admitted as an attorney cannot practice law for the proper administration of justice cannot be hindered by the unwarranted intrusion of an unauthorized and unskilled person into the practice of law. 31 That policy should continue to be one of encouraging persons who are unsure of their legal rights and remedies to seek legal assistance only from persons licensed to practice law in the state. 32 Anent the issue on the validity of the questioned advertisements, the Code of Professional Responsibility provides that a lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. 33 He is not supposed to use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or

claim regarding his qualifications or legal services. 34 Nor shall he pay or give something of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. 35 Prior to the adoption of the code of Professional Responsibility, the Canons of Professional Ethics had also warned that lawyers should not resort to indirect advertisements for professional employment, such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like self-laudation. 36 The standards of the legal profession condemn the lawyer's advertisement of his talents. A lawyer cannot, without violating the ethics of his profession. advertise his talents or skill as in a manner similar to a merchant advertising his goods. 37 The prescription against advertising of legal services or solicitation of legal business rests on the fundamental postulate that the that the practice of law is a profession. Thus, in the case of The Director of Religious Affairs. vs. Estanislao R. Bayot 38 an advertisement, similar to those of respondent which are involved in the present proceeding, 39 was held to constitute improper advertising or solicitation. The pertinent part of the decision therein reads: It is undeniable that the advertisement in question was a flagrant violation by the respondent of the ethics of his profession, it being a brazen solicitation of business from the public. Section 25 of Rule 127 expressly provides among other things that "the practice of soliciting cases at law for the purpose of gain, either personally or thru paid agents or brokers, constitutes malpractice." It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and his profession who stoops to and adopts the practices of mercantilism by advertising his services or offering them to the public. As a member of the bar, he defiles the temple of justice with mercenary activities as the moneychangers of old defiled the temple of Jehovah. "The most worthy and effective advertisement possible, even for a young lawyer, . . . . is the establishment of a wellmerited reputation for professional capacity and fidelity to trust. This cannot be forced but must be the outcome of character and conduct." (Canon 27, Code of Ethics.). We repeat, the canon of the profession tell us that the best advertising possible for a lawyer is a well-merited reputation for professional capacity and fidelity to trust, which must be earned as the outcome of character and conduct. Good and efficient service to a client as well as to the community has a way of publicizing itself and catching public attention. That publicity is a normal by-product of effective service which is right and proper. A good and reputable lawyer needs no artificial stimulus to generate it and to magnify his success. He easily sees the difference between a normal by-product of able service and the unwholesome result of propaganda. 40 Of course, not all types of advertising or solicitation are prohibited. The canons of the profession enumerate exceptions to the rule against advertising or solicitation and define the extent to which they may be undertaken. The

30

exceptions are of two broad categories, namely, those which are expressly allowed and those which are necessarily implied from the restrictions. 41 The first of such exceptions is the publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canons, of brief biographical and informative data. "Such data must not be misleading and may include only a statement of the lawyer's name and the names of his professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinction; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented." 42 The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower the dignity or standing of the profession. 43 The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. The publication of a simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. He may likewise have his name listed in a telephone directory but not under a designation of special branch of law. 44 Verily, taking into consideration the nature and contents of the advertisements for which respondent is being taken to task, which even includes a quotation of the fees charged by said respondent corporation for services rendered, we find and so hold that the same definitely do not and conclusively cannot fall under any of the above-mentioned exceptions. The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which is repeatedly invoked and constitutes the justification relied upon by respondent, is obviously not applicable to the case at bar. Foremost is the fact that the disciplinary rule involved in said case explicitly allows a lawyer, as an exception to the prohibition against advertisements by lawyers, to publish a statement of legal fees for an initial consultation or the availability upon request of a written schedule of fees or an estimate of the fee to be charged for the specific services. No such exception is provided for, expressly or impliedly, whether in our former Canons of Professional Ethics or the present Code of Professional Responsibility. Besides, even the disciplinary rule in the Bates case contains a proviso that the exceptions stated therein are "not applicable in any state unless and until it is implemented by such authority in that state." 46 This goes to show that an exception to the general rule, such as that being invoked by herein respondent, can be made only if and when the canons expressly provide for such an exception. Otherwise, the prohibition stands, as in the case at bar. It bears mention that in a survey conducted by the American Bar Association after the decision in Bates, on the attitude of

the public about lawyers after viewing television commercials, it was found that public opinion dropped significantly 47 with respect to these characteristics of lawyers: Trustworthy from 71% to 14% Professional from 71% to 14% Honest from 65% to 14% Dignified from 45% to 14% Secondly, it is our firm belief that with the present situation of our legal and judicial systems, to allow the publication of advertisements of the kind used by respondent would only serve to aggravate what is already a deteriorating public opinion of the legal profession whose integrity has consistently been under attack lately by media and the community in general. At this point in time, it is of utmost importance in the face of such negative, even if unfair, criticisms at times, to adopt and maintain that level of professional conduct which is beyond reproach, and to exert all efforts to regain the high esteem formerly accorded to the legal profession. In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject to disciplinary action, to advertise his services except in allowable instances 48 or to aid a layman in the unauthorized practice of law. 49 Considering that Atty. Rogelio P. Nogales, who is the prime incorporator, major stockholder and proprietor of The Legal Clinic, Inc. is a member of the Philippine Bar, he is hereby reprimanded, with a warning that a repetition of the same or similar acts which are involved in this proceeding will be dealt with more severely. While we deem it necessary that the question as to the legality or illegality of the purpose/s for which the Legal Clinic, Inc. was created should be passed upon and determined, we are constrained to refrain from lapsing into an obiter on that aspect since it is clearly not within the adjudicative parameters of the present proceeding which is merely administrative in nature. It is, of course, imperative that this matter be promptly determined, albeit in a different proceeding and forum, since, under the present state of our law and jurisprudence, a corporation cannot be organized for or engage in the practice of law in this country. This interdiction, just like the rule against unethical advertising, cannot be subverted by employing some so-called paralegals supposedly rendering the alleged support services. The remedy for the apparent breach of this prohibition by respondent is the concern and province of the Solicitor General who can institute the corresponding quo warranto action, 50 after due ascertainment of the factual background and basis for the grant of respondent's corporate charter, in light of the putative misuse thereof. That spin-off from the instant bar matter is referred to the Solicitor General for such action as may be necessary under the circumstances. ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein respondent, The Legal Clinic, Inc., from issuing or causing the publication or dissemination of any advertisement in any form which is of the same or similar tenor and purpose as Annexes "A" and "B" of this petition, and from conducting, directly or indirectly, any activity, operation or transaction proscribed by law or the Code of Professional Ethics as indicated herein. Let copies of this resolution be furnished the Integrated Bar of the Philippines, the Office of the Bar Confidant and the Office of the Solicitor General for appropriate action in accordance herewith.

31

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 Philippines1 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, alladvice 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

32

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: . . . . 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

33

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 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 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

34

permitted to appear and practice before the Patent Office. No costs. January 9, 1973 IN THE MATTER OF THE INTEGRATION OF THE BAR OF THE PHILIPPINES. RESOLUTION

The Report of the Commission abounds with argument on the constitutionality of Bar integration and contains all necessary factual data bearing on the advisability (practicability and necessity) of Bar integration. Also embodied therein are the views, opinions, sentiments, comments and observations of the rank and file of the Philippine lawyer population relative to Bar integration, as well as a proposed integration Court Rule drafted by the Commission and presented to them by that body in a national Bar plebiscite. There is thus sufficient basis as well as ample material upon which the Court may decide whether or not to integrate the Philippine Bar at this time. The following are the pertinent issues: (1) Does the Court have the power to integrate the Philippine Bar? (2) Would the integration of the Bar be constitutional? (3) Should the Court ordain the integration of the Bar at this time? A resolution of these issues requires, at the outset, a statement of the meaning of Bar integration. It will suffice, for this purpose, to adopt the concept given by the Commission on Bar Integration on pages 3 to 5 of its Report, thus: Integration of the Philippine Bar means the official unification of the entire lawyer population of the Philippines. This requires membership and financial support (in reasonable amount) of every attorney as conditions sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court. The term "Bar" refers to the collectivity of all persons whose names appear in the Roll of Attorneys. An Integrated Bar (or Unified Bar) perforce must include all lawyers. Complete unification is not possible unless it is decreed by an entity with power to do so: the State. Bar integration, therefore, signifies the setting up by Government authority of a national organization of the legal profession based on the recognition of the lawyer as an officer of the court. Designed to improve the position of the Bar as an instrumentality of justice and the Rule of Law, integration fosters cohesion among lawyers, and ensures, through their own organized action and participation, the promotion of the objectives of the legal profession, pursuant to the principle of maximum Bar autonomy with minimum supervision and regulation by the Supreme Court. The purposes of an integrated Bar, in general, are: (1) Assist in the administration of justice; (2) Foster and maintain on the part of its members high ideals of integrity, learning,

PER CURIAM: On December 1, 1972, the Commission on Bar Integration 1 submitted its Report dated November 30, 1972, with the "earnest recommendation" on the basis of the said Report and the proceedings had in Administrative Case No. 526 2 of the Court, and "consistently with the views and counsel received from its [the Commission's] Board of Consultants, as well as the overwhelming nationwide sentiment of the Philippine Bench and Bar" that "this Honorable Court ordain the integration of the Philippine Bar as soon as possible through the adoption and promulgation of an appropriate Court Rule." The petition in Adm. Case No. 526 formally prays the Court to order the integration of the Philippine Bar, after due hearing, giving recognition as far as possible and practicable to existing provincial and other local Bar associations. On August 16, 1962, arguments in favor of as well as in opposition to the petition were orally expounded before the Court. Written oppositions were admitted, 3 and all parties were thereafter granted leave to file written memoranda. 4 Since then, the Court has closely observed and followed significant developments relative to the matter of the integration of the Bar in this jurisdiction. In 1970, convinced from preliminary surveys that there had grown a strong nationwide sentiment in favor of Bar integration, the Court created the Commission on Bar Integration for the purpose of ascertaining the advisability of unifying the Philippine Bar. In September, 1971, Congress passed House Bill No. 3277 entitled "An Act Providing for the Integration of the Philippine Bar, and Appropriating Funds Therefor." The measure was signed by President Ferdinand E. Marcos on September 17, 1971 and took effect on the same day as Rep. Act 6397. This law provides as follows: 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. SEC. 2. The sum of five hundred thousand pesos is hereby appropriated, out of any funds in the National Treasury not otherwise appropriated, to carry out the purposes of this Act. Thereafter, such sums as may be necessary for the same purpose shall be included in the annual appropriations for the Supreme Court. SEC. 3. This Act shall take effect upon its approval.

35

professional competence, public service and conduct; (3) Safeguard the professional interests of its members; (4) Cultivate among its members a spirit of cordiality and brotherhood; (5) Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the Bar to the Bench and to the public, and publish information relating thereto; (6) Encourage and foster legal education; (7) Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon; and (8) Enable the Bar to discharge its public responsibility effectively. Integration of the Bar will, among other things, make it possible for the legal profession to: (1) Render more effective assistance in maintaining the Rule of Law; (2) Protect lawyers and litigants against the abuse of tyrannical judges and prosecuting officers; (3) Discharge, fully and properly, its responsibility in the disciplining and/or removal of incompetent and unworthy judges and prosecuting officers; (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; (5) Have an effective voice in the selection of judges and prosecuting officers; (6) Prevent the unauthorized practice of law, and break up any monopoly of local practice maintained through influence or position; (7) Establish welfare funds for families of disabled and deceased lawyers; (8) Provide placement services, and establish legal aid offices and set up lawyer reference services throughout the country so that the poor may not lack competent legal service; (9) Distribute educational and informational materials that are difficult to obtain in many of our provinces; (10) Devise and maintain a program of continuing legal education for practising attorneys in order to elevate the

standards of the profession throughout the country; (11) Enforce rigid ethical standards, and promulgate minimum fees schedules; (12) Create law centers and establish law libraries for legal research; (13) Conduct campaigns to educate the people on their legal rights and obligations, on the importance of preventive legal advice, and on the functions and duties of the Filipino lawyer; and (14) Generate and maintain pervasive and meaningful country-wide involvement of the lawyer population in the solution of the multifarious problems that afflict the nation. Anent the first issue, the Court is of the view that it may integrate the Philippine Bar in the exercise of its power, under Article VIII, Sec. 13 of the Constitution, "to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law." Indeed, the power to integrate is an inherent part of the Court's constitutional authority over the Bar. In providing that "the Supreme Court may adopt rules of court to effect the integration of the Philippine Bar," Republic Act 6397 neither confers a new power nor restricts the Court's inherent power, but is a mere legislative declaration that the integration of the Bar will promote public interest or, more specifically, will "raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively." Resolution of the second issue whether the unification of the Bar would be constitutional hinges on the effects of Bar integration on the lawyer's constitutional rights of freedom of association and freedom of speech, and on the nature of the dues exacted from him. The Court approvingly quotes the following pertinent discussion made by the Commission on Bar Integration pages 44 to 49 of its Report: Constitutionality of Bar Integration Judicial Pronouncements. In all cases where the validity of Bar integration measures has been put in issue, the Courts have upheld their constitutionality. The judicial pronouncements support this reasoning: Courts have inherent power to supervise and regulate the practice of law. The practice of law is not a vested right but a privilege; a privilege, moreover, clothed with public interest, because a lawyer owes 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.

36

Because the practice of law is privilege clothed with public interest, it is far and just that the exercise of that privilege be regulated to assure compliance with the lawyer's public responsibilities. These public responsibilities can best be discharged through collective action; but there can be no collective action without an organized body; no organized body can operate effectively without incurring expenses; therefore, it is fair and just that all attorneys be required to contribute to the support of such organized body; and, given existing Bar conditions, the most efficient means of doing so is by integrating the Bar through a rule of court that requires all lawyers to pay annual dues to the Integrated Bar. 1. Freedom of Association. To compel a lawyer to be a member of an integrated Bar is not violative of his constitutional freedom to associate (or the corollary right not to associate). 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. 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 already a member. 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 body compulsion to which he is subjected is the payment of annual dues. Otherwise stated, membership in the Unified Bar imposes only the duty to pay dues in reasonable amount. The issue therefore, is a question of compelled financial support of group activities, not involuntary membership in any other aspect. The greater part of Unified Bar activities serves the function of elevating the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people. The Supreme Court, in order to further the State's legitimate interest in elevating the quality of professional 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. Assuming that Bar integration does 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. The legal profession has long been regarded as a proper subject of legislative regulation and control. Moreover, the inherent power of

the Supreme Court to regulate the Bar includes the authority to integrate the Bar. 2. Regulatory Fee. For the Court to prescribe dues to be paid by the members does not mean that the Court levies a tax. A membership fee in the Integrated Bar is an exaction for regulation, while the purpose of a tax is revenue. If the Court has inherent power to regulate the Bar, it follows that as an incident to regulation, it may impose a membership fee for that purpose. It would not be possible to push through an Integrated Bar program without means to defray the concomitant expenses. The doctrine of implied powers necessarily includes the power to impose such an exaction. The only limitation upon the State's power to regulate the Bar is that the regulation does not impose an unconstitutional burden. The public interest promoted by the integration of the Bar far outweighs the inconsequential inconvenience to a member that might result from his required payment of annual dues. 3. Freedom of Speech. A lawyer is free, as he has always been, to voice his views on any subject in any manner he wishes, even though such views be opposed to positions taken by the Unified Bar. For the Integrated Bar to use a member's due to promote measures to which said member is opposed, would not nullify or adversely affect his freedom of speech. Since a State may constitutionally condition the right to practice law upon membership in the Integrated Bar, it is difficult to understand why it should become unconstitutional for the Bar to use the member's dues to fulfill the very purposes for which it was established. The objection would make every Governmental exaction the material of a "free speech" issue. Even the income tax would be suspect. The objection would carry us to lengths that have never been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of war or of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been exalted above the powers and the compulsion of the agencies of Government. 4. Fair to All Lawyers. Bar integration is not unfair to lawyers already practising because although the

37

requirement to pay annual dues is a new regulation, it will give the members of the Bar a new system which they hitherto have not had and through which, by proper work, they will receive benefits they have not heretofore enjoyed, and discharge their public responsibilities in a more effective manner than they have been able to do in the past. Because the requirement to pay dues is a valid exercise of regulatory power by the Court, because it will apply equally to all lawyers, young and old, at the time Bar integration takes effect, and because it is a new regulation in exchange for new benefits, it is not retroactive, it is not unequal, it is not unfair. To resolve the third and final issue whether the Court should ordain the integration of the Bar at this time requires a careful overview of the practicability and necessity as well as the advantages and disadvantages of Bar integration. In many other jurisdictions, notably in England, Canada and the United States, Bar integration has yielded the following benefits: (1) improved discipline among the members of the Bar; (2) greater influence and ascendancy of the Bar; (3) better and more meaningful participation of the individual lawyer in the activities of the Integrated Bar; (4) greater Bar facilities and services; (5) elimination of unauthorized practice; (6) avoidance of costly membership campaigns; (7) establishment of an official status for the Bar; (8) more cohesive profession; and (9) better and more effective discharge by the Bar of its obligations and responsibilities to its members, to the courts, and to the public. No less than these salutary consequences are envisioned and in fact expected from the unification of the Philippine Bar. Upon the other hand, it has been variously argued that in the event of integration, Government authority will dominate the Bar; local Bar associations will be weakened; cliquism will be the inevitable result; effective lobbying will not be possible; the Bar will become an impersonal Bar; and politics will intrude into its affairs. It is noteworthy, however, that these and other evils prophesied by opponents of Bar integration have failed to materialize in over fifty years of Bar integration experience in England, Canada and the United States. In all the jurisdictions where the Integrated Bar has been tried, none of the abuses or evils feared has arisen; on the other hand, it has restored public confidence in the Bar, enlarged professional consciousness, energized the Bar's responsibilities to the public, and vastly improved the administration of justice. How do the Filipino lawyers themselves regard Bar integration? The official statistics compiled by the Commission on Bar integration show that in the national poll recently conducted by the Commission in the matter of the integration of the Philippine Bar, of a total of 15,090 lawyers from all over the archipelago who have turned in their individual responses, 14,555 (or 96.45 per cent) voted in favor of Bar integration, while only 378 (or 2.51 per cent) voted against it, and 157 (or 1.04 per cent) are noncommital. In addition, a total of eighty (80) local Bar association and lawyers' groups all over the Philippines have submitted resolutions and other expressions of unqualified endorsement and/or support for Bar integration, while not a single local Bar association or lawyers' group has expressed opposed position thereto. Finally, of the 13,802 individual lawyers who cast their plebiscite ballots on the proposed integration Court Rule drafted by the Commission, 12,855 (or 93.14 per cent) voted in favor thereof, 662 (or 4.80 per cent) vote against it, and 285 (or 2.06 per cent) are non-

committal. 5 All these clearly indicate an overwhelming nationwide demand for Bar integration at this time. The Court is 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," within the context of contemporary conditions in the Philippines, has become an imperative means to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility fully and effectively. ACCORDINGLY, the Court, by virtue of the power vested in it by Section 13 of Article VIII of the Constitution, hereby ordains the integration of the Bar of the Philippines in accordance with the attached COURT RULE, effective on January 16, 1973. 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 the bill to become a law on June 21, 1953 without his signature. The law, which incidentally was enacted in an election year, reads in full as follows: REPUBLIC ACT NO. 972

38

AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM NINETEEN HUNDRED AND FORTY-SIX UP TO AND INCLUDING NINETEEN HUNDRED AND FIFTY-FIVE. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Notwithstanding the provisions of section fourteen, Rule numbered one hundred twenty-seven of the Rules of Court, any bar candidate who obtained a general average of seventy per cent in any bar 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; seventytwo per cent in the in the nineteen hundred and fifty-three bar examinations; seventy-three per cent in the nineteen hundred and fifty-four bar examinations; seventy-four per cent in the nineteen hundred and fifty-five bar examinations without a candidate obtaining a grade below fifty 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 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 seventy-five per cent in any subject in any bar examination after July fourth, nineteen hundred 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 general average that said candidate may obtain in any subsequent examinations that he may take. SEC. 3. This Act shall take effect upon its approval. Enacted on June 21, 1953, without the Executive approval. After its approval, many of the unsuccessful postwar candidates filed petitions for admission to the bar invoking its provisions, while others whose motions for the revision of their examination papers were still pending also invoked the aforesaid law as an additional ground for admission. There are also others who have sought simply the reconsideration of their grades without, however, invoking the law in question. To avoid injustice to individual petitioners, the court first reviewed the motions for reconsideration, irrespective of whether or not they had invoked Republic Act No. 972. Unfortunately, the court has found no reason to revise their grades. If they are to be admitted to the bar, it must be pursuant to Republic Act No. 972 which, if declared valid, 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 of Republic Act No. 972, are appended to this decision as Annexes I and II. And to realize more readily the effects of the law, the following statistical data are set forth: (1) The unsuccessful bar candidates who are to be benefited by section 1 of Republic Act No. 972 total 1,168, classified as follows: 1946 1946 (August) (November) 206 477 121 228 18 43

1947 1948 1949 1950 1951 1952 1953 TOTAL

749 899 1,218 1,316 2,068 2,738 2,555 12,230

340 409 532 893 879 1,033 968 5,421

0 11 164 26 196 426 284 1,168

Of the total 1,168 candidates, 92 have passed in subsequent examination, and only 586 have filed either motions for admission to the bar pursuant to said Republic Act, or mere motions for reconsideration. (2) In addition, some other 10 unsuccessful candidates are to be benefited by section 2 of said Republic Act. These candidates had each taken from two to five different examinations, but failed to obtain a passing average in any of them. Consolidating, however, their highest grades in different subjects in previous examinations, with their latest 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

39

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. 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 Guaria (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,

40

the students in which department were not only subjected to a formal examination by the law committee of the institution, but to a 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

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 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 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)

41

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 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)

42

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 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 to the practice of law in the Philippines. Constitution of the Philippines, Art. VIII, sec. 13. It will be noted that the Constitution has not conferred on Congress and this Tribunal equal responsibilities concerning the admission to the practice of law. the primary power and responsibility which the Constitution recognizes continue to reside in this Court. Had Congress found that this Court has not promulgated any rule on the matter, it would have nothing over which to exercise the power granted to it. Congress may repeal, alter and supplement the rules promulgated by this Court, but the authority and responsibility over the admission, suspension, disbarment and reinstatement of attorneys at law and their supervision remain vested in the Supreme Court. The power to repeal, alter and supplement the rules does not signify nor permit that Congress substitute or take the place of this Tribunal in the exercise of its primary power on the matter. The Constitution does not say nor mean that Congress may admit, suspend, disbar or reinstate directly attorneys at law, or a determinate group of individuals to the practice of law.

43

Its power is limited 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 profession requires it. But this power does not relieve this Court of its responsibility to admit, suspend, disbar and reinstate attorneys at law and supervise the practice of the legal profession. Being coordinate and independent branches, the power to promulgate and enforce rules for the admission to the practice of law and the concurrent power to repeal, alter and supplement them may and should be exercised with the respect that each owes to the other, giving careful consideration to the responsibility which the nature of each department requires. These powers have existed together for centuries without diminution on each part; the harmonious delimitation being found in that the legislature may and should examine if the existing rules on the admission to the Bar respond to the demands which public interest requires of a Bar endowed with high virtues, culture, training and responsibility. The legislature may, by means of appeal, amendment or supplemental rules, fill up any deficiency that it may find, and the judicial power, which has the inherent responsibility for a good and efficient administration of justice and the supervision of the practice of the legal profession, should consider these reforms as the minimum standards for the elevation of the profession, and see to it that with these reforms the lofty objective that is desired in the exercise of its traditional duty of 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 other in attaining the establishment of a Bar that would respond to the increasing and exacting necessities of the administration of justice. The case of Guaria (1913) 24 Phil., 37, illustrates our criterion. Guaria took examination and failed by a few points to obtain the general average. A recently enacted law provided that one who had been appointed to the position of Fiscal may be admitted to the practice of law without a previous examination. The Government appointed Guaria and he discharged the duties of Fiscal in a remote province. This tribunal refused to give his license without previous examinations. The court said: Relying upon the provisions of section 2 of Act No. 1597, the applicant in this case seeks admission to the bar, without taking the prescribed examination, on the ground that he holds the office of provincial fiscal for the Province of Batanes. Section 2 of Act No. 1597, enacted February 28, 1907, is as follows: Sec. 2. Paragraph one of section thirteen of Act Numbered One Hundred and ninety, entitled "An Act providing a Code of Procedure in Civil Actions and Special Proceedings in the Philippine Islands," is hereby amended to read as follows: 1. Those who have been duly licensed under the laws and orders of the Islands under the sovereignty of Spain or of the United States and are in good and regular standing as members of the bar of the Philippine Islands at the time of the adoption of this code; Provided, That any person who, prior to the passage of this act, or at any time thereafter, shall have held, under the authority of the United States, the position of justice of the Supreme Court, judge of the Court of First Instance, or judge or associate judge of the Court of Land Registration, of the Philippine Islands, or the position of Attorney General, Solicitor General, Assistant Attorney General, assistant attorney in the office of the

Attorney General, prosecuting attorney for the City of Manila, city attorney of Manila, assistant city attorney of Manila, provincial fiscal, attorney for the Moro Province, or assistant attorney for the Moro Province, may be licensed to practice law in the courts of the Philippine Islands without an examination, upon motion before the Supreme Court and establishing such fact to the satisfaction of said court. 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 Guaria, 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

44

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 Guaria, pp. 48-49.) 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

45

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 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 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

46

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 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.

47

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.

On 29 November 1983, * this Court sustained the charge of unauthorized practice of law filed against respondent Sabandal and accordingly denied the latter's petition to be allowed to take the oath as member of the Philippine Bar and to sign the Roll of Attorneys. From 1984-1988, Sabandal filed Motions for Reconsideration of the aforesaid Resolution, all of which were either denied or "Noted without action." The Court, however, on 10 February 1989, after considering his plea for mercy and forgiveness, his willingness to reform and the several testimonials attesting to his good moral character and civic consciousness, reconsidered its earlier Resolution and finally allowed him to take the lawyer's oath "with the Court binding him to his assurance that he shall strictly abide by and adhere to the language, meaning and spirit of the Lawyer's Oath and the highest standards of the legal profession" (Yap Tan v. Sabandal, 10 February 1989, 170 SCRA 211). However, before a date could be set for Sabandal's oathtaking, complainants Tan, Dagpin and Boquia each filed separate motions for reconsideration of the Resolution of 10 February 1989. These were acted upon in the Resolution of 4 July 1989 hereunder quoted, in part, for ready reference: On 7 April 1989, Complainant Herve Dagpin in SBC No. 616, and Complainant Moises Boquia in SBC No. 609 also filed a Motion for Reconsideration of our Resolution allowing respondent to take his oath. They alleged that respondent had deliberately and maliciously excluded them in his Petition of 28 June 1988. That, of course, is without merit considering that in his Petition of 28 June 1988, respondent had discussed said cases quite lengthily. On 27 April 1989, Complainant Tan also manifested that Complainant Benjamin Cabigon in BM No. 59 and Complainant Cornelio Agnis in SBC No. 624, had passed away so that they are in no position to submit their respective Comments. One of the considerations we had taken into account in allowing respondent to take his oath, was a testimonial from the IBP Zamboanga del Norte Chapter, dated 29 December 1986, certifying that respondent was "acting with morality and has been careful in his actuations in the community." Complainant Tan maintains that said IBP testimonial was signed only by the then President of the IBP, Zamboanga del Norte Chapter, Atty. Senen O. Angeles, without authorization from the Board of Officers of said Chapter; and that Atty. Angeles was respondent's own counsel as well as the lawyer of respondent's parents-in-law in CAR Case No. 347, Ozamiz City. Attached to Complainant's Motion for Reconsideration was a Certification, dated 24 February 1989, signed by the IBP Zamboanga del Norte Chapter President, Atty. Norberto L. Nuevas, stating that "the present Board of Officers with the undersigned as President had not issued any testimonial attesting to the good moral character and civic consciousness of Mr. Nicolas Sabandal."

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, 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. B.M. No. 44 February 24, 1992 EUFROSINA Y. TAN, complainant, vs. NICOLAS EL. SABANDAL, respondent. SBC No. 609 February 24, 1992 MOISES B. BOQUIA, complainant, vs. NICOLAS EL. SABANDAL, respondent. SBC No. 616 February 24, 1992 HERVE DAGPIN, complainant, vs. NICOLAS EL. SABANDAL, respondent. Nelbert T. Paculan for respondent. Moises B. Boquia for himself and Herve Dagpin. RESOLUTION

MELENCIO-HERRERA, J.:

48

In his Comment, received by the Court on 27 March 1989, respondent states that the IBP testimonial referred to by Complainant Tan must have been that signed by the former IBP Zamboanga del Norte Chapter President, Atty. Senen O. Angeles, addressed to the Chief Justice, dated 29 December 1986, and that he himself had not submitted to the Court any certification from the IBP Zamboanga del Norte Chapter Board of Officers of 1988-1989. Under the circumstances, the Court has deemed it best to require the present Board of Officers of the IBP, Zamboanga del Norte Chapter, to MANIFEST whether or not it is willing to give a testimonial certifying to respondent's good moral character as to entitle him to take the lawyer's oath, and if not, the reason therefor. The Executive Judge of the Regional Trial Court of Zamboanga del Norte is likewise required to submit a COMMENT on respondent's moral fitness to be a member of the Bar. Compliance herewith is required within ten (10) days from notice. Pursuant to the aforesaid Resolution, Judge Pelagio R. Lachica, Executive Judge of the Regional Trial Court of Zamboanga del Norte, filed his Comment, dated 4 August 1989, and received on 25 August 1989, pertinently reading: The undersigned, who is not well acquainted personally with the respondent, is not aware of any acts committed by him as would disqualify him from admission to the Bar. It might be relevant to mention, however, that there is Civil Case No. 3747 entitled Republic of the Philippines, Represented by the Director of Lands, Plaintiff, versus Nicolas Sabandal, Register of Deeds of Zamboanga del Norte and Rural Bank of Pinan, (Zamboanga del Norte), Inc., for Cancellation of Title and/or Reversion pending in this Court in which said respondent, per complaint filed by the Office of the Solicitor General, is alleged to have secured a free patent and later a certificate of title to a parcel of land which, upon investigation, turned out to be a swampland and not susceptible of acquisition under a free patent, and which he later mortgaged to the Rural Bank of Pinan (ZN) Inc. The mortgage was later foreclosed and the land sold at public auction and respondent has not redeemed the land until the present. (Emphasis Supplied) The IBP Zamboanga del Norte Chapter also submitted a Certification, dated 2 February 1990, signed by its Secretary Peter Y. Co and attested to by its President Gil L. Batula, to wit: This is to certify that based on the certifications issued by the Office of the Clerk of CourtMunicipal Trial Court in the City of Dipolog; Regional Trial Court of Zamboanga del Norte and the Office of the Provincial and City Prosecutors, Mr. Nicolas E. Sabandal has not been convicted of any crime, nor is there any

pending derogatory criminal case against him. Based on the above findings, the Board does not find any acts committed by the petitioner to disqualify him from admission to the Philippine Bar. We required the complainants to comment on the aforesaid IBP Certification and to reply to Executive Judge Pelagio Lachica's comment in our Resolution of 15 February 1990. On 17 April 1990, after taking note of the unrelenting vehement objections of complainants Tan (in BM 44) and Boquia (in SBC 616) and the Certification by Executive Judge Lachica, dated 4 August 1989, that there is a pending case before his Court involving respondent Sabandal, this Court resolved to DEFER the setting of a date for the oath-taking of respondent Sabandal and required Judge Lachica to inform this Court of the outcome of the case entitled Republic v. Sabandal, (Civil Case 3747), pending before his "Sala" as soon as resolved. In the meantime, on 18 April 1990, the Court received another Comment, dated 13 March 1990, by complainant Herve Dagpin in SBC 609, vehemently objecting to the oathtaking of respondent Sabandal and describing his actuations in Civil Case 3747 as manipulative and surreptitious. This comment was Noted in the Resolution of 22 May 1990. In a letter, addressed to the Chief Justice, dated 15 August 1990, complainant Tan in Bar Matter 44, informed the Court that her relationship with Sabandal has "already been restored," as he had asked forgiveness for what has been done to her and that she finds no necessity in pursuing her case against him. Complainant Tan further stated that she sees no further reason to oppose his admission to the Bar as he had shown sincere repentance and reformation which she believes make him morally fit to become a member of the Philippine Bar. "In view of this development," the letter stated, "we highly recommend him for admission to the legal profession and request this Honorable Court to schedule his oath-taking at a time most convenient." This letter was Noted in the Resolution of 2 October 1990, which also required a comment on Tan's letter from complainants Boquia and Dagpin. Moises Boquia, for himself, and complainant Dagpin, in their comment, dated 5 November 1990, stated thus: Eufrosina Yap Tan's letter dated 15 August 1990 is a private personal disposition which raises the question whether personal forgiveness is enough basis to exculpate and obliterate these cases. On our part, we believe and maintain the importance and finality of the Honorable Supreme Court's resolutions in these cases. . . . It is not within the personal competence, jurisdiction and discretion of any party to change or amend said final resolutions which are already res judicata. Viewed in the light of the foregoing final and executory resolutions, these cases therefore should not in the least be considered as anything which is subject and subservient to the changing moods and dispositions of the parties, devoid of any permanency or finality. Respondent's scheming change in tactics and strategy could not improve his case. The above was "Noted" in the Resolution of 29 November 1990.

49

In compliance with the Resolution of 2 October 1990, Judge Pacifico M. Garcia, Regional Trial Court Judge of Branch 8, Dipolog City (who apparently succeeded Judge Pelagio Lachica, the latter having availed of optional retirement on 30 June 1990) submitted to this Court, on 17 December 1990, a copy of the "Judgment," dated 12 December 1990, in Civil Case 3747, entitled "Republic of the Philippines v. Nicolas Sabandal et al" for Cancellation of Title and/or Reversion, which, according to him, was already considered closed and terminated. Said judgment reveals that an amicable settlement, dated 24 October 1990, had been reached between the principal parties, approved by the Trial Court, and conformed to by the counsel for defendant Rural Bank of Pinan. Briefly, the said amicable settlement cancelled the Original Certificate of Title under Free Patent in Sabandal's name and the latter's mortgage thereof in favor of the Rural Bank of Pinan; provided for the surrender of the certificate of title to the Register of Deeds for proper annotation; reverted to the mass of public domain the land covered by the aforesaid Certificate of' Title with defendant Sabandal refraining from exercising acts of possession or ownership over said land; caused the defendant Sabandal to pay defendant Rural Bank of Pinan the sum of P35,000 for the loan and interest; and the Rural Bank of Pinan to waive its cross-claims against defendant Nicolas Sabandal. Judge Pacifico Garcia's letter and the afore-mentioned Judgment were NOTED in our Resolution of 29 January 1991. In the same Resolution, complainants Tan, Boquia and Dagpin were required to comment on the same. Upon request of Sabandal, a certification, dated 20 December 1990, was sent by Executive judge Jesus Angeles of the RTC of Zamboanga del Norte, certifying that Sabandal has no pending case with his Court and that he has no cause to object to his admission to the Philippine Bar. This was "Noted" in the Resolution of 26 February 1991. Meanwhile, Sabandal reiterated his prayer to be allowed to take the lawyer's oath in a Motion dated 8 June 1991. In our Resolution of 1 August 1991, we deferred action on the aforesaid Motion pending compliance by the complainants with the Resolution of 29 January 1991 requiring them to comment on the letter of Judge Pacifico M. Garcia. To date, only complainant Tan has complied with the said Resolution by submitting a Comment, dated 29 August 1991, stating that the termination of Civil Case No. 3747 is "proof of Sabandal's sincere reformation, of his repentance with restitution of the rights of complainants he violated," and that "there is no more reason to oppose his admission to the Bar." This was "Noted" in the Resolution of 24 September 1991. In a Manifestation, dated 6 December 1991, Sabandal reiterates his plea to be allowed to take the Lawyer's Oath. His plea must be DENIED. In our Resolution of 10 February 1989, Sabandal was allowed to take the oath, ten (10) years having elapsed from the time he took and passed the 1976 Bar examinations, after careful consideration of his show of contrition and willingness to reform. Also taken cognizance of were the several testimonials attesting to his good moral character and civic consciousness. At that time, we had not received the objections from complainant Tan to Sabandal's taking the oath nor were we aware of the gravity of the civil case against him.

It turns out that Civil Case No. 3747 entitled "Republic of the Philippines v. Nicolas Sabandal" was instituted by the Government in 1985 and was brought about because of respondent's procurement of a certificate of free patent over a parcel of land belonging to the public domain and its use as security for a mortgage in order to obtain a loan. At that time, Sabandal was an employee of the Bureau of Lands. He did not submit any defense and was declared it default by order of the RTC dated 26 November 1986. The controversy was eventually settled by mere compromise with respondent surrendering the bogus certificate of title to the government and paying-off the mortgagor, "to buy peace and forestall further expenses of litigation incurred by defendants" (Rollo, Judgment in Civil Case No. 3747). The Office of the Solicitor General interposed no objection to the approval of the said amicable settlement and prayed that judgment be rendered in accordance therewith, "as the amicable settlement may amount to a confession by the defendant" (Rollo, supra). It must also be stressed that in 1985, at the time said case was instituted, Sabandal's petition to take the lawyer's oath had already been denied on 29 November 1983 and he was then submitting to this Court motions for reconsideration alleging his good moral character without, however, mentioning the pendency of that civil case against him. In view of the nature of that case and the circumstances attending its termination, the Court now entertains second thoughts about respondent's fitness to become a member of the Bar. It should be recalled that Sabandal worked as Land Investigator at the Bureau of Lands. Said employment facilitated his procurement of the free patent title over property which he could not but have known was public land. This was manipulative on his part and does not speak well of his moral character. It is a manifestation of gross dishonesty while in the public service, which can not be erased by the termination of the case filed by the Republic against him where no determination of his guilt or innocence was made because the suit had been compromised. Although as the Solicitor General had pointed out, the amicable settlement was tantamount to a confession on his part. What is more, he could not but have known of the intrinsic invalidity of his title and yet he took advantage of it by securing a bank loan, mortgaging it as collateral, and notwithstanding the foreclosure of the mortgage and the sale of the land at public auction, he did not lift a finger to redeem the same until the civil case filed against him was eventually compromised. This is a sad reflection on his sense of honor and fair dealing. His failure to reveal to this Court the pendency of the civil case for Reversion filed against him during the period that he was submitting several Motions for Reconsideration before us also reveal his lack of candor and truthfulness. There are testimonials attesting to his good moral character, yes. But these were confined to lack of knowledge of the pendency of any criminal case against him and were obviously made without awareness of the facts and circumstances surrounding the case instituted by the Government against him. Those testimonials can not, therefore, outweigh nor smother his acts of dishonesty and lack of good moral character. That the other complainants, namely, Moises Boquia (in SBC 606) and Herve Dagpin (in SBC 619) have not submitted any opposition to his motion to take the oath, is of no moment. They have already expressed their objections in their earlier comments. That complainant Tan has withdrawn her objection to his taking the oath can neither tilt the balance in his favor, the basis of her complaint treating as it does of another subject matter. Time and again, it has been held that the practice of law is not a matter of right. It is a privilege bestowed upon

50

individuals who are not only learned in the law but who are also known to possess good moral character: The Supreme Court and the Philippine Bar have always tried to maintain a high standard for the legal profession, both in academic preparation and legal training as well as in honesty and fair dealing. The Court and the licensed lawyers themselves are vitally interested in keeping this high standard; and one of the ways of achieving this end is to admit to the practice of this noble profession only those persons who are known to be honest and to possess good moral character. . . . (In re Parazo, 82 Phil. 230). Although the term "good moral character" admits of broad dimensions, it has been defined as "including at least common honesty" (Royong v. Oblena, Adm. Case No. 376, April 30, 1963, 7 SCRA 859; In re Del Rosario, 52 Phil. 399 [1928]). It has also been held that no moral qualification for bar membership is more important than truthfulness or candor (Fellner v. Bar Association of Baltimore City, 131 A. 2d 729). WHEREFORE, finding respondent Sabandal to be unfit to become a member of the BAR, this Court's Resolution, dated 10 February 1989 is RECALLED and his prayer to be allowed to take the lawyer's oath is hereby denied. SO ORDERED. A.C. No. 4369 November 28, 1997 PIKE P. ARRIETA, complainant, vs. ATTY. JOEL A. LLOSA, respondent. RESOLUTION

The designated Investigating Commissioner of the Integrated Bar of the Philippines recommended the dismissal of the instant case. The Board of Governors of the Integrated Bar of the Philippines adopted the above recommendation and resolved to dismiss the instant case after finding no compelling reason to continue with the disbarment proceedings. This Court cannot agree. Sec. 1 of Public Act No. 2103 provides: (a) The acknowledgment shall be made before a notary public or an officer duly authorized by law of the country to take acknowledgment of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. It is thus clear from the foregoing that the party acknowledging must appear before the notary public or any person authorized to take acknowledgment of instruments or documents. 4 Aside from being required to appear before the Notary Public, it is similarly incumbent upon the person acknowledging the instrument to declare before the same Notary Public that the execution of the instrument was done by him of his own free will. In the Acknowledgment of the Deed of Sale, respondent certified: "BEFORE ME, this 24th day of March, 1993 at Dumaguete City, Philippines, personally appeared . . . Jesus Bonilla; . . . Leonardo Toledano; . . . . " 5 Respondent claims that as a Notary Public, he asked the signatories whether the signatures appearing above their respective names were theirs, and whether they voluntarily executed the Deed of Absolute Sale. In order to ascertain their identities, respondent asked for their respective residence certificates. Except for Edelina T. Bonilla whose alleged death was not evidenced by a death certificate, respondent certified in the acknowledgment that Jesus T. Bonilla and Leonardo P. Toledano personally appeared before him. Respondent's acts require the presence of the vendors to be able to verify the authenticity of their signatures, the identities of the signatories and the voluntariness of the execution of the Deed. It defies imagination and belief how these could have happened. It would have been impossible, both physically and legally, for Jesus T. Bonilla and Leonardo P. Toledano to have personally subscribed and sworn before respondent as to the authenticity and validity of the Deed of Sale as they had already passed on to the Great Beyond prior to the execution of the said documents. Yet, respondent certified to this effect. By affixing his notarial seal on the instrument, he converted the Deed of Absolute Sale, from being a private document into a public document. By certifying the Deed, respondent, in effect, proclaimed to the world (1) that all the parties therein personally appeared before him; (2) that they are all personally known to him; (3) that they were the same persons who executed the instruments; (4) that he inquired into the voluntariness of execution of the instrument; and (5) they acknowledged personally before him that they voluntarily and freely executed the same.

ROMERO, J.: Complainant Pike P. Arrieta prays for the disbarment of Atty. Joel A. Llosa for certifying under oath a Deed of Absolute Sale. Particularly, complainant avers that respondent notarized a Deed of Absolute Sale dated March 24, 1993 1 making it appear that some of the vendors in said Deed namely, Edelina T. Bonilla, Jesus T. Bonilla and Leonardo P. Toledano were parties and signatories thereto when in truth and in fact, all three were already dead prior to the execution of the said Deed of Absolute Sale. Jesus T. Bonilla died on August 22, 1992 2 while Leonardo P. Toledano died on November 1, 1992. 3 Edelina T. Bonilla allegedly died on or about June 11, 1992. In answer, respondent admitted having notarized the Deed of Absolute Sale. But before affixing his notarial seal, he first ascertained the authenticity of the signatures, verified the identities of the signatories, and determined the voluntariness of its execution. Satisfied with all of the above, it was only then that he certified the document. Curiously, on September 9, 1996, complainant had a complete turn-around and moved for the dismissal of his complaint. He alleged that the instant case is only a product of misunderstanding and misinterpretation of some facts and is now convinced that everything is in order.

51

Notarization is not an empty, meaningless, routinary act. On the contrary, it is invested with substantial public interest, such that only those who are qualified or authorized may act as notaries public. Notarization of a private document converts the document into a public one making it admissible in court without further proof of its authenticity. 6 A notarial document is by law entitled to full faith and credit upon its face and, for this reason, notaries public must observe with the utmost care the basic requirements in the performance of their duties. Otherwise, the confidence of the public in the integrity of this form of conveyance would be undermined. 7 As a lawyer commissioned to be a notary public, respondent is mandated to discharge his sacred duties which are dictated by public policy and, as such, impressed with public interest. Faithful observance and utmost respect of the legal solemnity of an oath in an acknowledgment or jurat is sacrosanct. 8 It is for the above reason that this Court is most concerned about the explanation given by complainant for withdrawing his complaint against respondent. In his Motion to Dismiss dated September 9, 1996, complainant declares: xxx xxx xxx That he is now fully convinced that everything was in order, and that nobody was ever prejudiced by the acts of the respondent. Herein complainant has realized that he himself, or any other legal practitioner, would have done similarly as the respondent, if confronted with such an urgent voluntary transaction in an emergency situation; . . . . That respondent acted the way he did because he was confronted with an alleged urgent situation is no excuse at all. As an individual, and even more so as a member of the legal profession, he is required to obey the laws of the land AT ALL TIMES, to refrain from engaging in unlawful, dishonest, immoral or deceitful conduct AT ALL TIMES, to uphold the integrity of his profession AT ALL TIMES, to promote respect to his profession AT ALL TIMES, and to act with justice AT ALL TIMES. It is dismaying to note how respondent so cavalierly disregarded the requirements and solemnities of the Notarial Law simply to accommodate his clients. Not only did he commit an illegal act but also did so without thinking of the possible damage or prejudice that might result from non-observance of the same. As a lawyer, respondent breached his professional responsibility by certifying under oath an instrument fully knowing that some of the signatories thereto were long dead. This Court cannot countenance this practice, especially coming, as it does, from respondent who formerly served as president of the Integrated Bar of the Philippines-Negros Oriental Chapter, President of the Dumaguete Lions Club and City Councilor of Dumaguete. If indeed respondent had taken steps to verify the identities of the signatories, he would have easily known that the signatures were fake as they purported to be those of his former clients. It is worth stressing that the practice of law is not a right but a privilege bestowed by the State on those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege.9 [M]embership in the bar is a privilege burdened with conditions. There being no lifetime guaranty, a lawyer has the privilege and right to practice law only during good behavior and can be deprived of it for misconduct

ascertained and declared by judgment of the court after opportunity to be heard has been afforded him. 10 Pursuant to the foregoing, it is primarily required of lawyers to obey the Constitution and laws of the land. 11 They must refrain from engaging in unlawful, dishonest, immoral or deceitful conduct. 12 An attorney may be disbarred or suspended for any violation of his oath or of his duties as an attorney and counsellor, which include statutory grounds enumerated in Section 27, Rule 138 of the Rules of Court, all of these being broad enough to cover practically any misconduct of a lawyer in his professional or private capacity. 13 Respondent's act of certifying under oath a Deed of Absolute Sale knowing that some of the vendors were already dead, they being his former clients, constitutes misconduct. But this being his first administrative offense, such should no warrant the supreme penalty of disbarment. ACCORDINGLY, this Court finds respondent Atty. Joel A. Llosa guilty of misconduct. Consequently, he is ordered SUSPENDED from the practice of law for six (6) months effective immediately, with a warning that another infraction would be dealt with more severely. Let copies of this Resolution be furnished all the courts of the land as well as the Integrated Bar of the Philippines, the Office of the Bar Confidant and recorded in the personal files of respondent himself. SO ORDERED. AC No. 99-634 June 10, 2002

DOMINADOR P. BURBE, complainant, vs. ATTY. ALBERTO C. MAGULTA, respondent. PANGANIBAN, J.: After agreeing to take up the cause of a client, a lawyer owes fidelity to both cause and client, even if the client never paid any fee for the attorney-client relationship. Lawyering is not a business; it is a profession in which duty to public service, not money, is the primary consideration. The Case Before us is a Complaint for the disbarment or suspension or any other disciplinary action against Atty. Alberto C. Magulta. Filed by Dominador P. Burbe with the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) on June 14, 1999, the Complaint is accompanied by a Sworn Statement alleging the following: "x x x xxx xxx

"That in connection with my business, I was introduced to Atty. Alberto C. Magulta, sometime in September, 1998, in his office at the Respicio, Magulta and Adan Law Offices at 21-B Otero Building, Juan de la Cruz St., Davao City, who agreed to legally represent me in a money claim and possible civil case against certain parties for breach of contract; "That consequent to such agreement, Atty. Alberto C. Magulta prepared for me the demand letter and some other legal papers, for which services I have accordingly paid; inasmuch, however, that I failed

52

to secure a settlement of the dispute, Atty. Magulta suggested that I file the necessary complaint, which he subsequently drafted, copy of which is attached as Annex A, the filing fee whereof will require the amount of Twenty Five Thousand Pesos (P25,000.00); "That having the need to legally recover from the parties to be sued I, on January 4, 1999, deposited the amount of P25,000.00 to Atty. Alberto C. Magulta, copy of the Receipt attached as Annex B, upon the instruction that I needed the case filed immediately; "That a week later, I was informed by Atty. Alberto C. Magulta that the complaint had already been filed in court, and that I should receive notice of its progress; "That in the months that followed, I waited for such notice from the court or from Atty. Magulta but there seemed to be no progress in my case, such that I frequented his office to inquire, and he would repeatedly tell me just to wait; "That I had grown impatient on the case, considering that I am told to wait [every time] I asked; and in my last visit to Atty. Magulta last May 25, 1999, he said that the court personnel had not yet acted on my case and, for my satisfaction, he even brought me to the Hall of Justice Building at Ecoland, Davao City, at about 4:00 p.m., where he left me at the Office of the City Prosecutor at the ground floor of the building and told to wait while he personally follows up the processes with the Clerk of Court; whereupon, within the hour, he came back and told me that the Clerk of Court was absent on that day; "That sensing I was being given the run-around by Atty. Magulta, I decided to go to the Office of the Clerk of Court with my draft of Atty. Magulta's complaint to personally verify the progress of my case, and there told that there was no record at all of a case filed by Atty. Alberto C. Magulta on my behalf, copy of the Certification dated May 27, 1999, attached as Annex C; "That feeling disgusted by the way I was lied to and treated, I confronted Atty. Alberto C. Magulta at his office the following day, May 28, 1999, where he continued to lie to with the excuse that the delay was being caused by the court personnel, and only when shown the certification did he admit that he has not at all filed the complaint because he had spent the money for the filing fee for his own purpose; and to appease my feelings, he offered to reimburse me by issuing two (2) checks, postdated June 1 and June 5, 1999, in the amounts of P12,000.00 and P8,000.00, respectively, copies of which are attached as Annexes D and E; "That for the inconvenience, treatment and deception I was made to suffer, I wish to complain Atty. Alberto C. Magulta for misrepresentation, dishonesty and oppressive conduct;" xxx xxx x x x.1

former's law partners. After their meeting, complainant requested him to draft a demand letter against Regwill Industries, Inc. -- a service for which the former never paid. After Mr. Said Sayre, one of the business partners of complainant, replied to this letter, the latter requested that another demand letter -- this time addressed to the former -be drafted by respondent, who reluctantly agreed to do so. Without informing the lawyer, complainant asked the process server of the former's law office to deliver the letter to the addressee. Aside from attending to the Regwill case which had required a three-hour meeting, respondent drafted a complaint (which was only for the purpose of compelling the owner to settle the case) and prepared a compromise agreement. He was also requested by complainant to do the following: 1. Write a demand letter addressed to Mr. Nelson Tan 2. Write a demand letter addressed to ALC Corporation 3. Draft a complaint against ALC Corporation 4. Research on the Mandaue City property claimed by complainant's wife All of these respondent did, but he was never paid for his services by complainant. Respondent likewise said that without telling him why, complainant later on withdrew all the files pertinent to the Regwill case. However, when no settlement was reached, the latter instructed him to draft a complaint for breach of contract. Respondent, whose services had never been paid by complainant until this time, told the latter about his acceptance and legal fees. When told that these fees amounted to P187,742 because the Regwill claim was almost P4 million, complainant promised to pay on installment basis. On January 4, 1999, complainant gave the amount of P25,000 to respondent's secretary and told her that it was for the filing fee of the Regwill case. When informed of the payment, the lawyer immediately called the attention of complainant, informing the latter of the need to pay the acceptance and filing fees before the complaint could be filed. Complainant was told that the amount he had paid was a deposit for the acceptance fee, and that he should give the filing fee later. Sometime in February 1999, complainant told respondent to suspend for the meantime the filing of the complaint because the former might be paid by another company, the First Oriental Property Ventures, Inc., which had offered to buy a parcel of land owned by Regwill Industries. The negotiations went on for two months, but the parties never arrived at any agreement. Sometime in May 1999, complainant again relayed to respondent his interest in filing the complaint. Respondent reminded him once more of the acceptance fee. In response, complainant proposed that the complaint be filed first before payment of respondent's acceptance and legal fees. When respondent refused, complainant demanded the return of the P25,000. The lawyer returned the amount using his own personal checks because their law office was undergoing extensive renovation at the time, and their office personnel were not reporting regularly. Respondent's checks were accepted and encashed by complainant.

On August 6, 1999, pursuant to the July 22, 1999 Order of the IBP Commission on Bar Discipline,2 respondent filed his Answer3 vehemently denying the allegations of complainant "for being totally outrageous and baseless." The latter had allegedly been introduced as a kumpadre of one of the

53

Respondent averred that he never inconvenienced, mistreated or deceived complainant, and if anyone had been shortchanged by the undesirable events, it was he. The IBP's Recommendation In its Report and Recommendation dated March 8, 2000, the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) opined as follows: "x x x [I]t is evident that the P25,000 deposited by complainant with the Respicio Law Office was for the filing fees of the Regwill complaint. With complainant's deposit of the filing fees for the Regwill complaint, a corresponding obligation on the part of respondent was created and that was to file the Regwill complaint within the time frame contemplated by his client, the complainant. The failure of respondent to fulfill this obligation due to his misuse of the filing fees deposited by complainant, and his attempts to cover up this misuse of funds of the client, which caused complainant additional damage and prejudice, constitutes highly dishonest conduct on his part, unbecoming a member of the law profession. The subsequent reimbursement by the respondent of part of the money deposited by complainant for filing fees, does not exculpate the respondent for his misappropriation of said funds. Thus, to impress upon the respondent the gravity of his offense, it is recommended that respondent be suspended from the practice of law for a period of one (1) year."4 The Court's Ruling We agree with the Commission's recommendation. Main Issue: Misappropriation of Client's Funds Central to this case are the following alleged acts of respondent lawyer: (a) his non-filing of the Complaint on behalf of his client and (b) his appropriation for himself of the money given for the filing fee. Respondent claims that complainant did not give him the filing fee for the Regwill complaint; hence, the former's failure to file the complaint in court. Also, respondent alleges that the amount delivered by complainant to his office on January 4, 1999 was for attorney's fees and not for the filing fee. We are not persuaded. Lawyers must exert their best efforts and ability in the prosecution or the defense of the client's cause. They who perform that duty with diligence and candor not only protect the interests of the client, but also serve the ends of justice. They do honor to the bar and help maintain the respect of the community for the legal profession.5 Members of the bar must do nothing that may tend to lessen in any degree the confidence of the public in the fidelity, the honesty, and integrity of the profession.6 Respondent wants this Court to believe that no lawyer-client relationship existed between him and complainant, because the latter never paid him for services rendered. The former adds that he only drafted the said documents as a personal favor for the kumpadre of one of his partners. We disagree. A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advice regarding the former's business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any

previous occasion. It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought. If a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employment is established.7 Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the nonpayment of the former's fees.8 Hence, despite the fact that complainant was kumpadreof a law partner of respondent, and that respondent dispensed legal advice to complainant as a personal favor to the kumpadre, the lawyer was duty-bound to file the complaint he had agreed to prepare -- and had actually prepared -- at the soonest possible time, in order to protect the client's interest. Rule 18.03 of the Code of Professional Responsibility provides that lawyers should not neglect legal matters entrusted to them. This Court has likewise constantly held that once lawyers agree to take up the cause of a client, they owe fidelity to such cause and must always be mindful of the trust and confidence reposed in them.9 They owe entire devotion to the interest of the client, warm zeal in the maintenance and the defense of the client's rights, and the exertion of their utmost learning and abilities to the end that nothing be taken or withheld from the client, save by the rules of law legally applied.10 Similarly unconvincing is the explanation of respondent that the receipt issued by his office to complainant on January 4, 1999 was erroneous. The IBP Report correctly noted that it was quite incredible for the office personnel of a law firm to be prevailed upon by a client to issue a receipt erroneously indicating payment for something else. Moreover, upon discovering the "mistake" -- if indeed it was one -respondent should have immediately taken steps to correct the error. He should have lost no time in calling complainant's attention to the matter and should have issued another receipt indicating the correct purpose of the payment. The Practice of Law -- a Profession, Not a Business In this day and age, members of the bar often forget that the practice of law is a profession and not a business.11Lawyering is not primarily meant to be a moneymaking venture, and law advocacy is not a capital that necessarily yields profits.12 The gaining of a livelihood is not a professional but a secondary consideration.13 Duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves. The practice of law is a noble calling in which emolument is a byproduct, and the highest eminence may be attained without making much money.14 In failing to apply to the filing fee the amount given by complainant -- as evidenced by the receipt issued by the law office of respondent -- the latter also violated the rule that lawyers must be scrupulously careful in handling money entrusted to them in their professional capacity.15 Rule 16.01 of the Code of Professional Responsibility states that lawyers shall hold in trust all moneys of their clients and properties that may come into their possession. Lawyers who convert the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession.16 It may

54

be true that they have a lien upon the client's funds, documents and other papers that have lawfully come into their possession; that they may retain them until their lawful fees and disbursements have been paid; and that they may apply such funds to the satisfaction of such fees and disbursements. However, these considerations do not relieve them of their duty to promptly account for the moneys they received. Their failure to do so constitutes professional misconduct.17 In any event, they must still exert all effort to protect their client's interest within the bounds of law. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it correlative duties not only to the client but also to the court, to the bar, and to the public.18 Respondent fell short of this standard when he converted into his legal fees the filing fee entrusted to him by his client and thus failed to file the complaint promptly. The fact that the former returned the amount does not exculpate him from his breach of duty. On the other hand, we do not agree with complainant's plea to disbar respondent from the practice of law. The power to disbar must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and the character of the bar will disbarment be imposed as a penalty.19 WHEREFORE, Atty. Alberto C. Magulta is found guilty of violating Rules 16.01 and 18.03 of the Code of Professional Responsibility and is hereby SUSPENDED from the practice of law for a period of one (1) year, effective upon his receipt of this Decision. Let copies be furnished all courts as well as the Office of the Bar Confidant, which is instructed to include a copy in respondent's file. SO ORDERED. G.R. No. L-36800 October 21, 1974 JORGE MONTECILLO and QUIRICO DEL MAR, petitioners, vs. FRANCISCO M. GICA, MAGNO S. GATMAITAN, JOSE N. LEUTERIO, and RAMON G. GAVIOLA, Justices of the Court of Appeals, respondents. In Re Quirico del Mar, For Disciplinary action as member of the Philippine Bar, respondent.

Case No. R-28782 in Branch VII of the Cebu City Court) and a case for damages arising from the same incident (Civil Case No. R-13075 in Branch VI of the Cebu City Court). Montecillo was acquitted in Criminal Case No. R-28782, and in Civil Case No. R-13075, the Cebu City Court found that Montecillo did not call Gica "stupid". Finding the counter-claim of Montecillo meritorious, the City Court rendered judgment against Gica for him to pay Montecillo five hundred pesos as moral damages, two hundred pesos as compensatory damages and three hundred pesos as attorney's fees, plus costs. Francisco Gica appealed from the decision of the City Court of Cebu in Civil Case No. R-13075 to the Court of First Instance of Cebu presided by Hon. Santiago O. Taada but the Court of First Instance upheld the decision of the City Court. The case was then elevated to the Court of Appeals by petition for review by petitioner Francisco M. Gica and it was docketed therein as CA-G.R. No. 46504-R. The Fourth Division of the Court of Appeals in a decision penned by the Hon. Magno S. Gatmaitan and concurred in by Associate Justices Jose N. Leuterio and Ramon G. Gaviola, Jr. (promulgated on Sept. 27, 1972), reversed the decision of the Court of First Instance of Cebu; ruled in favor of petitioner Gica on the ground that the preponderance of evidence favored petitioner Francisco M. Gica on the principle that positive must prevail over the negative evidence, and that "some words must have come from Montecillo's lips that were insulting to Gica". The appellate court concluded that its decision is a vindication of Gica and instead, awarded him five hundred pesos as damages. It is from this point that trouble began for respondent Atty. Quirico del Mar when, as counsel for Montecillo, he moved for a reconsideration of the Appellate Court's decision with a veiled threat by mentioning the provisions of the Revised Penal Code on "Knowingly rendering unjust judgment" and "judgment rendered through negligence", and the innuendo that the Court of Appeals allowed itself to be deceived. When the Appellate Court denied the motion for reconsideration in its Resolution of October 24, 1972, it observed that the terminology of the motion insinuated that the Appellate Court rendered an unjust judgment, that it abetted a falsification and it permitted itself to be deceived. It admonished Atty. del Mar to remember that threats and abusive language cannot compel any court of justice to grant reconsideration. Respondent del Mar persisted and in his second motion for reconsideration, filed without leave of court, made another threat by stating that "with almost all penal violations placed under the jurisdiction of the President of the Philippines, particularly Articles 171, 204 and 205 of the Revised Penal Code, as Commander in Chief of the AFP, by virtue of the proclamation of martial law, the next appeal that will he interposed, will be to His Excellency, the President of the Philippines." The Appellate Court in its resolution of Nov. 27, 1972, noticed that notwithstanding its admonition in its resolution of Oct. 24, 1972, for Atty. del Mar to refrain from abusive language and threats, he reiterated his threats, and that the Appellate Court, impelled to assert its authority, ordered respondent del Mar to explain within 10 days (and to appear on January 10, 1973) why he should not be punished for contempt of court. On December 5, 1972, respondent del Mar made a written explanation wherein he said that the Appellate Court could not be threatened and he was not making any threat but only informing the Appellate Court of the course of action he would follow. On the same date, respondent sent a letter to the Justices of the 4th Division of the Court of Appeals informing them that he sent a letter to the President of the Philippines, furnishing them a copy thereof, and requesting the Justices to take into consideration the contents of said letter during the hearing of the case scheduled for January

ESGUERRA, J.:p Petitioner Atty. Quirico del Mar of Cebu City in G. R. No. L36800, and as respondent in contempt proceedings both in the Court of Appeals and in this Court, virtually focused the limelight on himself and relegated to insignificance the limelight on himself and relegated to insignificance the principal issue raised in the petition forcertiorari to review the entitled "Francisco M. Gica vs. Hon. Santiago O. Taada, et al" which was denied due course by this Court's resolution dated May 14, 1973, for lack of merit. Although the petition for certiorari has been denied, it becomes imperatively necessary to elucidate upon the antecedents of this case even if Our only justification in so doing is to seek a reason or motive for the acts of contempt perpetrated by respondent Quirico del Mar that might serve to lighten the enormity of his wrongdoing as a member of the Bar. As a result of an alleged slander committed by Jorge Montecillo on Francisco M. Gica (the former allegedly calling the latter "stupid" or a "fool'), Mr. Gica filed a criminal complaint for oral defamation against Montecillo (Criminal

55

10, 1973. Not content with that move, on December 8, 1972, respondent sent another letter to the same Justices of the Court of Appeals wherein he reminded them of a civil case he instituted against Justices of the Supreme Court for damages in the amount of P200,000 for a decision rendered not in accordance with law and justice, stating that he would not like to do it again but would do so if provoked. We pause here to observe that respondent del Mar seems to be of that frame of mind whereby he considers as in accordance with law and justice whatever he believes to be right in his own opinion and as contrary to law and justice whatever does not accord with his views. In other words, he would like to assume the role of this Court, personally and individually, in the interpretation and construction of the laws, evaluation of evidence and determination of what is in accordance with law and justice. The documented incidents as narrated in the Appellate Court's Resolution of March 5, 1973, cannot more eloquently depict the very manifest and repeated threats of respondent del Mar to bludgeon the Justices of the Fourth Davison into reconsidering its decision which happened to be adverse to respondent's client. Respondent del Mar, instead of presenting lucid and forceful arguments on the merits of his plea for a reconsideration to convince the Justices of the Fourth Division of the alleged error in their decision, resorted to innuendos and veiled threats, even casting downright aspersion on the Justices concerned by insinuating that for their decision they could be criminally and civilly liable for knowingly rendering unjust judgment, or doing it through ignorance. We quote with approval this portion of the Appellate Court's Resolution (March 5, 1973): A just man can never be threatened, p. 145, rollo, is not at all true; any man, just or unjust, can be threatened; if he is unjust, he will succumb, if he is just, he will not, but the offense is committed, whether the threats do or do not succeed. As to his (respondent del Mar's reference to the New Society, p. 150, in his letter to his Excellency, complaining against those justices, let it be said that precisely it was under the Former Society that there had been so much disrespect for the constituted authorities, there was abuse, worse than abuse, there was arrogant abuse, of the so-called civil liberties, against the authorities, including the courts, not excluding even the President; it is this anarchy that is the program to cure in the New. This Resolution of the Appellate Court of March 5, 1973, fittingly concluded that "counsel del Mar is found guilty of contempt and condemned to pay a fine of P200.00 and ordered suspended from the practice of law and pursuant to Sec. 9 of Rule 139, let certified copies of these papers be elevated to the Honorable Supreme Court". We upheld the Court of Appeals and gave full force and effect to this order of suspension from the practice of law when in Our resolution dated Nov. 19, 1973, the Judicial Consultant of this Court was directed to circularize all courts about the order of the Court of Appeals suspending Atty. Quirico del Mar from the practice of law. Not satisfied with the wrong that he had already done against Associate Justices Magno S. Gatmaitan, Jose N. Leuterio and Ramon Gaviola, Jr., respondent del Mar sued the three Justices for damages in Civil Case No. R-13277 of the Court of First Instance of Cebu, trying to hold them liable for their decision in CA-G.R. No. 46504-R; that the case for damages (R-13277)was terminated by compromise agreement after Mr. del Mar himself moved for the dismissal

of his complaint apologized to the Court of Appeals and the Justices concerned, and agreed to pay nominal moral damages in favor of the defendants-justices. This is the undeniable indication that respondent del Mar did not only threaten the three Justices of the Appellate Court but he actually carried out his threat, although he did not succeed in making them change their minds in the case they decided in accordance with the exercise of their judicial discretion emanating from pure conviction. To add insult to injury, respondent del Mar had the temerity to file his motion on October 10, 1973, before Us, asking that his suspension from the practice of law imposed by the Court of Appeals be ignored because of the amicable settlement reached in Civil Case No. R-13277 of the Court of First Instance of Cebu which was the action for damages filed against the three Justices of the Appellate Court. Respondent del Mar's ire at the Appellate Court, fanned by the wind of frustration, turned against Us when We denied on May 14, 1973, his petition for review on certiorari of the decision of the Appellate Court, G. R. No. L-36800, for on May 25, 1973, he filed his motion for reconsideration and wrote a letter addressed to the Clerk of this Court requesting the names of the Justices of this Court who supported the resolution denying his petition, together with the names of the Justices favoring his motion for reconsideration. This motion for reconsideration We denied for lack of merit in Our resolution dated June 15, 1973. He, then, filed a manifestation dated July 1, 1973, before Us, stating brazenly, among other things, "I can at this time reveal to you that, had your Clerk of Court furnished me with certified true copies of the last two Resolutions of the Supreme Court confirming the decision of the Court of Appeals in the case entitled Francisco M. Gica vs. Jorge Montecillo, I would have filed against the Justices supporting the same, civil and criminal suit as I did to the Justices of the Court of Appeals who, rewarding the abhorent falsification committed by Mr. Gica, reversed for him the decisions of the City Court and the Court of First Instance of Cebu, not with a view to obtaining a favorable judgment therein but for the purpose of exposing to the people the corroding evils extant in our Government, so that they may well know them and work for their extermination" (Emphasis supplied. In one breath and in a language certainly not complimentary to the Appellate Court and to Us, respondent del Mar again made his veiled threat of retribution aimed at the Appellate Court and at Us for Our judicial acts in CA-G. R. No. 46504-R and G. R. No. L-36800. Our immediate reaction to this manifestation, dictated by the impulse of placing on a pedestal beyond suspicion the integrity and honor of this Court and that of any of our other courts of justice, was to require by Resolution of July 16, 1973, respondent del Mar to show cause why disciplinary action should not be taken against him for the contemptuous statements contained in his manifestation. At this juncture, We pause to reexamine the act of the Appellate Court in CA-G. R. No. 46504-R and our own in G. R. No. L-36800 to determine what error we might have committed to generate such a vengeful wrath of respondent del Mar which drove him to make his contemptuous statements. The crucial issue in the case of oral defamation filed by Francisco M. Gica against Jorge Montecillo is as to what was the statement really uttered by Montecillo on the occasion in question "binuang man gud na" (That act is senseless or done without thinking) or "buang man gud na siya" (He is foolish or stupid). If the statement uttered was the former, Montecillo should be exonerated; if the latter, he would be liable. The Appellate Court on evaluating the evidence ruled that the preponderance thereof favored Gica "on the principle that the positive evidence must prevail over the negative" and, therefore, what was really uttered by Montecillo on that occasion was "buang man gud na siya"

56

(He is foolish or stupid), thus making him liable for oral defamation. When We denied in G. R. No. L-36800 the petition for review on certiorari of the Appellate Court's decision in CA-G. R. No. 46504-R, We did so because We could find no reason for disturbing the Appellate Court's finding and conclusion on the aforementioned lone question of fact which would warrant overturning its decision. On July 13, 1973, Our resolution of May 14, 1973, denying the petition for review on certiorari of the decision of the Appellate Court in CA-G. R. No. 46504-R, became final and executory and the Court of Appeals was so informed. To Our resolution of July 16, 1973, requiring respondent del Mar to show cause why he should not be disciplined for his statements contained in his manifestation of July 1, 1973, he submitted an explanation dated August 1, 1973, wherein he stated that "..., he is attaching hereto the criminal case he filed with the President of the Philippines (copy marked as Annex "A") and the civil case he instituted in the Court of First Instance of Cebu (copy marked as Annex "B") against Justices Magno S. Gatmaitan, Jose N. Leuterio and Ramon G. Gaviola, Jr., which embody the corroding evils he complained of as extant in the Government needing correction. He would have followed suit were it not for the fact that he is firmly convinced that human efforts in this direction will be fruitless. As manifested, he, therefore, decided to retire from a life of militancy to a life of seclusion leaving to God the filling-up of human deficiencies" (Emphasis supplied). This so-called explanation is more, in its tenor, of a defiant justification of his contemptuous statements contained in the manifestation of July 1, 1973. Its contents reveal a continued veiled threat against the Justices of this Court who voted to deny del Mar's petition for review on certiorari of the decision of the Court of Court Appeals in CA-G R. No. 46504-R. Our resolution of September 4, 1973, required respondent Atty. Quirico del Mar to appear personally at the hearing of his explanation on November 5, 1973. On September 26, 1973, respondent filed an additional explanation with this Court, wherein he stated, among other things: "Graft, corruption and injustice are rampant in and outside of the Government. It is this state of things that convinced me that all human efforts to correct and/or reform the said evils will be fruitless and, as stated in my manifestation to you, I have already decided to retire from a life of militancy to a life of seclusion, leaving to God the filling-up of human deficiencies." Again We noticed that the tenor of this additional explanation is a toned-down justification(as compared to his explanation of August 1, 1973) of his previous contemptuous statements without even a hint of apology or regret. Respondent is utilizing what exists in his mind as state of graft, corruption and injustice allegedly rampant in and outside of the government as justification for his contemptuous statements. In other words, he already assumed by his own contemptuous utterances that because there is an alleged existence of rampant corruption, graft, and injustice in and out of the government, We, by Our act in G. R. No. L-36800, are among the corrupt, the grafters and those allegedly committing injustice. We are at a complete loss to follow respondent del Mar's logic and We certainly should, with understanding condescension, commiserate in the pitiable state of mind of a brother in the legal profession who seems to have his reasoning and sense of proportion blurred or warped by an all-consuming obsession emanating from a one-track mind that only his views are absolutely correct and those of others are all wrong. When this Court in the resolution dated November 19, 1973, directed the Judicial Consultant to circularize to all courts concerning the order of the Court of Appeals suspending

Atty. Quirico del Mar from the practice of law, respondent del Mar filed a motion for reconsideration on December 12, 1973, requesting Us to reconsider said directive. In Our resolution dated December 17, 1973, respondent del Mar, after he had been interpellated by the Court, was given a period of five days to submit a memorandum in support of his explanation. In view of respondent's manifestation that there was no need for further investigation of the facts involved, in accordance with Section 29 of Rule 138, We resolved that the matter be deemed submitted for decision. In the memorandum entitled "Explanation" dated December 20, 1973, respondent del Mar stated that he suffered repeated strokes of high blood pressure which rendered him dizzy and unstable mentally and physically; that his sight is blurred and his reasoning is faulty; he easily forgets things and cannot readily correlate them; that for any and all mistakes he might have committed he asked for forgiveness; he reiterated that "blunders" were committed by the Court of Appeals in its decision and that the Justices thereof knowingly rendered the same in violation of Article 204 of the Penal Code; he persisted in his view that the Court of Appeals committed an error in its decision; justified his act of invoking Article 204 of the Penal Code in trying to make the Appellate Justices liable; that he was high in his academic and scholastic standing during his school days; that "with all the confusion prevailing nowadays, the undersigned has decided for reasons of sickness and old age to retire from the practice of law. He hopes and expects that, with the approval thereof by the Supreme Court, he could have himself released from the obligation he has contracted with his clients as regards all his pending cases." It is Our observation that the tenor of this explanation although pleading mental and physical ailment as a mitigation of the contemptuous acts, is still that of arrogant justification for respondent's previous statements. We quote: The undersigned was asked if he had not filed against the Justices of the Supreme Court a case for damages against them. He answered in the affirmative, but the case was dismissed by Judge Villasor, of the Court of First Instance of Cebu, because of an American ruling that a justice of the Supreme Court of the Philippines cannot be civilly held liable. The ruling cited was rendered during the American regime in the Philippines which was still subject to the jurisdiction of the American laws. But the Philippines is now independent and Article 204 of the Penal Code still remains incorporated therein for observance and fulfillment. Up to now, there is not yet any definite ruling of the Supreme Court thereon While still persistently justifying his contemptuous statements and at the same time pleading that his physical and mental ailment be considered so that We may forgive respondent del Mar he shrewdly stated at the end of his explanation that he has decided for reasons of sickness and old age to retire from the practice of law, in practical anticipation of whatever penalty We may decide to impose on him and thus making it appear that he has voluntarily done so with honor and in complete evasion of whatever this Court may decide to do in this case. With full realization that a practicing lawyer and officer of the court facing contempt proceedings cannot just be allowed to voluntarily retire from the practice of law, an act which would negate the inherent power of the court to punish him for contempt in defense of its integrity and honor, We resolve, by resolution of January 10, 1974, to

57

deny said prayer of Atty. del Mar without prejudice to his making arrangement directly with his clients. To aged brethren of the bar it may appear belated to remind them that second only to the duty of maintaining allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines, is the duty of all attorneys to observe and maintain the respect due to the courts of justice and judicial officers (Sec. 20 (b) Rule 138, Rules of Court). But We do remind them of said duty to emphasize to their younger brethren its paramount importance. A lawyer must always remember that he is an officer of the court exercising a high privilege and serving in the noble mission of administering justice. It is the duty of the lawyer to maintain towards the courts a respectful attitude (People vs. Carillo, 77 Phil. 572). As an officer of the court, it is his duty to uphold the dignity and authority of the court to which he owes fidelity, according to the oath he has taken. Respect for the courts guarantees the stability of our democratic institutions which, without such respect, would be resting on a very shaky foundation. (In re Sotto 82 Phil. 595). As We stated before: We concede that a lawyer may think highly of his intellectual endowment. That is his privilege. And, he may suffer frustration at what he feels is others' lack of it. This is his misfortune. Some such frame of mind, however, should not be allowed to harden into a belief that he may attack a court's decision in words calculated to jettison the time-honored aphorism that courts are the temples of right. He should give due allowance to the fact that judges are but men; and men are encompassed by error, fettered by fallibility. ... To be sure, lawyers may come up with various methods, perhaps much more effective, in calling the Court's attention to the issues involved. The language vehicle does not run short of expressions, emphatic but respectful, convincing but not derogatory, illuminating but not offensive (Rheem of the Philippines vs. Ferrer G. R. No. L-22979, June 26, 1967; 20 SCRA 441, 444-445) Criminal contempt has been defined as a conduct that is directed against the dignity and authority of the court or a judge acting judicially. It is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect (17 C. J. S. 7). We have held that statements contained in a motion to disqualify a judge, imputing to the latter conspiracy or connivance with the prosecutors or concocting a plan with a view to securing the conviction of the accused, and implicating said judge in a supposed attempt to extort money from the accused on a promise or assurance of the latter's acquittal, all without basis, were highly derogatory and serve nothing but to discredit the judge presiding the court in an attempt to secure his disqualification. Statements of that nature have no place in a court pleading and if uttered by a member of the bar, constitute a serious disrespect. We said: As an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarilythe high esteem and regard towards the court so essential to

the proper administration of justice(Emphasis supplied). (People vs. Carillo, 43 O.G. No. 12, p. 5021; De Joya et al vs. C. F. I. of Rizal and Rilloraza 52 0. G. 6150). As already stated, the decision of the Court of Appeals in CAG. R. No. 46504-R was based on its evaluation of the evidence on only one specific issue. We in turn denied in G. R. No. L-36800 the petition for review on certiorariof the decision because We found no reason for disturbing the appellate court's finding and conclusion. In both instances, both the Court of Appeals and this Court exercised judicial discretion in a case under their respective jurisdiction. The intemperate and imprudent act of respondent del Mar in resorting to veiled threats to make both Courts reconsider their respective stand in the decision and the resolution that spelled disaster for his client cannot be anything but pure contumely for said tribunals. It is manifest that respondent del Mar has scant respect for the two highest Courts of the land when on the flimsy ground of alleged error in deciding a case, he proceeded to challenge the integrity of both Courts by claiming that they knowingly rendered unjust judgment. In short, his allegation is that they acted with intent and malice, if not with gross ignorance of the law, in disposing of the case of his client. We note with wonder and amazement the brazen effrontery of respondent in assuming that his personal knowledge of the law and his concept of justice are superior to that of both the Supreme Court and the Court of Appeals. His pretense cannot but tend to erode the people's faith in the integrity of the courts of justice and in the administration of justice. He repeatedly invoked his supposed quest for law and justice as justification for his contemptuous statements without realizing that, in seeking both abstract elusive terms, he is merely pursuing his own personal concept of law and justice. He seems not to comprehend that what to him may be lawful or just may not be so in the minds of others. He could not accept that what to him may appear to be right or correct may be wrong or erroneous from the viewpoint of another. We understand that respondent's mind delves into the absolute without considering the universal law of change. It is with deep concern that We view such a state of mind of a practicing lawyer since what We expect as a paramount qualification for those in the practice of law is broadmindedness and tolerance, coupled with keen perception and a sound sense of proportion in evaluating events and circumstances. For a lawyer in the twilight of his life, with supposed physical and mental ailments at that, who dares to challenge the integrity and honor of both the Supreme Court and Court of Appeals, We have nothing but commiseration and sympathy for his choosing to close the book of his long years of law practice not by voluntary retirement with honor but in disciplinary action with ignominy and dishonor. To those who are in the practice of law and those who in the future will choose to enter this profession, We wish to point to this case as a reminder for them to imprint in their hearts and minds that an attorney owes it to himself to respect the courts of justice and its officers as a fealty for the stability of our democratic institutions. WHEREFORE, the resolution of the Court of Appeals in CAG.R. No. 46504-R, dated March 5, 1973, suspending Atty. Quirico del Mar from the practice of law, as implemented by Our resolution of November 19, 1973, is hereby affirmed. Respondent Atty. Quirico del Mar for his misconduct towards the Supreme Court, shall be, as he is hereby, suspended from the practice of law until further orders of this Court, such suspension to take effect immediately. (In re Almacen, No. L-27654, Feb. 18, 1970, 31 SCRA, p. 562.)

58

The Judicial Consultant of this Court is directed to circularize all courts and the Integrated Bar of the Philippines regarding the indefinite suspension of Atty. Quirico del Mar from the practice of law. SO ORDERED. A.C. No. 5439 January 22, 2007

But in Civil Case No. 2000-657-MK, filed in the RTC, Branch 273, Marikina City, entitled "Editha S. Valdez v. Joseph J. Alba, Jr. and Register of Deeds of Marikina City," respondent, as counsel for Valdez, filed a Complaint for Rescission of Contract with Damages and Cancellation of Transfer Certificate of Title No. 275500 against Alba, respondent's former client in Civil Case No. 98-6804 and SCA Case No. 99341-MK. Records further reveal that at the hearing of November 14, 2003, respondent admitted that in Civil Case No. 95-105-MK, he was the lawyer for Lagmay (one of the tenants) but not for Bustamante and Bayuga 10 albeit he filed the Explanation and Compliance for and in behalf of the tenants. 11 Respondent also admitted that he represented Valdez in Civil Case No. 98-6804 and SCA Case No. 99-341MK against Bustamante and her husband but denied being the counsel for Alba although the case is entitled "Valdez and Alba v. Bustamante and her husband," because Valdez told him to include Alba as the two were the owners of the property 12 and it was only Valdez who signed the complaint for ejectment. 13 But, while claiming that respondent did not represent Alba, respondent, however, avers that he already severed his representation for Alba when the latter charged respondent with estafa. 14 Thus, the filing of Civil Case No. 2000-657-MK against Alba. Rule 15.03, Canon 15 of the Code of Professional Responsibility provides that a lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. A lawyer may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his present or former client. 15 He may not also undertake to discharge conflicting duties any more than he may represent antagonistic interests. This stern rule is founded on the principles of public policy and good taste. 16 It springs from the relation of attorney and client which is one of trust and confidence. Lawyers are expected not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice. 17 One of the tests of inconsistency of interests is whether the acceptance of a new relation would prevent the full discharge of the lawyer's duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness or double-dealing in the performance of that duty. 18 The stern rule against representation of conflicting interests is founded on principles of public policy and good taste. It springs from the attorney's duty to represent his client with undivided fidelity and to maintain inviolate the client's confidence as well as from the injunction forbidding the examination of an attorney as to any of the privileged communications of his client. 19 An attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated. 20 The bare attorneyclient relationship with a client precludes an attorney from accepting professional employment from the client's adversary either in the same case 21 or in a different but related action. 22 A lawyer is forbidden from representing a subsequent client against a former client when the subject matter of the present controversy is related, directly or indirectly, to the subject matter of the previous litigation in which he appeared for the former client. 23 We held in Nombrado v. Hernandez 24 that the termination of the relation of attorney and client provides no justification for a lawyer to represent an interest adverse to or in conflict

CLARITA J. SAMALA, Complainant, vs. ATTY. LUCIANO D. VALENCIA, Respondent. RESOLUTION AUSTRIA-MARTINEZ, J.: Before us is a complaint1 dated May 2, 2001 filed by Clarita J. Samala (complainant) against Atty. Luciano D. Valencia (respondent) for Disbarment on the following grounds: (a) serving on two separate occasions as counsel for contending parties; (b) knowingly misleading the court by submitting false documentary evidence; (c) initiating numerous cases in exchange for nonpayment of rental fees; and (d) having a reputation of being immoral by siring illegitimate children. After respondent filed his Comment, the Court, in its Resolution of October 24, 2001, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 2 The investigation was conducted by Commissioner Demaree Jesus B. Raval. After a series of hearings, the parties filed their respective memoranda 3 and the case was deemed submitted for resolution. Commissioner Wilfredo E.J.E. Reyes prepared the Report and Recommendation 4 dated January 12, 2006. He found respondent guilty of violating Canons 15 and 21 of the Code of Professional Responsibility and recommended the penalty of suspension for six months. In a minute Resolution 5 passed on May 26, 2006, the IBP Board of Governors adopted and approved the report and recommendation of Commissioner Reyes but increased the penalty of suspension from six months to one year. We adopt the report of the IBP Board of Governors except as to the issue on immorality and as to the recommended penalty. On serving as counsel for contending parties. Records show that in Civil Case No. 95-105-MK, filed in the Regional Trial Court (RTC), Branch 272, Marikina City, entitled "Leonora M. Aville v. Editha Valdez" for nonpayment of rentals, herein respondent, while being the counsel for defendant Valdez, also acted as counsel for the tenants Lagmay, Valencia, Bustamante and Bayuga 6 by filing an Explanation and Compliance before the RTC. 7 In Civil Case No. 98-6804 filed in the Metropolitan Trial Court (MTC), Branch 75, Marikina City, entitled "Editha S. Valdez and Joseph J. Alba, Jr. v. Salve Bustamante and her husband" for ejectment, respondent represented Valdez against Bustamante - one of the tenants in the property subject of the controversy. Defendants appealed to the RTC, Branch 272, Marikina City docketed as SCA Case No. 99-341MK. In his decision dated May 2, 2000,8 Presiding Judge Reuben P. dela Cruz 9 warned respondent to refrain from repeating the act of being counsel of record of both parties in Civil Case No. 95-105-MK.

59

with that of the former client. The reason for the rule is that the client's confidence once reposed cannot be divested by the expiration of the professional employment. 25 Consequently, a lawyer should not, even after the severance of the relation with his client, do anything which will injuriously affect his former client in any matter in which he previously represented him nor should he disclose or use any of the client's confidences acquired in the previous relation. 26 In this case, respondent's averment that his relationship with Alba has long been severed by the act of the latter of not turning over the proceeds collected in Civil Case No. 986804, in connivance with the complainant, is unavailing. Termination of the attorney-client relationship precludes an attorney from representing a new client whose interest is adverse to his former client. Alba may not be his original client but the fact that he filed a case entitled "Valdez and Alba v. Bustamante and her husband," is a clear indication that respondent is protecting the interests of both Valdez and Alba in the said case. Respondent cannot just claim that the lawyer-client relationship between him and Alba has long been severed without observing Section 26, Rule 138 of the Rules of Court wherein the written consent of his client is required. In Gonzales v. Cabucana, Jr., 27 citing the case of Quiambao v. Bamba, 28 we held that: The proscription against representation of conflicting interests applies to a situation where the opposing parties are present clients in the same action or in an unrelated action. It is of no moment that the lawyer would not be called upon to contend for one client that which the lawyer has to oppose for the other client, or that there would be no occasion to use the confidential information acquired from one to the disadvantage of the other as the two actions are wholly unrelated. It is enough that the opposing parties in one case, one of whom would lose the suit, are present clients and the nature or conditions of the lawyer's respective retainers with each of them would affect the performance of the duty of undivided fidelity to both clients. 29 Respondent is bound to comply with Canon 21 of the Code of Professional Responsibility which states that "a lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated." The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence of the highest degree. A lawyer becomes familiar with all the facts connected with his client's case. He learns from his client the weak points of the action as well as the strong ones. Such knowledge must be considered sacred and guarded with care. 30 From the foregoing, it is evident that respondent's representation of Valdez and Alba against Bustamante and her husband, in one case, and Valdez against Alba, in another case, is a clear case of conflict of interests which merits a corresponding sanction from this Court. Respondent may have withdrawn his representation in Civil Case No. 95-105MK upon being warned by the court, 31 but the same will not exculpate him from the charge of representing conflicting interests in his representation in Civil Case No. 2000-657MK. Respondent is reminded to be more cautious in accepting professional employments, to refrain from all appearances and acts of impropriety including circumstances indicating conflict of interests, and to behave at all times with circumspection and dedication befitting a member of the Bar, especially observing candor, fairness and loyalty in all transactions with his clients. 32

On knowingly misleading the court by submitting false documentary evidence. Complainant alleges that in Civil Case No. 00-7137 filed before MTC, Branch 75 for ejectment, respondent submitted TCT No. 273020 as evidence of Valdez's ownership despite the fact that a new TCT No. 275500 was already issued in the name of Alba on February 2, 1995. Records reveal that respondent filed Civil Case No. 00-7137 on November 27, 2000 and presented TCT No. 273020 as evidence of Valdez's ownership of the subject property. 33 During the hearing before Commissioner Raval, respondent avers that when the Answer was filed in the said case, that was the time that he came to know that the title was already in the name of Alba; so that when the court dismissed the complaint, he did not do anything anymore. 34 Respondent further avers that Valdez did not tell him the truth and things were revealed to him only when the case for rescission was filed in 2002. Upon examination of the record, it was noted that Civil Case No. 2000-657-MK for rescission of contract and cancellation of TCT No. 275500 was also filed on November 27, 2000, 35 before RTC, Branch 273, Marikina City, thus belying the averment of respondent that he came to know of Alba's title only in 2002 when the case for rescission was filed. It was revealed during the hearing before Commissioner Raval that Civil Case Nos. 00-7137 and 2000-657-MK were filed on the same date, although in different courts and at different times. Hence, respondent cannot feign ignorance of the fact that the title he submitted was already cancelled in lieu of a new title issued in the name of Alba in 1995 yet, as proof of the latter's ownership. Respondent failed to comply with Canon 10 of the Code of Professional Responsibility which provides that a lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the Court to be mislead by any artifice. It matters not that the trial court was not misled by respondent's submission of TCT No. 273020 in the name of Valdez, as shown by its decision dated January 8, 2002 36 dismissing the complaint for ejectment. What is decisive in this case is respondent's intent in trying to mislead the court by presenting TCT No. 273020 despite the fact that said title was already cancelled and a new one, TCT No. 275500, was already issued in the name of Alba. In Young v. Batuegas,37 we held that a lawyer must be a disciple of truth. He swore upon his admission to the Bar that he will "do no falsehood nor consent to the doing of any in court" and he shall "conduct himself as a lawyer according to the best of his knowledge and discretion with all good fidelity as well to the courts as to his clients." 38He should bear in mind that as an officer of the court his high 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 conclusion. 39 The courts, on the other hand, are entitled to expect only complete honesty from lawyers appearing and pleading before them. While a lawyer has the solemn duty to defend his client's rights and is expected to display the utmost zeal in defense of his client's cause, his conduct must never be at the expense of truth. A lawyer is the servant of the law and belongs to a profession to which society has entrusted the administration of law and the dispensation of justice. 40 As such, he should make himself more an exemplar for others to emulate.41 >On initiating numerous cases in exchange for nonpayment of rental fees.

60

Complainant alleges that respondent filed the following cases: (a) Civil Case No. 2000-657-MK at the RTC, Branch 272; (b) Civil Case No. 00-7137 at the MTC, Branch 75; and (c) I.S. Nos. 00-4439 and 01-036162 both entitled "Valencia v. Samala" for estafa and grave coercion, respectively, before the Marikina City Prosecutor. Complainant claims that the two criminal cases were filed in retaliation for the cases she filed against Lagmay docketed as I.S. No. 00-4306 for estafa and I.S. No. 00-4318 against Alvin Valencia (son of respondent) for trespass to dwelling. As culled from the records, Valdez entered into a retainer agreement with respondent. As payment for his services, he was allowed to occupy the property for free and utilize the same as his office pursuant to their retainer agreement. 42 Respondent filed I.S. Nos. 00-4439 43 and 01-036162 44 both entitled "Valencia v. Samala" for estafa and grave coercion, respectively, to protect his client's rights against complainant who filed I.S. No. 00-4306 45 for estafa against Lagmay, and I.S. No. 00-4318 46 against Alvin Valencia 47 for trespass to dwelling. We find the charge to be without sufficient basis. The act of respondent of filing the aforecited cases to protect the interest of his client, on one hand, and his own interest, on the other, cannot be made the basis of an administrative charge unless it can be clearly shown that the same was being done to abuse judicial processes to commit injustice. The filing of an administrative case against respondent for protecting the interest of his client and his own right would be putting a burden on a practicing lawyer who is obligated to defend and prosecute the right of his client. On having a reputation for being immoral by siring illegitimate children. We find respondent liable for being immoral by siring illegitimate children. During the hearing, respondent admitted that he sired three children by Teresita Lagmay who are all over 20 years of age, 48 while his first wife was still alive. He also admitted that he has eight children by his first wife, the youngest of whom is over 20 years of age, and after his wife died in 1997, he married Lagmay in 1998. 49Respondent further admitted that Lagmay was staying in one of the apartments being claimed by complainant. However, he does not consider his affair with Lagmay as a relationship 50 and does not consider the latter as his second family. 51 He reasoned that he was not staying with Lagmay because he has two houses, one in Muntinlupa and another in Marikina. 52 In this case, the admissions made by respondent are more than enough to hold him liable on the charge of immorality. During the hearing, respondent did not show any remorse. He even justified his transgression by saying that he does not have any relationship with Lagmay and despite the fact that he sired three children by the latter, he does not consider them as his second family. It is noted that during the hearing, respondent boasts in telling the commissioner that he has two houses - in Muntinlupa, where his first wife lived, and in Marikina, where Lagmay lives. 53 It is of no moment that respondent eventually married Lagmay after the death of his first wife. The fact still remains that respondent did not live up to the exacting standard of morality and decorum required of the legal profession. Under Canon 1, Rule 1.01 of the Code of Professional Responsibility, a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. It may be difficult to specify the degree of moral delinquency that may qualify an act as immoral, yet, for purposes of disciplining a lawyer,

immoral conduct has been defined as that "conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of respectable members of the community. 54 Thus, in several cases, the Court did not hesitate to discipline a lawyer for keeping a mistress in defiance of the mores and sense of morality of the community. 55 That respondent subsequently married Lagmay in 1998 after the death of his wife and that this is his first infraction as regards immorality serve to mitigate his liability. ACCORDINGLY, the Court finds respondent Atty. Luciano D. Valencia GUILTY of misconduct and violation of Canons 21, 10 and 1 of the Code of Professional Responsibility. He is SUSPENDED from the practice of law for three (3) years, effective immediately upon receipt of herein Resolution. Let copies of this Resolution be furnished all courts of the land, the Integrated Bar of the Philippines as well as the Office of the Bar Confidant for their information and guidance, and let it be entered in respondent's personal records. SO ORDERED. A.C. No. 5281 February 12, 2008

MANUEL L. LEE, petitioner, vs. ATTY. REGINO B. TAMBAGO, respondent. RESOLUTION CORONA, J.: In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament. In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its execution. In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, halfsiblings of complainant. The will was purportedly executed and acknowledged before respondent on June 30, 1965.1 Complainant, however, pointed out that the residence certificate2 of the testator noted in the acknowledgment of the will was dated January 5, 1962.3 Furthermore, the signature of the testator was not the same as his signature as donor in a deed of donation4 (containing his purported genuine signature). Complainant averred that the signatures of his deceased father in the will and in the deed of donation were "in any way (sic) entirely and diametrically opposed from (sic) one another in all angle[s]."5 Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely copied from their respective voters affidavits. Complainant further asserted that no copy of such purported will was on file in the archives division of the Records Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In this connection, the

61

certification of the chief of the archives division dated September 19, 1999 stated: Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in this Office[s] files.6 Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged that complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed and actually notarized by respondent per affidavit7 of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx."9 Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by complainant against him in the Office of the Ombudsman "did not prosper." Respondent did not dispute complainants contention that no copy of the will was on file in the archives division of the NCCA. He claimed that no copy of the contested will could be found there because none was filed. Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first file an action for the declaration of nullity of the will and demand his share in the inheritance. In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.10 In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial Law as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics, particularly Canon 111 and Rule 1.0112 of the Code of Professional Responsibility (CPR).13 Thus, the investigating commissioner of the IBP Commission on Bar Discipline recommended the suspension of respondent for a period of three months. The IBP Board of Governors, in its Resolution No. XVII-2006285 dated May 26, 2006, resolved: [T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, 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 Respondents failure to comply with the laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is hereby suspended from the practice of law for one year and Respondents notarial commission is Revoked and Disqualified from reappointment as Notary Public for two (2) years.14 We affirm with modification. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.15 A will may either be notarial or holographic.

The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity.16 A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.17 The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be considered void.18 This is in consonance with the rule that acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the witnesses.19 The importance of this requirement is highlighted by the fact that it was segregated from the other requirements under Article 805 and embodied in a distinct and separate provision.20 An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signatory actually declares to the notary public that the same is his or her own free act and deed.21 The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testators wishes long after his demise and (2) to assure that his estate is administered in the manner that he intends it to be done. A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testators old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will. As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and those of notarization. As we held in Santiago v. Rafanan:22 The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before him had presented the proper residence certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part of such certification. These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight attached to notarized documents.23 A notary public, especially a lawyer,24 is bound to strictly observe these elementary requirements. The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or instrument: Section 251. Requirement as to notation of payment of [cedula] residence tax. Every contract, deed, or other document acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper

62

[cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid.25 The importance of such act was further reiterated by Section 6 of the Residence Tax Act26 which stated: When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person xxx. In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence Tax Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo. On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives division, Article 806 provides: Art. 806. Every will must be acknowledged before a notary public by the testator and the witness. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (emphasis supplied) Respondents failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a cause for disciplinary action. Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his notarial register. The old Notarial Law required the entry of the following matters in the notarial register, in chronological order: 1. nature of each instrument executed, sworn to, or acknowledged before him; 2. person executing, swearing to, or acknowledging the instrument; 3. witnesses, if any, to the signature; 4. date of execution, oath, or acknowledgment of the instrument; 5. fees collected by him for his services as notary; 6. give each entry a consecutive number; and 7. if the instrument is a contract, a brief description of the substance of the instrument.27 In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register. To reinforce his claim, he presented a photocopy of a certification28 stating that the archives division had no copy of the affidavit of Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The proponent must first prove the existence and cause of the unavailability of the original,29 otherwise, the evidence presented will not be admitted. Thus, the photocopy of respondents notarial register was not admissible as evidence of the entry of the execution of the will because it failed to comply with the requirements for the admissibility of secondary evidence. In the same vein, respondents attempt to controvert the certification dated September 21, 199930 must fail. Not only did he present a mere photocopy of the certification dated March 15, 2000;31 its contents did not squarely prove the fact of entry of the contested will in his notarial register. Notaries public must observe with utmost care32 and utmost fidelity the basic requirements in the performance of their duties, otherwise, the confidence of the public in the integrity of notarized deeds will be undermined.33 Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be taken lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in this case, are no longer alive to identify the instrument and to confirm its contents.34 Accordingly, respondent must be held accountable for his acts. The validity of the will was seriously compromised as a consequence of his breach of duty.35 In this connection, Section 249 of the old Notarial Law provided: Grounds for revocation of commission. The following derelictions of duty on the part of a notary public shall, in the discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission: xxx xxx xxx

(b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law. xxx xxx xxx

(f) The failure of the notary to make the proper notation regarding cedula certificates.36 These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court37 and Canon 138 and Rule 1.0139 of the CPR. The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and obey the laws of the land.40 For a lawyer is the servant of the law and belongs to a profession to which society has entrusted the administration of law and the dispensation of justice.41 While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should moreover make himself an example for others to emulate.42 Being a lawyer, he is supposed to be a model in the community in so far as respect for the law is concerned.43

63

The practice of law is a privilege burdened with conditions.44 A breach of these conditions justifies disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgment that he has engaged in professional misconduct.45 These sanctions meted out to errant lawyers include disbarment, suspension and reprimand. Disbarment is the most severe form of disciplinary sanction.46 We have held in a number of cases that the power to disbar must be exercised with great caution47 and should not be decreed if any punishment less severe such as reprimand, suspension, or fine will accomplish the end desired.48 The rule then is that disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court.49 Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his claims that he "exercised his duties as Notary Public with due care and with due regard to the provision of existing law and had complied with the elementary formalities in the performance of his duties xxx," we find that he acted very irresponsibly in notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from the practice of law. It is, as well, a sufficient basis for the revocation of his commission50 and his perpetual disqualification to be commissioned as a notary public.51 WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law. Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial commissionREVOKED. Because he has not lived up to the trustworthiness expected of him as a notary public and as an officer of the court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary public. Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as made part of the personal records of respondent. SO ORDERED. A.M. No. L-363 July 31, 1962

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. 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

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

64

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. G.R. No. 125766 October 19, 1998 FELICIDAD L. ORONCE and ROSITA L. FLAMINIANO, petitioners, vs. HON. COURT OF APPEALS and PRICILIANO B. GONZALES DEVELOPMENT CORPORATION, respondent.

only to determine the issue of possession. (4a) These developments in the law notwithstanding, there remains some misconceptions on the issue of jurisdiction of inferior courts in ejectment cases where ownership is raised as a defense that the Court deems proper to clarify in this petition. Private respondent Priciliano B. Gonzales Development Corporation was the registered owner of a parcel of land with an area of 2,000 square meters. The land with improvements, covered by Transfer Certificate of Title No. RT-54556 (383917), is situated at No. 52 Gilmore Street, New Manila, Quezon City. In June 1988, private respondent obtained a four million peso -(P4,000,000.00) loan from the China Banking Corporation. To guarantee payment of the loan, private respondent mortgaged the Gilmore property and all its improvements to said bank. Due to irregular payment of amortization, interests and penalties on the loan accumulated through the years. On April 13, 1992, private respondent, through its president, Antonio B. Gonzales, signed and executed a Deed of Sale with Assumption of Mortgage covering the Gilmore property and its improvements, in favor of petitioners Rosita Flaminiano and Felicidad L. Oronce. 2 The deed, which states that the sale was in consideration of the sum of P5,400,000.00, 3 provided inter alia that . . . the VENDOR (PBGDC) also guarantees the right of the VENDEES (petitioners) to the possession of the property subject of this contract without the need of judicial action; and possession of said premises shall be delivered to the VENDEES by the VENDOR at the expiration of one (1) year from the date of the signing and execution of this Deed of Sale with Assumption of Mortgage. On the other hand, petitioners bound themselves to pay private respondent's indebtedness with China Banking Corporation. In fulfillment of the terms and conditions embodied in the Deed of Sale with Assumption of Mortgage, petitioners paid private respondent's indebtedness with the bank. However, private respondent reneged on its obligation to deliver possession of the premises to petitioners upon the expiration of the one-year period from April 13, 1992. Almost six months later since the execution of the instrument or on October 2, 1992, petitioners caused the registration of the Deed of Sale with Assumption of Mortgage with the Register of Deeds. Simultaneously, they obtained a new title, TCT No. 67990, consistent with the fact that they are the new owners of the property. 4Sometime in July 1993, they paid the real estate taxes on the property for which they were issued Tax Declarations Nos. C-061-02815 and C061-02816. 5 On November 12, 1993, petitioners sent private respondent a demand letter asking it to vacate the premises. Said letter, just like three other consecutive notices sent through the Quezon City post office, was unclaimed. Hence, on April 11, 1994, petitioners filed before the Metropolitan Trial Court of Quezon City, a complaint for unlawful detainer against private respondent. The complaint, docketed as Civil Case No. 8638 was raffled to Branch 41. Petitioners alleged that by virtue of the Deed of Sale with Assumption of Mortgage, they acquired from private respondent the Gilmore property and its improvements, for which reason they were issued TCT No. 67990. However, they added, in violation of the

ROMERO, J.: The issue of whether or not a Metropolitan or Municipal Trial Court may resolve the issue of ownership of the property involved in an unlawful detainer case has been discussed by this Court in a number of cases, the more recent of which is that of Hilario v. Court of Appeals. 1 Jurisprudence on the matter has in fact been reflected in the 1997 Rules of Civil Procedure under Rule 70, to wit: Sec. 16. Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved

65

terms of that document, specifically Sec. 3 (c) thereof, private respondent refused to surrender possession of the premises. Consequently, they demanded that private respondent vacate the premises through notices sent by registered mail that were, however, returned to them unclaimed. In its answer to the complaint, private respondent raised the issue of ownership over the property. It impugned petitioners' right to eject, alleging that petitioners had no cause of action against it because it was merely a mortgagee of the property. It argued that when the parties executed the Deed of Sale with Assumption of Mortgage, its real intention was to forge an equitable mortgage and not a sale. It pointed out three circumstances indicative of an equitable mortgage, namely: inadequacy of the purchase price, continued possession by private respondent of the premises, and petitioners' retention of a portion of the purchase price. During the preliminary conference on the case, the parties agreed to stipulate on the following: (a) the existence and due execution of the Deed of Sale with Assumption of Mortgage, and (b) the issue of whether or not the premises in litis are being unlawfully detained by private respondent. 6 On March 24, 1995, the MTC 7 decided the case in favor of petitioners. It ruled that petitioners are the owners of the Gilmore property on account of the following pieces of evidence: (a) TCT No. 67990; (b) petitioners' payment to the China Banking Corporation of P8,500,000.00, the amount of the mortgage entered into between private respondent and said bank; (c) payment of real estate taxes for 1993, and (d) Tax Declaration No. 02816 in petitioners' names. The MTC further held that private respondent's possession of the premises was merely tolerated by petitioners and because it refused to vacate the premises despite demand to do so, then its possession of the same premises had become illegal. Thus, the MTC decreed as follows: WHEREFORE, premises considered, judgment is hereby rendered ordering defendant and all persons claiming rights under it to vacate the premises-in-litis located at No. 52 Gilmore St., New Manila, Quezon City, and to peacefully surrender possession thereof to the plaintiffs; to pay plaintiffs the sum of P20,000.00 a month as compensation for the unjust occupation of the same from April 11, 1994 (the date of filing of this case) until defendant fully vacates the said premises; to pay plaintiffs the amount of P20,000.00 as and for attorney's fees plus costs of suit. Counterclaim is dismissed for lack of merit. SO ORDERED. 8 On April 25, 1995, private respondent interposed an appeal to the Regional Trial Court, Branch 219, of Quezon City that docketed it as Civil Case No. Q-95-23697. Private respondent stressed in its appeal that it was not unlawfully withholding possession of the premises from petitioners because the latter's basis for evicting it was the Deed of Sale with Assumption of Mortgage that did not reflect the true intention of the parties to enter into an equitable mortgage. Clearly in pursuance of that allegation, private respondent filed a motion questioning the jurisdiction of the RTC to entertain its appeal. On the other hand, petitioners filed a motion for the immediate execution of the appealed decision. The RTC granted the motion on September 21, 1995 and the corresponding writ of execution was issued on September 25, 1995. The following day, the sheriff served upon private respondent the writ of execution and a notice to vacate the premises within five (5) days from receipt thereof.

Meanwhile, during the pendency of its appeal, private respondent filed an action for reformation of instrument with the RTC. It was docketed as Civil Case No. Q-95-24927 and assigned to Branch 227. In a resolution dated December 7, 1995, RTC Branch 219 asserted jurisdiction over the appeal. It ruled that the issue of whether or not an action for reformation of a deed of sale and an unlawful detainer case can proceed independently of each other has been resolved by this Court in Judith v. Abragan. 9 In said case, this Court held that the fact that defendants had previously filed a separate action for the reformation of a deed of absolute sale into one of pacto de retro sale or equitable mortgage in the same Court of First Instance is not a valid reason to frustrate the summary remedy of ejectment afforded by law to the plaintiff. On December 12, 1995, private respondent filed in the Court of Appeals a petition for certiorari with prayer for a temporary restraining order and writ of preliminary injunction against petitioners and RTC Branch 219. It assailed the September 21, 1995 order granting the issuance of a writ of execution pending appeal, the writ of execution and the notice to vacate served upon private respondent (CA-G.R. SP-39227). On December 13, 1995, RTC Branch 219 10 rendered the decision affirming in toto that of the Metropolitan Trial Court. Stating that in ejectment proceedings, the only issue for resolution is who is entitled to physical or material possession of the premises involved, RTC Branch 219 held that . . . the plaintiffs (petitioners herein) are vendees of the defendant (PBGDC) by virtue of a deed of sale where the extent of its right to continue holding possession was stipulated. In the agreement, the existence and due execution of which the defendant had admitted (Order, December 16, 1994, Rollo, p. 111), it was clearly stated that the defendant shall deliver the possession of the subject premises to the plaintiffs at the expiration of one (1) year from the execution thereof, April 12, 1992. The defendant failed to do so. From then on, it could be said that the defendant has been unlawfully withholding possession of the premises from the plaintiffs. In any case, this ruling on the matter of possession de facto is without prejudice to the action for reformation. This is because "the judgment rendered in an action for forcible entry or detainer shall be effective with respect to the possession only and in no wise bind the title or effect the ownership of the land or building nor shall it be held conclusive of the facts therein found in case between the same parties upon a different cause of action not involving possession" (Ang Ping v. Regional Trial Court, 154 SCRA 153; Section 7, Rule 70, Rules of Court). 11 On that same date, December 13, 1995, the Court of Appeals issued a temporary restraining order enjoining RTC Branch 219 from enforcing the writ of execution and the notice to vacate the premises and on January 15, 1996, the same court granted private respondent's application for a writ of preliminary injunction enjoining the implementation of both the writ of execution pending appeal and the decision of RTC Branch 219.

66

Around six months later or on July 2, 1996, RTC Branch 227 12 issued an order declaring private respondent nonsuited for failure to appear at the pre-trial and, therefore, dismissing the action for reformation of instrument in Civil Case No. Q-95-24927. Private respondent, not having sought reconsideration of said order, the same court issued a resolution on August 15, 1996 directing the entry of judgment in the case. 13 The Clerk of Court accordingly issued the final entry of judgment thereon. 14 In the meantime, on July 24, 1996, the Court of Appeals rendered the herein questioned Decision. 15 It set aside the December 13, 1995 decision of RTC Branch 219 and declared as null and void for want of jurisdiction, the March 24, 1995 decision of the Metropolitan Trial Court of Quezon City, Branch 41. It made permanent the writ of preliminary injunction enjoining petitioners from implementing the decision of RTC Branch 219, the writ of execution and the notice to vacate. In so holding, the Court of Appeals said: It is quite evident that, upon the pleadings, the dispute between the parties extended beyond the ordinary issues in ejectment cases. The resolution of the dispute hinged on the question of ownership and for that reason was not cognizable by the MTC. (See: General Insurance and Surety Corporation v. Castelo, 13 SCRA 652 (1965). Respondent judge was not unaware of the pendency of the action for reformation. However, despite such knowledge, he proceeded to discuss the merits of the appeal and rendered judgment in favor of respondents on the basis of the deed of sale with assumption of mortgage which was precisely the subject of the action for reformation pending before another branch of the court. Prudence dictated that respondent judge should have refused to be drawn into a discussion as to the merits of the respective contentions of the parties and deferred to the action of the court before whom the issue was directly raised for resolution. On whether or not private respondent was in estoppel from questioning the jurisdiction of the MTC since it voluntarily submitted thereto the question of the validity of its title to the property, the Court of Appeals said: This is not so. As earlier pointed out, petitioner (private respondent here) had, in its answer to the complaint for unlawful detainer, promptly raised the issue of jurisdiction by alleging that what was entered into by the parties was just an equitable mortgage and not a sale. Assuming the truth of this allegation, it is fairly evident that respondents would not have had a cause of action for ejectment. In other words, petitioner, since the start of the case, presented a serious challenge to the MTC's jurisdiction but, unfortunately, the court ignored such challenge and proceeded to decide the case simply on the basis of possession. The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court

actually had jurisdiction or not, if it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel (5 C.J.S., 861-863). (La Naval Drug Corporation v. Court of Appeals, 236 SCRA 78 [19941]). Contrary to respondents' pretense, the filing by petitioner of an action for the reformation of contract may not really be an afterthought. As we understand it, petitioner, to support its allegation that the contract was a mere equitable mortgage, cites the fact that the price was inadequate; it remained in possession of the premises; it has retained a part of the purchase price; and, in any case, the real intention of the parties was that the transaction shall secure the payment by petitioner of its loan, adverting to Article 1602 of the Civil Code. Under Article 1604 of the same code, it is provided that the presence of only one circumstance defined in Article 1602, such as those cited above, is sufficient for a contract of sale with right to repurchase to be presumed an equitable mortgage. Without in any way preempting the decision of the court in the action for reformation, it is our considered view that, under the factual milieu, the action was initiated for the proper determination of the rights of the parties under the contract, and not just an afterthought. No derogatory inference can arise from petitioner's admission of the existence of the deed of sale with assumption of mortgage. The admission does not necessarily dilute its claim that the same does not express the true intent of the parties. Verily, since the case at bench involves a controverted right, the parties are required to preserve the status quoand await the decision of the proper court on the true nature of the contract. It is but just that the person who has first acquired possession should remain in possession pending decision on said case, and the parties cannot be permitted meanwhile to engage in petty warfare over possession of property which is the subject of dispute. To permit this will be highly dangerous to individual security and disturbing to the social order. (Manlapaz v. Court of Appeals, 191 SCRA 795 [199]). 16

67

Hence, the present petition for review on certiorari where petitioners raise the following assigned errors allegedly committed by respondent Court of Appeals: I. THE DECISION OF THE RESPONDENT COURT OF APPEALS IS CONTRARY TO THE PROVISIONS OF SEC. 33 (2) OF THE JUDICIARY REORGANIZATION ACT OF 1980 CONFERRING EXCLUSIVE ORIGINAL JURISDICTION ON THE METROPOLITAN TRIAL COURT IN EJECTMENT CASES AND VESTING IT WITH AUTHORITY, INDEED MANDATORILY, TO RESOLVE ISSUES OF OWNERSHIP TO DETERMINE ISSUES OF POSSESSION. II. THE DECISION OF THE RESPONDENT COURT IS CONTRARY TO CURRENT AND PREVAILINGDOCTRINE AS ENUNCIATED IN WILMON AUTO SUPPLY CORP. VS. COURT OF APPEALS, 208 SCRA 108; SY VS. COURT OF APPEALS, 200 SCRA 117; AND ASSET PRIVATIZATION TRUST VS. COURT OF APPEALS, 229 SCRA 627. III. THE FILING OF THE REFORMATION CASE CONFIRMS THE JURISDICTION OF THE METROPOLITAN TRIAL COURT OVER THE EJECTMENT CASE; THE DISMISSAL OF THE REFORMATION CASE CONFIRMS THE FACT THAT IT WAS FILED MERELY AS A PLOY TO DELAY DISPOSITION OF EJECTMENT PROCEEDINGS, AND BARES NOT JUST THE ERROR BUT THE UTTER INEQUITY OF THE RESPONDENT COURT'S DECISION ANNULLING THE EJECTMENT DECREE AND SETTING ASIDE THE REGIONAL TRIAL COURT DECISION OF AFFIRMANCE. Petitioners argue that the precedent laid down in Ching v. Malaya 17 relied upon by the Court of Appeals, was based on the old law, Republic Act No. 296 (Judiciary Act of 1948), as amended, which vested in the city courts original jurisdiction over forcible entry and unlawful detainer proceedings and the corresponding power to receive evidence upon the question of ownership for the only purpose of determining the character and extent of possession. 18 They claim that since the original complaint for unlawful detainer was filed on April 13, 1992, then the applicable law should have been Section 33 (2) of the Judiciary Reorganization Act of 1980 (Batas Pambansa Blg. 129). That law vests in the city courts exclusive original jurisdiction over forcible entry and unlawful detainer cases and the corresponding power to receive evidence upon questions of ownership and to resolve the issue of ownership to determine the issue of possession. 19 The history of the law vesting Municipal and Metropolitan Trial Courts with jurisdiction over ejectment cases has invariably revolved upon the assumption that the question of ownership may be considered only if necessary for the determination of the issue as to who of the parties shall have the right to possess the property in litigation. 20Thus, under the Judiciary Act of 1948, as amended, Section 88 vested municipal and city courts with authority to "receive evidence upon the question of title therein, whatever may be the value of the property, solely for the purpose of determining the

character and extent of possession and damages for detention." Section 3 of Republic Act No. 5967 that was enacted on June 21, 1969, provided that city courts shall have concurrent jurisdiction with Courts of First Instance over "ejection cases where the question of ownership is brought in issue in the pleadings" and that the issue of ownership shall be "resolved in conjunction with the issue of possession." Expounding on that provision of law, in Pelaez v. Reyes, 21 this Court said: . . . We are of the considered opinion that the evident import of Section 3 above is to precisely grant to the city courts concurrent original jurisdiction with the courts of first instance over the cases enumerated therein, which include "ejection cases where the question of ownership is brought in issue in the pleadings." To sustain petitioner's contention about the meaning of the last phrase of paragraph (c) of said section regarding the resolution of the issue of ownership "in conjunction with the issue of possession" is to disregard the very language of the main part of the section which denotes unmistakably a conferment upon the city courts of concurrent jurisdiction with the courts of first instance over ejection cases in which ownership is brought in issue in the pleadings. It is to Us quite clear that the fact that the issue of ownership is to be resolved "in conjunction with the issue of possession" simply means that both the issues of possession and ownership are to be resolved by the city courts. And the jurisdiction is concurrent with the Courts of First Instance precisely because usually questions of title are supposed to be resolved by superior courts. In other words, this grant of special jurisdiction to city courts is to be distinguished from the power ordinarily accorded to municipal courts to receive evidence of title only for the purpose of determining the extent of the possession in dispute. Upon the approval on August 14, 1981 of Batas Pambansa Blg. 129 or the Judiciary Reorganization Act of 1980, however, the power of inferior courts, including city courts, to resolve the issue of ownership in forcible entry and unlawful detainer cases was modified. Resolution of the issue of ownership became subject to the qualification that it shall be only for the purpose of determining the issue of possession. In effect, therefore, the city courts lost the jurisdiction to determine the issue of ownership per se that was theretofore concurrent with the then Courts of First Instance. Thus, Section 33 of B.P. Blg. 129 provides that Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise: Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. Accordingly, the Interim Rules and Guidelines in the implementation of Batas Pambansa Blg. 129 provides as follows:

68

10. Jurisdiction in ejectment cases. Metropolitan trial courts, municipal trial courts, and municipal circuit trial courts, without distinction, may try cases of forcible entry and detainer even if the question of ownership is raised in the pleadings and the question of possession could not be resolved without deciding the issue of ownership, but the question of ownership shall be resolved only to determine the issue of possession. Explaining these provisions of law, in Sps. Refugia v. Court of Appeals, 22 the Court said: These issuances changed the former rule under Republic Act No. 296 which merely allowed inferior courts to receive evidence upon the question of title solely for the purpose of determining the extentand character of possession and damages for detention, which thereby resulted in previous rulings of this Court to the effect that if it appears during the trial that the principal issue relates to the ownership of the property in dispute and any question of possession which may be involved necessarily depends upon the result of the inquiry into the title, then the jurisdiction of the municipal or city courts is lost and the action should be dismissed. With the enactment of Batas Pambansa Blg. 129, the inferior courts now retain jurisdiction over an ejectment case even if the question of possession cannot be resolved without passing upon the issue of ownership, with the express qualification that such issue of ownership shall be resolved only for the purpose of determining the issue of possession. In other words, the fact that the issues of ownership and possession de facto are intricately interwoven will not cause the dismissal of the case for forcible entry and unlawful detainer on jurisdictional grounds. Another development in the law has emphasized the fact that inferior courts shall not lose jurisdiction over ejectment cases solely because the issue of ownership is interwoven with the issue of possession. Under the 1983 Rules on Summary Procedure, as amended by a resolution of this Court that took effect on November 15, 1991, all forcible entry and unlawful detainer cases shall be tried pursuant to the Revised Rules on Summary Procedure, regardless of whether or not the issue of ownership of the subject property is alleged by a party. 23 In other words, even if there is a need to resolve the issue of ownership, such fact will not deprive the inferior courts of jurisdiction over ejectment cases 24 that shall be tried summarily. When the jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts was expanded, thereby amending Batas Pambansa Blg. 129, by virtue of Republic Act No. 7691 that took effect on April 15, 1994, the jurisdiction of said courts over ejectment cases was retained. Thus, in Hilario v. Court of Appeals this Court said: . . . . As the law now stands, inferior courts retain jurisdiction over ejectment cases even if the question of possession cannot be resolved without passing upon the issue of ownership; but this is subject to the same caveat that the issue posed as to

ownership could be resolved by the court for the sole purpose of determining the issue of possession. Thus, an adjudication made therein regarding the issue of ownership should be regarded as merely provisional and, therefore, would not bar or prejudice an action between the same parties involving title to the land. The foregoing doctrine is a necessary consequence of the nature of forcible entry and unlawful detainer cases where the only issue to be settled is the physical or material possession over the real property, that is, possession de facto and not possession de jure. In other words, inferior courts are now "conditionally vested with adjudicatory power over the issue of title or ownership raised by the parties in an ejectment suit." 25 These courts shall resolve the question of ownership raised as an incident in an ejectment case where a determination thereof is necessary for a proper and complete adjudication of the issue of possession. Considering the difficulties that are usually encountered by inferior courts as regards the extent of their power in determining the issue of ownership, in Sps. Refugia v. Court of Appeals, the Court set out guidelines to be observed in the implementation of the law which, as stated at the outset, has recently been restated in the 1997 Rules of Civil Procedure. The guidelines pertinent to this case state: 1. The primal rule is that the principal issue must be that of possession, and that ownership is merely ancillary thereto, in which case the issue of ownership may be resolved but only for the purpose of determining the issue of possession. Thus, . . ., the legal provision under consideration applies only where the inferior court believes and the preponderance of evidence shows that a resolution of the issue of possession is dependent upon the resolution of the question of ownership. 2. It must sufficiently appear from the allegations in the complaint that what the plaintiff really and primarily seeks is the restoration of possession. Consequently, where the allegations of the complaint as well as the reliefs prayed for clearly establish a case for the recovery of ownership, and not merely one for the recovery of possession de facto, or where the averments plead the claim of material possession as a mere elemental attribute of such claim for ownership, or where the issue of ownership is the principal question to be resolved, the action is not one for forcible entry but one for title to real property. xxx xxx xxx 5. Where the question of who has the prior possession hinges on the question of who the real owner of the disputed portion is, the inferior court may resolve the issue of ownership and make a declaration as to who among the contending parties is the real owner. In the same vein, where the resolution of the issue of possession hinges on a determination of the validity and

69

interpretation of the document of title or any other contract on which the claim of possession is premised, the inferior court may likewise pass upon these issues. This is because, and it must be so understood, that any such pronouncement made affecting ownership of the disputed portion is to be regarded merely as provisional, hence, does not bar nor prejudice an action between the same parties involving title to the land. Moreover, Section 7, Rule 70 of the Rules of Court expressly provides that the judgment rendered in an action for forcible entry or unlawful detainer shall be effective with respect to the possession only and in no wise bind the title or affect the ownership of the land or building. 26(Emphasis supplied.) In the case at bar, petitioners clearly intended recovery of possession over the Gilmore property. They alleged in their complaint for unlawful detainer that their claim for possession is buttressed by the execution of the Deed of Sale with Assumption of Mortgage, a copy of which was attached as Annex "A" to the complaint and by the issuance of TCT No. 67990 that evidenced the transfer of ownership over the property. 27 Because metropolitan trial courts are authorized to look into the ownership of the property in controversy in ejectment cases, it behooved MTC Branch 41 to examine the bases for petitioners' claim of ownership that entailed interpretation of the Deed of Sale with Assumption of Mortgage. However, while it quoted paragraph (c) of the Deed of Sale with Assumption of Mortgage that embodies the agreement of the parties that possession of the Gilmore property and its improvements shall remain with the vendor that was obliged to transfer possession only after the expiration of one year, 28 MTC Branch 41 apparently did not examine the terms of the deed of sale. Instead, it erroneously held that the issue of whether or not the document was in fact an equitable mortgage "should not be properly raised in this case." Had it examined the terms of the deed of sale, which, after all is considered part of the allegations of the complaint having been annexed thereto, that court would have found that, even on its face, the document was actually one of equitable mortgage and not of sale. The inferior court appears to have forgotten that all documents attached to a complaint, the due execution and genuineness of which are not denied under oath by the defendant, must be considered as part of the complaint without need of introducing evidence thereon. 29 Art. 1602 of the Civil Code provides that a contract shall be presumed to be an equitable mortgage by the presence of any of the following: (1) When the price of a sale with right to repurchase is unusually inadequate; (2) When the vendor remains in possession as lessee or otherwise; (3) When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed; (4) When the purchaser retains for himself a part of the purchase price; (5) When the vendor binds himself to pay the taxes on the thing sold;

(6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation. Art. 1604 of the same Code provides that the provisions of Article 1602 "shall also apply to a contract purporting to be an absolute sale." The presence of even one of the circumstances in Article 1602 is sufficient basis to declare a contract as one of equitable mortgage. 30 The explicit provision of Article 1602 that "any" of those circumstances would suffice to construe a contract of sale to be one of equitable mortgage is in consonance with the rule that the law favors the least transmission of property rights. The Deed of Sale with Assumption of Mortgage covering the 2,000-square-meter lot located at No. 52 Gilmore Street, New Manila, Quezon City provides as follows: 3. That the total consideration for the sale of the abovedescribed property by the VENDOR to the VENDEES is FOURTEEN MILLION (P14,000,000.00) PESOS, in Philippine currency, payable as follows: a) The VENDOR shall be paid by the VENDEE the sum of FIVE MILLION FOUR HUNDRED THOUSAND (P5,400,000.00) PESOS upon the signing and execution of this Deed of Sale With Assumption of Mortgage after computation of the mortgage obligation of the VENDOR with CHINA BANKING CORPORATION in the amount of _____________ which the VENDEES agree to assume as part of the consideration of this sale. The VENDEES hereby assume the mortgage obligation of the VENDOR with the CHINA BANKING CORPORATION in the total amount of ______________. b) The VENDOR hereby undertakes and agrees with the VENDEES that the first-named party shall warrant and defend the title of said real property hereby conveyed in favor of the VENDEES, their heirs, successors or assigns, against all just claims of all persons or entities; that the

70

VENDOR also guarantees the right of the VENDEES to the possession of the property subject of this contract without the need of judicial action; and furthermore, the VENDOR binds itself to execute any additional documents to complete the title of the VENDEES to the abovedescribed property so that it may be registered in the name of the VENDEES in accordance with the provisions of the Land Registration Act. c) It is hereby expressly agreed and understood by and between the VENDOR and the VENDEES that the house and other improvements found in the premises are included in this sale and that possession of said premises shall be delivered to the VENDEES by the VENDOR at the expiration of one (1) year from the date of the signing and execution of this Deed of Sale with Assumption of Mortgage. d) It is furthermore expressly provided and agreed by and between the VENDOR and the VENDEES that the capital gains tax shall be paid by the VENDOR while any and all fees and expenses incident to the registration and transfer of the title to the aforementioned property shall be defrayed and borne by the VENDEES. e) Attached to this Deed of Sale with Assumption of Mortgage as Annex "A" thereof is the Certificate of ROSANA FLORES, Corporate Secretary of PRICILIANO B. DEVELOPMENT CORPORATION, a corporation duly organized and existing under Philippine Laws who certified that at a special meeting of the Board of Directors of

said corporation held on December 3, 1991 at which meeting a quorum was present, the following resolution was adopted and passed, to wit: RES OLV ED, AS IT IS HER EBY RES OLV ED, that the com pan y, PRI CILI ANO B. GON ZAL ES DEV ELO PME NT is (sic) here by auth oriz ed the Pres iden t, Mr. Ant onio B. Gon zale s to ente r into and /or neg otiat e for the sale of a pro pert y desc ribe d as Tra nsfe r Cert ifica te of Title

71

No. 383 917 with an area of TW O THO USA ND (2,0 00) SQU ARE MET ERS und er the Regi stry of Dee ds of Que zon City; RES OLV ED FUR THE R, that Mr. ANT ONI O B. GON ZAL ES, is here by auth oriz ed to sign, exec ute any and all doc ume nts relat ive ther eto. That afor esai d reso lutio n is in full forc

e and effe ct.

f) Full title and possession over the above-described property shall vest upon the VENDEES upon the full compliance by the with all the terms and conditions herein set forth. 31 (Emphasis supplied.) That under the agreement the private respondent as vendor shall remain in possession of the property for only one year, did not detract from the fact that possession of the property, an indicium of ownership, was retained by private respondent as the alleged vendor. That period of time may be deemed as actually the time allotted to private respondent for fulfilling its part of the agreement by paying its indebtedness to petitioners. This may be gleaned from paragraph (f) that states that "full title and possession" of the property "shall vest upon the VENDEES upon the full

72

compliance by them with all the terms and conditions herein set forth. Paragraph (f) of the contract also evidences the fact that the agreed "purchase price" of fourteen million pesos (P14,000,000.00) was not handed over by petitioners to private respondent upon the execution of the agreement. Only P5,400,000.00 was given by petitioners to private respondent, as the balance thereof was to be dependent upon the private respondent's satisfaction of its mortgage obligation to China Banking Corporation. Notably, the MTC found that petitioners gave private respondent the amount of P8,500,000.00 that should be paid to the bank to cover the latter's obligation, thereby leaving the amount of P100,000.00 (P5,400,000.00 + P8,500,000.00 = P13,900,000.00) of the "purchase price" still unpaid and in the hands of petitioners, the alleged "vendees." Hence, two of the circumstances enumerated in Article 1602 are manifest in the Deed of Sale with Assumption of Mortgage, namely: (a) the vendor would remain in possession of the property (no. 2), and (b) the vendees retained a part of the purchase price (no. 4). On its face, therefore, the document subject of controversy, is actually a contract of equitable mortgage. The denomination of the contract as a deed of sale is not binding as to its nature. The decisive factor in evaluating such an agreement is the intention of the parties, as shown, not necessarily by the terminology used in the contract, but by their conduct, words, actions and deeds prior to, during and immediately after executing the agreement. 32 Private respondent's possession over the property was not denied by petitioners as in fact it was the basis for their complaint for unlawful detainer. Neither does the issuance of a new transfer certificate of title in petitioners' favor import conclusive evidence of ownership or that the agreement between the parties was one of sale. 33 In Macapinlac v. Gutierrez Repide, this Court said: . . . it must be borne in mind that the equitable doctrine . . . to the effect that any conveyance intended as security for a debt will be held in effect to be a mortgage, whether so actually expressed in the instrument or not, operates regardless of the form of the agreement chosen by the contracting parties as the repository of their will. Equity looks through the form and considers the substance; and no kind of engagement can be adopted which will enable the parties to escape from the equitable doctrine to which reference is made. In other words, a conveyance of land, accompanied by registration in the name of the transferee and the issuance of a new certificate, is no more secured from the operation of the equitable doctrine than the most informal conveyance that could be devised. 34 A closer look into the allegations of the complaint would therefore show that petitioners failed to make out a case for unlawful detainer. By the allegations in the complaint, private respondent as a mortgagor had the right to posses the property. A mortgage is a real right constituted to secure an obligation upon real property or rights therein to satisfy with the proceeds of the sale thereof such obligation when the same becomes due and has not been paid or fulfilled. 35 The mortgagor generally retains possession of the mortgaged property 36 because by mortgaging a piece of property, a debtor merely subjects it to a lien but ownership

thereof is not parted with. 37 In case of the debtor's nonpayment of the debt secured by the mortgage, the only right of the mortgagee is to foreclose the mortgage and have the encumbered property sold to satisfy the outstanding indebtedness. The mortgagor's default does not operate to vest in the mortgagee the ownership of the encumbered property, for any such effect is against public policy. 38 Even if the property is sold at a foreclosure sale, only upon expiration of the redemption period, without the judgment debtor having made use of his right of redemption, does ownership of the land sold become consolidated in the purchaser. 39 Petitioners' tenuous claim for possession of the Gilmore property was emasculated further by private respondent's answer to their complaint. The latter claimed ownership of the property, alleging that the agreement was one of mortgage and not of sale. Private respondent alleged therein that in March 1993 (sic), it borrowed money from petitioner Felicidad Oronce alone to redeem the subject property from China Banking Corporation. She agreed to lend it the amount on condition that the Gilmore property should be mortgaged to her to guarantee payment of the loan. However, petitioner Flaminiano took the money from petitioner Oronce and paid the mortgage obligation of private respondent to the China Banking Corporation while claiming that 50% of the amount was hers. Petitioner Flaminiano's husband, Atty. Eduardo Flaminiano, forthwith prepared the Deed of Sale with Assumption of Mortgage and, without private respondent's knowledge, had it registered for which reason a new certificate of title was issued to petitioners. In claiming that the agreement was one of mortgage, private respondent alleged in its answer, inter alia, that the actual total value of the property was thirty million pesos (P30,000,000.00); that while it had possession of the property, petitioners did not then attempt to repossess the same, notwithstanding the lapse of one year from the execution of the document; that petitioners did not pay the real estate taxes even after the transfer of title in their favor, and that petitioners did not deliver to private respondent the alleged purchase price. Considering these claims of private respondent, MTC Branch 41 should have passed upon the issues raised on the ownership of the Gilmore property for the purpose of determining who had the right to possess the same. As it turned out, it simply accepted the allegations of petitioners without examining the supporting documents. Had it closely analyzed the documents, it would have concluded that petitioners could not have validly ousted private respondent from the property since the basis for its claim of ownership, the Deed of Sale with Assumption of Mortgage, was actually a document evidencing an equitable mortgage. It would have accordingly dismissed the complaint for lack of cause of action. In fine, had the MTC exercised its bounden duty to study the complaint, it would have dismissed the same for lack of cause of action upon a provisional ruling on the issue of ownership based on the allegations and annexes of the complaint. Or, exercising caution in handling the case, considering petitioners' bare allegations of ownership, it should have required the filing of an answer to the complaint and, having been alerted by the adverse claim of ownership over the same property, summarily looked into the issue of ownership over the property. As this Court declared in Hilario v. Court of Appeals: It is underscored, however, that the allegations in the complaint for ejectment should sufficiently make out a case for forcible entry or unlawful detainer, as the case may be; otherwise, jurisdiction would not vest in the inferior court. Jurisdiction over the subject matter is, after all, determined by the nature of the action as alleged or pleaded in the

73

complaint. Thus, even where the defendant alleges ownership or title to the property in his or her answer, the inferior court will not be divested of its jurisdiction. A contrary rule would pave the way for the defendant to trifle with the ejectment suit, which is summary in nature, as he could easily defeat the same through the simple expedient of asserting ownership. 40 As discussed above, even a perusal of the complaint without going over the claims of private respondent in his answer would have sufficed to arrive at a provisional determination of the issue of ownership. The importance of such provisional ruling on the issue of ownership is demanded by the fact that, in the event that the claim of the plaintiff in an ejectment case is controverted as in this case, any ruling on the right of possession would be shaky, meaningless and fraught with unsettling consequences on the property rights of the parties. After all, the right of possession must stand on a firm claim of ownership. Had the MTC made a provisional ruling on the issue of ownership, the parties would have availed of other remedies in law early on to thresh out their conflicting claims. Private respondent's action for reformation of instrument was in fact a step in the right direction. However, its failure to pursue that action 41 did not imply that private respondent had no other remedy under the law as regards the issue of ownership over the Gilmore property. There are other legal remedies that either party could have availed of. Some of these remedies, such as an action for quieting of title, have been held to coexist with actions for unlawful detainer. 42 There is a policy against multiplicity of suits but under the circumstances, only the institution of proper proceedings could settle the controversy between the parties in a definitive manner. Hence, although the Court of Appeals resolved the appeal under the misconception that the action for reformation of instrument was still viable, it correctly held that the controversy between the parties was beyond the ordinary issues in an ejectment case. Because of the opposing claims of the parties as to the true agreement between them, the issue of ownership was in a sense a prejudicial question that needed determination before the ejectment case should have been filed. To reiterate, a decision reached in the ejectment case in favor of any of the parties would have nonetheless spawned litigation on the issue of ownership. At any rate, proceedings would have been facilitated had the inferior courts made even a provisional ruling on such issue. The contentious circumstances surrounding the case were demonstrated by an occurrence during the pendency of this petition that cries out for the resolution of the issue of ownership over the Gilmore property. After the parties had filed their respective memoranda before this Court, private respondent filed an urgent motion to cite petitioner Rosita L. Flaminiano and her husband, Atty. Eduardo B. Flaminiano, in contempt of court. 43 The motion was founded on an affidavit of Dr. Tadeo Gonzales who resided at the contested property, deriving his right to do so from private respondent corporation that is owned by his family. Gonzales alleged that on September 20, 1997, petitioner Flaminiano and her husband entered the property through craftiness and intimidation. At around 5:30 p.m. on that day, two (2) men knocked at the gate. When the houseboy, Luis R. Fernandez, opened the gate for pedestrians tentatively, the two men told him that they would like to visit Gonzales' mother who was ailing. Once inside, the two men identified themselves as policemen and opened the gate for twenty (20) men, two (2) trucks and

an L-300 van to enter. When Gonzales went outside the house, he saw thirty (30) to forty (40) men and two (2) trucks entering the driveway. The person he asked regarding the presence of those people inside the property turned out to be the brother of petitioner Flaminiano. That person said, "Kami ang may-ari dito. Matagal na kaming nagtitiis, kayo ang dapat sa labas." After Gonzales had told him that the property was still under litigation before this Court, the man said, "Walang Supreme Court Supreme Court." When Gonzales asked petitioner Flaminiano, who was inside the premises, to order the people to leave, she said, "Papapasukin namin ito dahil sa amin ito. Maglalagay ako ng tao diyan sa loob, sa harap, sa likod. Wala ng pakiusap." When a power generator was brought inside the property and Gonzales pleaded that it be taken out because the noise it would create would disturb his ailing mother, Emiliana Gonzales, petitioner Flaminiano said, "Walang awa-awa sa akin." Atty. Flaminiano butted in and, referring to Gonzales' mother, said, "Ialis mo na, matanda na pala." When Gonzales prevented the switching on of some lights in the house due to faulty wiring, Atty. Flaminiano suggested, "Bakit hindi mo ipasunog ito? May insurance pa kayo 5 million, madali lang 'yan. Short circuit." Since the Flaminianos and their crew were not about to leave the property, Gonzales called up his brother, Atty. Antonio Gonzales, and informed him of what happened. However, instead of confining themselves in the driveway, the Flaminianos and their group entered the terrace, bringing in food. Gonzales was all the while concerned about his 81-year-old mother who had just been discharged from the hospital. However, the Flaminianos stayed until the next day, September 22, 1997, using the kitchen, furniture and other fixtures in the house. Gonzales took pictures of Flaminiano and his companions. When Atty. Flaminiano arrived, he confronted Gonzales and told him, "Hindi ako natatakot kahit kanino ka pa mag-report, kahit pa sa Supreme Court, gusto ko nga mag-reklamo kayo para matapos ang kaso. Sa September 25, may shooting dito, gagawin ko ang gusto ko dito." 44 The affidavits of Renato C. Mola, driver of Atty. Antonio Gonzales, and that of Luis R. Fernandez, houseboy of Dr. Tadeo Gonzales, as well as the xerox copy of the sworn statement dated September 21, 1997 of Pria B. Gonzales before the Philippine National Police in Camp Crame where she filed a complaint against Atty. Flaminiano for the illegal entry into teir house, support the affidavit of Dr. Gonzales. In its supplemental motion 45 to cite petitioner Flaminiano and her husband, Atty. Flaminiano, in contempt of court, private respondent alleged that the Flaminianos committed additional contumacious acts in preventing another member of the family, Mrs. Cipriana Gonzales, from entering the property. In her affidavit, Mrs. Gonzales said that the Flaminianos and their people used "the whole house, except the bedrooms, for their filming activities." 46 Thereafter, private respondent filed an urgent motion for the issuance of a temporary restraining order and/or writ of preliminary injunction with this Court to enjoin petitioners, Atty. Flaminiano and their representatives and agents from preventing private respondent, its agents and representatives from entering the property and to cease and desist from occupying the property or from committing further acts of dispossession of the property. 47 On October 13, 1997, this Court issued the temporary restraining order prayed for. 48 In the motion it filed on October 21, 1997, 49 private respondent informed the Court that the TRO could not be served upon petitioners immediately because, Atty. Flaminiano, their counsel of record, had changed address without informing the Court. It was served upon said counsel only on October 15, 1997. However, instead of complying with this Court's order, petitioners continued occupying the property. On October 16, 1997, after receiving a copy of the TRO, petitioners put up a huge billboard in front of the property stating that it is the national

74

headquarters of the People's Alliance for National Reconciliation and Unity for Peace and Progress (PANRUPP). In their comment on the motion for contempt, petitioners noticeably did not controvert the facts set forth by private respondent in said motion. Instead, it reasserted its claim of ownership over the property as evidenced by TCT No. 67990. They alleged that they had mortgaged the property to the Far East Bank and Trust Company in the amount of thirty million pesos (P30,000,000.00) for which they are paying a monthly interest of around P675,000.00 "without enjoying the material possession of the subject property which has been unlawfully and unjustly detained by private respondent for the last four (4) years as it was used as the residence of the members of the family of its President ANTONIO B. GONZALES without the said private respondent paying rentals thereon for the period from January 1995 up to October 5, 1997 when the said property was voluntarily vacated by the members of the President (sic) of respondent corporation, ANTONIO B. GONZALES, who has since then been a fugitive from justice having been convicted by final judgment of the crime of estafa through falsification of public document and has succeeded in evading his sentence." They averred that Tadeo Gonzales erroneously claimed that the rights of ownership and possession over the property are still under litigation because "the issue of ownership is no longer involved in this litigation when the complaint for reformation of instrument with annulment of sale and title filed by private respondent" was dismissed with finality by reason of non-suit. Hence, they claimed that they "now stand to be the unquestionable registered and lawful owners of the property subject of controversy" and that the July 24, 1996 Decision of the Court of Appeals "has already lost its virtuality and legal efficacy with the occurrence of a 'supervening event' which is a superior cause superseding the basis of the judgment" in CA-G.R. No. 39227 of respondent court. They informed the Court that they are now leasing the property to PANRUPP from October 1, 1997 to September 30, 1998. They alleged, however, that the property is in a "deplorable state of decay and deterioration" that they saw the need "to act swiftly and decisively to prevent further destruction" of the property where they "invested millions of pesos of their life-time savings to acquire the same." Hence, they sought the assistance of barangay officials in Barangay Mariana, New Manila who helped them effect "the peaceful entry into the property of the petitioners without the use of strategy, force and intimidation contrary to what was alleged" in the motion for contempt. They "peacefully took over" possession of the property on September 20, 1997 but allowed the immediate members of the family of private respondent's president to stay on. The family finally agreed to vacate the premises on October 5, 1997 "upon the offer of the petitioners to shoulder partially the expenses for the hospitalization of the ailing mother at the St. Luke General Hospital where she was brought by an ambulance accompanied by a doctor" at petitioners' expense. Petitioners questioned the issuance by this Court of the TRO on October 13, 1997, asserting that when it was issued, there were "no more acts to restrain the illegal occupants of the subject property (as they) had already peacefully vacated the premises on October 5, 1997 or more than a week after the said TRO was issued by the Third Division" of this Court. They prayed that the motion for contempt be denied for lack of merit and that the TRO issued be lifted and set aside "for the act or acts sought to be restrained have already been done and have become a fait accompli before the issuance of the TEMPORARY RESTRAINING ORDER on October 13, 1997." 50 As earlier discussed, petitioners' claim that the dismissal of the action for reformation of instrument for non-suit had written finis to the issue of ownership over the Gilmore

property is totally unfounded in law. Petitioners should be reminded that the instant petition stemmed from an unlawful detainer case, the issue of which is merely possession of the property in question. The issue of ownership has not been definitively resolved for the provisional determination of that issue that should have been done by the MTC at the earliest possible time, would only be for the purpose of determining who has the superior right to possess the property. Inasmuch as this Court has resolved that the rightful possessor should have been private respondent and its representatives and agents, the TRO issued by this Court on October 13, 1997 should not be lifted. That the TRO was issued days before private respondent left the property is immaterial. What is in question here is lawful possession of the property, not possession on the basis of self-proclaimed ownership of the property. For their part, petitioners should cease and desist from further exercising possession of the same property which possession, in the first place, does not legally belong to them. The conduct of petitioner Flaminiano in taking possession over the property as alleged by private respondent through Tadeo Gonzales is deplorably high-handed. On an erroneous assumption that she had been legally vested with ownership of the properly, she took steps prior to the present proceedings by illegally taking control and possession of the same property in litigation. Her act of entering the property in defiance of the writ of preliminary injunction issued by the Court of Appeals constituted indirect contempt under Section 3, Rule 71 of the Rules of Court that should be dealt with accordingly. Be that as it may, what is disturbing to the Court is the conduct of her husband, Eduardo Flaminiano, a lawyer 51whose actuations as an officer of the court should be beyond reproach. His contumacious acts of entering the Gilmore property without the consent of its occupants and in contravention of the existing writ or preliminary injunction issued by the Court of Appeals and making utterances showing disrespect for the law and this Court, are certainly unbecoming of a member of the Philippine Bar. To be sure, he asserted in his comment on the motion for contempt that petitioners "peacefully" took over the property. Nonetheless, such "peaceful" take-over cannot justify defiance of the writ of preliminary injunction that he knew was still in force. Notably, he did not comment on nor categorically deny that he committed the contumacious acts alleged by private respondent. Through his acts, Atty. Flaminiano has flouted his duties as a member of the legal profession. Under the Code of Professional Responsibility, he is prohibited from counseling or abetting "activities aimed at defiance of the law or at lessening confidence in the legal system." 52 WHEREFORE, the instant petition for review on certiorari is hereby DENIED and the questioned Decision of the Court of Appeals AFFIRMED without prejudice to the filing by either party of an action regarding the ownership of the property involved. The temporary restraining order issued on October 13, 1997 is hereby made permanent. Petitioners and their agents are directed to turn over possession of the property to private respondent. Petitioner Rosita Flaminiano is hereby held guilty of contempt of court for disobeying the writ of injunction issued by the Court of Appeals and accordingly fined P20,000.00 therefor. Her counsel and husband, Atty. Eduardo B. Flaminiano, is ordered to pay a fine of P25,000.00 for committing contumacious acts unbecoming of a member of the Philippine Bar with a stern warning that a repetition of the same acts shall be dealt with more severely. Let a copy of this Decision be attached to his record at the Office of the Bar Confidant. This Decision is immediately executory. Costs against petitioners.

75

SO ORDERED. 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.

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 reconsideration 4 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

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 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

76

I. Petitioner maintains that his dismissal from employment was illegal because of want of just cause therefor and nonobservance 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.15 Suffering 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 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

77

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 employeremployee 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 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 employee 23 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 residenceper 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 thehacienda for 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

78

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. 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 19831984 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 workrelated tasks: It is also significant that the special power of attorney 32 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-INFACT 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. We are likewise not impressed by the deposition of Manolo Gomez, as witness for private respondent, ascribing

79

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 therefor 37 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 employment 38does 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 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

80

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 1112, 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 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 employeeemployer relationship is hardly possible. 49

81

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: 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 zeal 55 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, sanssentimentality, 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. G.R. No. L-29543 November 29, 1969

GLORIA PAJARES, petitioner-appellant, vs. JUDGE ESTRELLA ABAD SANTOS, MUNICIPAL COURT OF MANILA and UDHARAM BAZAR CO., respondentsappellees.

82

Moises C. Nicomedes for petitioner-appellant. Tomas Lopez Valencia for respondents-appellees. TEEHANKEE, J.: We dismiss as frivolous petitioner-appellant's appeal from the lower Court's Order of dismissal of her petition for a writ of certiorari with prayer for preliminary injunction against respondent judge's order denying her motion for a bill of particulars as the defendant in a simple collection case. The origin of the case is narrated in the Court of Appeals' Resolution dated August 16, 1968 certifying the appeal to this Court as involving purely questions of law: This is an appeal interposed by petitioner Gloria Pajares from the order dated July 21, 1962 issued by the Court of First Instance of Manila, dismissing her petition for certiorari with preliminary injunction against respondent Judge Estrella Abad Santos of the Municipal Court of Manila and respondent Udharam Bazar & Co. There is no dispute that on April 25, 1962, the Udharam Bazar & Co. sued Gloria Pajares before the Municipal Court of Manila for recovery of a certain sum of money. The lawsuit was docketed in the inferior court as Civil Case No. 97309 and was eventually assigned to the sala of the respondent Judge Abad Santos. In its complaint the Udharam Bazar & Co. averred, among others, as follows: "2. That defendant in 1961, ordered from the plaintiff quantities of ready made goods and delivered to her in good condition and same were already sold, but did not make the full payment up to the present time; "3. That defendant is still indebted to the plaintiff in the sum of P354.85, representing the balance of her account as the value of the said goods, which is already overdue and payable." Instead of answering the complaint against her, Gloria Pajares, however, moved for a bill of particulars praying the inferior court to require the Udharam Bazar & Co. to itemize the kinds of goods which she supposedly purchased from the said company, the respective dates they were taken and by whom they were received as well as their purchase prices, alleging that without this bill she would not be able to meet the issues raised in the complaint. After due hearing, the inferior court denied the motion of Gloria Pajares for a bill of particulars. Her motion for reconsideration having been denied too by the said court, she then brought the incident on certiorari to the Court of First Instance of Manila, alleging in support of her petition that in denying her motion for a bill of particulars, the respondent judge acted in grave abuse of discretion. But on July 19, 1962, herein respondent Udharam Bazar & Co. filed a motion to dismiss the petition for a writ of certiorari, as well as the petition for a writ of preliminary injunction, for the reasons: (1) that the allegations of the complaint filed by the said company in the inferior court, particularly

paragraphs 2 and 3 thereof, are clear, specific and sufficiently appraise the defendant, now herein petitioner Gloria Pajares, of the nature of the cause of action against her so as to enable her to prepare for her defenses; and (2) that things asked for in the motion for a bill of particulars are evidentiary matters, which are beyond the pale of such bill. Convinced that the said motion of the company is well founded, the lower court accordingly dismissed the petition on April 21, 1962. Her subsequent motion for reconsideration having been similarly denied by the court below, Gloria Pajares undertook the present appeal to this Court, contending under her lone assignment of error to maintain her such appeal that the lower court erred in dismissing her petition for certiorari with preliminary injunction, in its order dated July 21, 1962, as amended by its order dated August 18, 1962. The only genuine issues involved in the case at bar are: (1) whether the allegations of the complaint sufficiently appraise Gloria Pajares of the nature of the cause of action against her; and (2) whether the items asked for by the said Gloria Pajares in her motion for a bill of particulars constitute evidentiary matters. To our mind these are purely legal questions. A perusal of the brief of the parties has shown that no genuine factual questions are at all involved in this appeal. It is plain and clear that no error of law, much less any grave abuse of discretion, was committed by respondent judge in denying appellant's motion for a bill of particulars in the collection case instituted in the Municipal Court of Manila by private respondent-appellee for the recovery of her indebtedness of P354.85 representing the overdue balance of her account for ready-made goods ordered by and delivered to her in 1961. Appellee's complaint precisely and concisely informed appellant of the ultimate or essential facts constituting the cause of action against her, in accordance with the requirements of the Rules of Court.1 It was therefore improper for appellant, through her counsel, to insist on her motion that appellee as plaintiff "submit a bill of particulars, specifying therein in detail the goods represented by the alleged amount of P354.85, giving the dates and invoice numbers on which they were delivered to the defendant, the amount due on each such invoice and by whom they were received." These particulars sought all concerned evidentiary matters and do not come within the scope of Rule 12, section 1 of the Rules of Court which permits a party "to move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularly to enable him to prepare his responsive pleading or to prepare for trial." Since appellant admittedly was engaged in the business of buying and selling merchandise at her stall at the Sta. Mesa Market, Quezon City, and appellee was one of her creditors from whom she used to buy on credit ready made goods for resale, appellant had no need of the evidentiary particulars sought by her to enable her to prepare her answer to the complaint or to prepare for trial. These particulars were just as much within her knowledge as appellee's. She could not logically pretend ignorance as to the same, for all she had to do was to check and verify her own records of her outstanding account with appellee and state in her answer whether from her records the outstanding balance of her indebtedness was in the sum of P354.85, as claimed by appellee, or in a lesser amount. The record shows, furthermore, that a month before appellee filed its collection case, it had written appellant a

83

demand-letter for the payment of her outstanding account in the said sum of P354.85 within one week. Appellant, through her counsel, wrote appellee under date of March 23, 1962, acknowledging her said indebtedness but stating that "Due to losses she has sustained in the operation of her stall, she would not be able to meet your request for payment of the full amount of P354.85 at once. I would therefore request you to be kind enough to allow her to continue paying you P10.00 every 15th and end of the month as heretofore." No error was therefore committed by the lower court in summarily dismissing appellant's petition for certiorariagainst respondent judge's order denying her motion for a bill of particulars, as pretended by appellant in her lone assignment of error. Well may we apply to this appeal, the words of Mr. Justice J.B.L. Reyes in an analogous case,2 that "the circumstances surrounding this litigation definitely prove that appeal is frivolous and a plain trick to delay payment and prolong litigation unnecessarily. Such attitude deserves condemnation, wasting as it does, the time that the courts could well devote to meritorious cases." Here, this simple collection case has needlessly clogged the court dockets for over seven years. Had appellant been but prudently advised by her counsel to confess judgment and ask from her creditor the reasonable time she needed to discharge her lawful indebtedness, the expenses of litigation that she has incurred by way of filing fees in the Court of First Instance, premiums for her appeal bond, appellate court docket fees, printing of her appellant's brief, and attorney's fees would have been much more than sufficient to pay off her just debt to appellee. Yet, here she still remains saddled with the same debt, burdened by accumulated interests, after having spent uselessly much more than the amount in litigation in this worthless cause. As we recently said in another case,3 the cooperation of litigants and their attorneys is needed so that needless clogging of the court dockets with unmeritorious cases may be avoided. There must be more faithful adherence to Rule 7, section 5 of the Rules of Court which provides that "the signature of an attorney constitutes a certificate by him that he has read the pleading and that to the best of his knowledge, information and belief, there is good ground to support it; and that it is not interposed for delay" and expressly admonishes that "for a willful violation of this rule an attorney may be subjected to disciplinary action." WHEREFORE, the order appealed from is affirmed, and petitioner-appellant's counsel shall pay treble costs in all instances. This decision shall be noted in the personal record of the attorney for petitioner-appellant in this Court for future reference. So ordered. A.C. No. 8391 November 23, 2010 [Formerly CBD Case No. 06-1631] MANUEL C. YUHICO, Complainant, vs. ATTY. FRED L. GUTIERREZ, Respondent. DECISION PER CURIAM: Before us is a Complaint1 dated January 10, 2006 for disciplinary action against respondent Atty. Fred L. Gutierrez (Gutierrez) filed by Manuel C. Yuhico (Yuhico) for violation of Rule 1.01 of the Code of Professional Responsibility. The antecedent facts of the case are as follows: Complainant Yuhico alleged that he met Gutierrez at the Office of the City Prosecutor in Pasig City on May 4, 2005.

Yuhico was there to testify at the preliminary investigation of a Complaint for Estafa against one Jose S. Chicharro, who was then being represented by Gutierrez. He claimed that they eventually became acquainted as they frequently saw each other during the hearings of the case. On June 24, 2005, Yuhico averred that Gutierrez phoned him and asked for a cash loan of P30,000.00. Gutierrez then claimed that he needed money to pay for the medical expenses of his mother who was seriously ill. Yuhico immediately handed the money. In turn, Gutierrez promised to pay the loan very soon, since he was expecting to collect his attorney's fees from a Japanese client. On June 28, 2005, Gutierrez again asked Yuhico for a loan, this time in the amount of P60,000.00, allegedly to pay the medical expenses of his wife who was also hospitalized. Again, Yuhico readily issued to Atty. Gutierrez an Equitable PCI Bank check amounting to P60,000.00.2 Again, Gutierrez promised to pay his two loans totalling toP90,000.00 "within a short time." On July 12, 2005, Yuhico asked Gutierrez to pay his loans. Atty. Gutierrez failed to pay. In a text message on July 12, 2005 at 2:47 p.m., Atty. Gutierrez stated: I really don't know how to say this as I don't want to think that I may be taking advantage of our friendship. You see i've long expected as substantial attorney's fees since last week from my client Ogami from japan. It's more or less more than 5m and its release is delayed due to tax and the law on money laundering. From my estimate it wud be collected by me on or b4 august 5. N the meantime I am quite in a financial difficulty as everyone is. Later, Yuhico alleged that Gutierrez attempted to borrow money from him again. He said Gutierrez claimed that his daughter needed P70,000.00 to pay the fees required to take the licensure examination in the U.S. Medical Board. Gutierrez assured him that he will pay all his debts on or before August 10, 2005. In his text message on July 12, 2005 at 3:05 p.m., Atty. Gutierrez said: As you are aware of these past few days were really great trials 4 me. My mother died, my wife got sick and now my bro in law died. These events led me to struggling finances. To get me going I tried to sel my car but my buyer backed out. Now my immediate problem is the amt of 70thousand which my daughter needs for her payment sa US medical board. I dnt want her to miss this opportunity. Can u help me again? I will pay all my debts on or b4 Aug.10 pls. Thanks. However, this time, Yuhico refused to lend Gutierrez any amount of money. Instead, he demanded from Gutierrez the payment of his debts. Gutierrez then sent another text message to Yuhico on July 12, 2005 and requested him to give him another week to pay his debts. Gutierrez failed to make the payment. Yuhico repeatedly requested the payment of loans from Gutierrez from August to December 2005. Gutierrez, on the other hand, for numerous times promised to pay, but always failed to do so. At one point, Gutierrez even asked Yuhico's account number and promised to deposit his payment there, but he never deposited the payment. On December 5, 2005, Yuhico's counsel sent a demand letter3 to Gutierrez to pay his debts, but to no avail. Thus, Yuhico filed the instant complaint against Gutierrez before the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD).

84

On January 12, 2006, the IBP-CBD directed Gutierrez to submit his Answer on the complaint against him.4 In his Answer,5 Gutierrez claimed that Yuhico was the one who offered to lend him money in gratitude for the assistance he extended to the latter when he was under threat by his clients. He, however, admitted that he accepted the loan due to compelling circumstances. Gutierrez added that he has no intention of evading his obligation to pay his debts, but he is currently in financial distress, thus, he cannot pay his debts yet. He claimed he will pay his debts when his financial condition improves. On March 24, 2006, both parties were directed to appear at the mandatory conference before the IBP-CBD. Gutierrez failed to attend on two occasions. On June 9, 2006, the IBP-CBD directed both parties to submit their respective position papers. Likewise, during the clarificatory hearing before the IBPCBD, only the complainant's counsel attended. There was no appearance on the part of Gutierrez. In his Position Paper, Yuhico manifested that the Supreme Court, in Huyssen v. Atty. Gutierrez,6 had already disbarred Gutierrez from the practice of law for gross misconduct, in view of his failure to pay his debts and his issuance of worthless checks. Subsequently, in a Resolution dated December 11, 2008, the, IBP-CBD found Gutierrez guilty of non-payment of just debts and ordered him to return the amount of Ninety Thousand Pesos (P90,000.00) to Yuhico, with interest until full payment. In view of the previous disbarment of Gutierrez, the IBP-CBD recommended to the Court that, instead of rendering the instant case moot, Gutierrez should be disbarred anew effective upon the expiration of the sanction pursuant to the March 26, 2004 Supreme Court Decision. The IBP-CBD explained that while we do not have jurisprudence on the issue of double or multiple disbarment, the American jurisprudence, however, recognizes double or multiple disbarments as well as the minimum requirement of five (5) years for readmission to the Bar. On December 11, 2008, the IBP Board of Governors, in Resolution No. XVIII-2008-649, resolved to adopt the report and recommendation of the IBP-CBD and approve it with modification as to the payment of the amount of Ninety Thousand Pesos (P90,000.00), this time, without interest. We sustain the findings of the IBP, but with modification as to its recommendations. We have held that deliberate failure to pay just debts constitute gross misconduct, for which a lawyer may be sanctioned with suspension from the practice of law. Lawyers are instruments for the administration of justice and vanguards of our legal system. They are expected to maintain not only legal proficiency, but also a high standard of morality, honesty, integrity and fair dealing so that the peoples faith and confidence in the judicial system is ensured. They must, at all times, faithfully perform their duties to society, to the bar, the courts and to their clients, which include prompt payment of financial obligations. They must conduct themselves in a manner that reflects the values and norms of the legal profession as embodied in the Code of Professional Responsibility.7 In the instant case, there is no question as to Gutierrez's guilt. His admission of the loan he contracted and his failure to pay the same leaves no room for interpretation. Neither

can he justify his act of non-payment of debt by his dire financial condition. Gutierrez should not have contracted loans which are beyond his financial capacity to pay.1avvphi1 Likewise, we cannot overlook Gutierrez's propensity of employing deceit and misrepresentations for the purpose of obtaining debts without the intention of paying them. Records show Gutierrez's pattern of habitually making promises of paying his debts, yet repeatedly failing to deliver. The series of text messages he sent to Yuhico promising to pay his loans, while simultaneously giving excuses without actually making good of his promises, is clearly reprehensible. Undoubtedly, his acts demonstrate lack of moral character to satisfy the responsibilities and duties imposed on lawyers as professionals and as officers of the court. We also note that in Huyssen v. Atty. Gutierrez,8 the Court had already disbarred Gutierrez from the practice of law for gross misconduct due to non-payment of just debts and issuance of bouncing checks. In view of the foregoing, while we agree with the findings of the IBP, we cannot, however, adopt its recommendation to disbar Gutierrez for the second time, considering that Gutierrez had already been previously disbarred. Indeed, as the IBP pointed out, we do not have double or multiple disbarment in our laws or jurisprudence. Neither do we have a law mandating a minimum 5-year requirement for readmission, as cited by the IBP. Thus, while Gutierrez's infraction calls for the penalty of disbarment, we cannot disbar him anew. WHEREFORE, Resolution No. XVIII-2008-649 dated December 11, 2008, of the IBP, which found FRED L. GUTIERREZ guilty of GROSS MISCONDUCT, is AFFIRMED. He is ORDERED to PAY the amount of Ninety Thousand Pesos (P90,000.00) to the complainant immediately from receipt of this decision with interest. Let a copy of this Decision be furnished and properly recorded in the Office of the Bar Confidant, to be appended to the personal record of Gutierrez; the Integrated Bar of the Philippines; and the Office of the Court Administrator, for circulation to all courts in the country for their information and guidance. This Decision shall be immediately executory. SO ORDERED. ADM. CASE NO. No. 5195 April 16, 2009

NELIA PASUMBAL DE CHAVEZ-BLANCO, REPRESENTED BY HER ATTORNEY-IN-FACT, ATTY. EUGENIA J. MUOZ, Complainant, vs. ATTY. JAIME B. LUMASAG, JR., Respondent. RESOLUTION TINGA, J.: This is an administrative complaint for disbarment filed by complainant Nelia P. de Chavez-Blanco against respondent Atty. Jaime Lumasag, Jr., for deceit, dishonesty and gross misconduct. In a Report and Recommendation dated 11 December 2001,1 the Integrated Bar of the Philippines (IBP) Commissioner Milagros San Juan found respondent guilty of the charges and recommended the penalty of disbarment.

85

Subsequently, the IBP Board of Governors reduced the penalty to a five (5)-year suspension in its Resolution XV2002-229 dated 29 June 2001. In a Resolution dated 9 December 2002, the Court, however, remanded the case to the IBP in view of its findings that no formal hearing/investigation was conducted. Upon remand to the IBP, the case was re-assigned to IBP Commissioner Dennis A.B. Funa and hearings were accordingly held thereafter. Through her attorney-in-fact, Atty. Eugenia J. Muoz, complainant alleged in her Complaint2 that she was a resident of the United States of America together with her husband, Mario Blanco. She also stated that she owned two (2) adjacent parcels of land in Quezon City, each with an area of 400 square meters, covered by Transfer Certificates of Title (TCT) Nos. 22162 and 22163 registered in her name. In a document dated 20 November 1989, she authorized respondent, who were her husbands first cousin, to sell said lots.3 In a letter dated 20 March 1990, respondent reported that he had sold only one lot for the price of P320,000.00 and therefrom he deducted P38,130.00 for taxes and commissions. And, allegedly, per complainants instructions, he remitted the remaining balance of P281,900.00 to a certain Belen Johnnes.4 In 1995, complainant was informed by respondent that the other lot remained unsold due to the presence of squatters on the property. In December 1998, Mario Blanco discovered that in truth, the two (2) lots had been sold on 11 March 1990 to the spouses Celso and Consolacion Martinez for the price of P1,120,000.00, and that new titles had been issued to the transferees. Mario Blanco confronted respondent with these facts in a letter, but the latter disregarded the same. Thus, in May 1999, complainant, through Atty. Muoz sent a demand letter to respondent directing him to remit and turn over to her the entire proceeds of the sale of the properties. Soon thereafter, respondent admitted the sale of the properties and his receipt of its proceeds, but he never tendered or offered to tender the same to complainant. Despite repeated and continued demands, respondent has since not remitted the amount equivalent to P838,100.00 (P278,000.00 for the first parcel of land andP560,000.00 for the second).5 Complainant also averred that the Special Power of Attorney dated 16 January 1989, which respondent had used to sell the lots is a forgery and a falsified document, as the signature therein were not the real signatures of complainant and her spouse. In addition, they could not have acknowledged the document before a notary, as they were not in the Philippines at the time.6 For his part, respondent vehemently denied all the accusations of deceit, dishonesty and gross misconduct.7 Respondent countered that Mario Blanco was the true owner of the properties, which had to be titled in complainants name, as Mario Blanco was a U.S. citizen. Mario Blanco had requested him to look for a buyer of the properties and, in the course of selling them, respondent claimed that he had only transacted with the former and never with complainant. Respondent averred that he had been authorized in November 1989 to sell the property, through a Special Power of Attorney, for a price of not less than P250,000.00 net for the owner.8

Respondent also alleged that the deed of absolute sale if the two (2) lots had been executed on 19 March 1990 but, only one lot was initially paid in the amount of P281,980.00, which he immediately remitted to Mario Blanco. The payment for the other lot was withheld, pending the relocation of the squatters who had been occupying the premises. And when respondent had finally collected the proceeds of the second lot more than three (3) years after, he asked Mario Blanco if the former could use the amount for a real estate venture whose profit, if successful, he would share with the latter. Mario Blanco allegedly did not think twice and consented to the proposal. The venture, however, did not push through.9 Respondent strongly maintained that the two (2) lots had been sold for only P563,960.00.10 Finally, respondent denied the charge of falsification. He claimed that complainant and her spouse, Mario Blanco, had in fact signed the Special Power of Attorney, but it was only notarized later.11 In his Report and Recommendation dated 4 December 2006, Atty. Dennis A.B. Funa arrived at the following findings: It appears from the records that the two lots were sold by Respondent for P560,000.00, not P1,120,000.00 as alleged by Complainant. The basis is the Deed of Absolute Sale dated March 11, 1990 which shows that the two lots composing 800 sq. meters being sold for P560,000.00. There appears to be no documentary basis for the claimed amount of P1,120,000.00 of Complainant. However, Respondent in his Comment stated that the two lots were sold by him for P563,960.00. In any case, we shall uphold and apply the amount stated in the Deed of Absolute Sale. In Respondents letter dated March 20, 1990, he acknowledged that he already received P320,000.00 as the "total value of one lot". Moreover, the computation shows that the P320,000.00 was only for 400 sq.m. as the computation stated: "400 sq.m. x 800p/sqm=P320,000.00." Therefore, if the first lot was sold for P320,000.00, then the second lot must have been sold for P240,000 x x x x x x there was clear deception on the part of Respondent when he wrote the letter dated March 20, 1990 "informing" the Blanco spouses that he had sold only one of the two parcels of land for P320,000.00. This is belied by the fact that on March 11, 1990, or 9 days before he wrote the letter, a Deed of Absolute Sale was executed by him selling the two lots for P560,000.00. This Deed of Absolute Sale was notarized on March 19, 1990. During the hearing, Respondent admitted that the Deed of Sale covered two lots. Clearly, Respondent was not forthcoming towards the Blanco spouses.1awphi1 xxx x x x Instead of representing that two lots had been sold for P560,000.00. Respondent only represented that he sold only one lot for P320,000.00 and pocketing the balance of P240,000.00. xxx During the course of hearing, Respondent claims that the Deed of Sale referred to above is a fake, and that there is a Deed of Sale showing a selling price of P320,000.00 which is the real Deed of Sale. However, no such Deed of Sale has been presented by Respondent and no such Deed of Sale appears in the records. Later in the hearing, Respondent retracted his statement claiming he was merely confused.

86

As for the alleged falsification of a Special Power of Attorney dated January 16, 1989, wherein the signatures of the Blanco spouses appear in the SPA when they were not in the Philippines on January 16, 1989 but were allegedly in the United States, their absence in the country has not been satisfactorily established since mere xerox copies of their passports, although noted by a notary public, cannot duly establish their absence in the country on that date. Other acceptable documents such as a certification from the Bureau of Immigration would have been appropriate but which, however, had not been presented. In any case, Respondent denies the charge of falsification.12 (Citations omitted) [Emphasis supplied] Accordingly, the IBP Commissioner recommended that, in view of the fact that respondent was already 72 years old, he be meted out the penalty of suspension of one (1)-year suspension, not disbarment as had been prayed for and not 5 year-suspension as had been earlier resolved by the IBP Board of Governors. Moreover, the IBP Commissioner recommended that respondent be ordered to deliver to Complainant the amount of P240,000.00 plus the legal interest rate of 6% per annum computed from March 1990. On 31 May 2007, the IBP Board of Governors passed Resolution No. XVII-2007-222 adopting and approving the Report and Recommendation of the IBP Commissioner.13 The Court agrees with the findings and conclusion of the IBP, but a reduction of the recommended penalty is called for, following the dictum that the appropriate penalty for an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts.14 A lawyer may be disciplined for any conduct, in his professional or private capacity, that renders him unfit to continue to be an officer of the court. Canon 1 of the Code of Professional Responsibility commands all lawyers to uphold at all times the dignity and integrity of the legal profession. Specifically, Rule 1.01 thereof provides: Rule 1.01A lawyer shall not engage in unlawful, dishonest and immoral or deceitful conduct. There is no need to stretch ones imagination to arrive at an inevitable conclusion that respondent committed dishonesty and abused the confidence reposed in him by the complainant and her spouse. Records show that two lots had been sold by respondent as evidenced by the Deed of Absolute Sale of 11 March 1990. Respondent, however, taking advantage of the absence of complainant and her spouse from the Philippines and their complete trust in him, deceitfully informed them in a letter dated 20 March 1990 that he had sold only one. It can be reasonably deduced from the exchanges between the parties that the proceeds of the first lot had been transmitted to complainant and her spouse. Respondents contention, though, that he had been authorized to retain the proceeds of the second is specious, as complainant and her spouse could not have given the same, having been left in the dark as regards its sale. And despite repeated demands, to date, there is no showing that the outstanding amount has been paid. Thus, respondents deceitful conduct warrants disciplinary sanction and a directive for the remittance of the remaining proceeds is in order. As to the charge of falsification, the Court agrees with the IBP that the same appears to be unsubstantiated. Settled is the rule that, in administrative proceedings, the burden of proof that the respondent committed the acts complained of rests on the complainant. In fact, if the complainant, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner the facts upon which he bases his claim, the respondent is under no obligation to prove his

exception or defense.15 Mere allegation is not evidence and is not equivalent to proof.16 Respondents actions erode the public perception of the legal profession. They constitute gross misconduct for which he may be suspended, following Section 27, Rule 138 of the Rules of Court, which provides: Sec. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience appearing as attorney for a party to a case without authority to so do. Complainant asks that respondent be disbarred. The Court finds, however, that suspension from the practice of law is sufficient to discipline respondent. The supreme penalty of disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court and member of the bar. While the Court will not hesitate to remove an erring attorney from the esteemed brotherhood of lawyers, where the evidence calls for it, the Court will also not disbar him where a lesser penalty will suffice to accomplish the desired end. In this case, the Court finds the recommended penalty of suspension of two (2) years for respondent to be too severe, considering his advanced age. The Court believes that a suspension of six (6) months is sufficient. Suspension, by the way, is not primarily intended as punishment, but as a means to protect the public and the legal profession.171avvphi1 WHEREFORE, in view of the foregoing, respondent Atty. Jaime Lumasag, Jr. is SUSPENDED from the practice of law for a period of SIX (6) MONTHS, effective immediately, with a warning that a repetition of the same or a similar act will be dealt with more severely. Further, respondent is ordered to deliver to complainant the amount ofP240,000.00 plus legal interest rate of 6% per annum computed from March 1990. Let notice of this Resolution be spread in respondents record as an attorney in this Court, and notice thereof be served on the Integrated Bar of the Philippines and on the Office of the Court Administrator for circulation to all the courts concerned. SO ORDERED. 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

87

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.nt 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 oficiobefore 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

88

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, 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. G.R. No. L-36138 January 31, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO ROSQUETA, JR., EUGENIO ROSQUETA and CITONG BRINGAS, defendants-appellants; ATTY. GREGORIO B. ESTACIO, respondent. RESOLUTION

FERNANDO, J.:1wph1.t Every now and then, although there seems to be more of such cases of late, a member of the bar is proceeded against for failure to live up to the responsibility owed to a client as well as to this Court. This is another such instance. In our resolution of May 25, 1973, we required respondent Gregorio B. Estacio, counsel de parte for appellants to show cause why disciplinary action should not be taken against him for failure to file the brief for appellants within the period which expired on March 30, 1973. He failed to show cause as thus required, and on September 7, 1973, we issued a resolution suspending him from the practice of law except for the purpose of filing the brief which should be done within thirty days from receipt of notice. Then on October 22, 1973, he filed a motion for reconsideration wherein it appeared that he did seek to explain his failure to file the brief on time, but he left it to be mailed on June 9, 1973 with Antonio Rosqueta, Sr., father of appellants Antonio Rosqueta, Jr. and Eusebio Rosqueta, who, however, was unable to do so as on the 10th of June, his house caught fire. He would impress on this Court that he was not informed of such occurrence until the preparation of his motion for reconsideration. At any rate, he would stress that both Antonio Rosqueta, Sr. and Salvador Labariento, father-in-law of the third appellant, Citong Bringas, informed him they would withdraw the appeal as they could not raise the money needed for pursuing it. He had a supplement to such motion for reconsideration filed on October 25, 1973 wherein he stated that he could not secure the affidavits of appellants themselves as two of them were in the Penal Colony in Davao and the third in the Iwahig Penal Colony in Palawan. On November 5, 1973, this Court required appellants to comment on a motion for reconsideration of respondent concerning specifically their alleged desire to withdraw appeal. Then on December 27, 1973, there was a motion of respondent submitting two affidavits, one from Antonio Rosqueta, Jr. and the aforesaid Citong Bringas and the other from Eusebio Rosqueta wherein they indicated their consent and approval to respondent's motion to withdraw appeal. The joint affidavit of the first two appellants reads as follows: "1. That we are the same persons named above who have been charged in Criminal Case No. L-36138 entitled People v. Antonio Rosqueta, Jr., et al.pending on appeal before the Supreme Court of the Philippines; 2. That we hereby consent and approve the motion to withdraw the appeal filed by our counsel, Atty. Gregorio B. Estacio before the Supreme Court of the Philippines on that Criminal Case No. L-36138 their pending in said Court; 3. That we have given our consent and approval of our own will voluntarily, without duress, force, threat or fraud or deceit; [In witness whereof], we have hereunto set our signatures this 4th day of December 1973 in the Municipality of Panabo, Davao." 1 The affidavit of Eusebio Rosqueta follows: "1. That I am one of the accused in that case entitled People v. Antonio Rosqueta, Jr., et al. under G.R. No. L-36138 now pending before the Supreme Court of the Philippines; 2. That I hereby give my consent and approval to the Motion to Withdraw the Appeal which has been filed by our counsel Atty. Gregorio B. Estacio before the Supreme Court on the above-stated case; 3. That I have reached this conclusion after I have conferred with our counsel Atty. Gregorio B. Estacio and this statement hereby revokes and nullifies the statement signed by me on December 5, 1973 at the Central Sub-Colony, Iwahig Penal Colony, Palawan before witnesses, namely, Mr. Abencio B. Gabayan and Miss Merle J. Jopida; 4. That I have executed this affidavit of my own free will, without intimidation, threat, fraud, deceit, duress or force; [In witness whereof], I have hereunto set my hand this 13th day of December, 1973 in the City of Puerto Princesa." 2 Respondent's liability is thus mitigated but he cannot be absolved from the irresponsible conduct of which he is guilty. Respondent should be aware that even in those cases

89

where counsel de parte is unable to secure from appellants or from their near relatives the amount necessary to pursue the appeal, that does not necessarily conclude his connection with the case. It has been a commendable practice of some members of the bar under such circumstances, to be designated as counsel de oficio. That way the interest of justice is best served. Appellants will then continue to receive the benefits of advocacy from one who is familiar with the facts of the case. What is more, there is no undue delay in the administration of justice. Lawyers of such category are entitled to commendation.<re||an1w> They manifest fidelity to the concept that law is a profession and not a mere trade with those engaged in it being motivated solely by the desire to make money. Respondent's conduct yields a different impression. What has earned a reproof however is his irresponsibility. He should be aware that in the pursuance of the duty owed this Court as well as to a client, he cannot be too casual and unconcerned about the filing of pleadings. It is not enough that he prepares them; he must see to it that they are duly mailed. Such inattention as shown in this case is inexcusable. At any rate, the suspension meted on him under the circumstances is more than justified. It seems, however, that well-nigh five months had elapsed. That would suffice to atone for his misdeed. WHEREFORE, the suspension of Atty. Gregorio B. Estacio is lifted. The requirement to file the brief is dispensed with but Atty. Gregorio B. Estacio is censured for negligence and inattention to duty. Likewise, as prayed for by appellants themselves, their appeal is dismissed. G.R. No. L-961 September 21, 1949

VICENTE J. FRANCISCO Attorney-at-Law 1462 Estrada, Manila July 13, 1945.

Mrs. Blandina Gamboa Hilado Manila, Philippines My dear Mrs. Hilado: From the papers you submitted to me in connection with civil case No. 70075 of the Court of First Instance of Manila, entitled "Blandina Gamboa Hilado vs. S. J. Assad," I find that the basic facts which brought about the controversy between you and the defendant therein are as follows: (a) That you were the equitable owner of the property described in the complaint, as the same was purchased and/or built with funds exclusively belonging to you, that is to say, the houses and lot pertained to your paraphernal estate; (b) That on May 3, 1943, the legal title to the property was with your husband, Mr. Serafin P. Hilado; and (c) That the property was sold by Mr. Hilado without your knowledge on the aforesaid date of May 3, 1943. Upon the foregoing facts, I am of the opinion that your action against Mr. Assad will not ordinarily prosper. Mr. Assad had the right to presume that your husband had the legal right to dispose of the property as the transfer certificate of title was in his name. Moreover, the price of P110,000 in Japanese military notes, as of May 3, 1943, does not quite strike me as so grossly inadequate as to warrant the annulment of the sale. I believe, lastly, that the transaction cannot be avoided merely because it was made during the Japanese occupation, nor on the simple allegation that the real purchaser was not a citizen of the Philippines. On his last point, furthermore, I expect that you will have great difficulty in proving that the real purchaser was other than Mr. Assad, considering that death has already sealed your husband's lips and he cannot now testify as to the circumstances of the sale. For the foregoing reasons, I regret to advise you that I cannot appear in the proceedings in your behalf. The records of the case you loaned to me are herewith returned. Yours very truly, (Sgd.) VICENTE J. FRANCISCO VJF/Rag. In his answer to plaintiff's attorneys' complaint, Attorney Francisco alleged that about May, 1945, a real estate broker came to his office in connection with the legal separation of a woman who had been deserted by her husband, and also told him (Francisco) that there was a pending suit brought by Mrs. Hilado against a certain Syrian to annul the sale of a real estate which the deceased Serafin Hilado had made to

BLANDINA GAMBOA HILADO, petitioner, vs. JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD and SELIM JACOB ASSAD, respondents. Delgado, Dizon and Flores for petitioner. Vicente J. Francisco for respondents. TUASON, J.: It appears that on April 23, 1945, Blandina Gamboa Hilado brought an action against Selim Jacob Assad to annul the sale of several houses and lot executed during the Japanese occupation by Mrs. Hilado's now deceased husband. On May 14, Attorneys Ohnick, Velilla and Balonkita filed an answer on behalf of the defendant; and on June 15, Attorneys Delgado, Dizon, Flores and Rodrigo registered their appearance as counsel for the plaintiff. On October 5, these attorneys filed an amended complaint by including Jacob Assad as party defendant. On January 28, 1946, Attorney Francisco entered his appearance as attorney of record for the defendant in substitution for Attorney Ohnick, Velilla and Balonkita who had withdrawn from the case. On May 29, Attorney Dizon, in the name of his firm, wrote Attorney Francisco urging him to discontinue representing the defendants on the ground that their client had consulted with him about her case, on which occasion, it was alleged, "she turned over the papers" to Attorney Francisco, and the latter sent her a written opinion. Not receiving any answer to this suggestion, Attorney Delgado, Dizon, Flores and Rodrigo on June 3, 1946, filed a formal motion with the court, wherein the case was and is pending, to disqualify Attorney Francisco. Attorney Francisco's letter to plaintiff, mentioned above and identified as Exhibit A, is in full as follows:

90

the Syrian during the Japanese occupation; that this woman asked him if he was willing to accept the case if the Syrian should give it to him; that he told the woman that the sales of real property during the Japanese regime were valid even though it was paid for in Japanese military notes; that this being his opinion, he told his visitor he would have no objection to defending the Syrian; That one month afterwards, Mrs. Hilado came to see him about a suit she had instituted against a certain Syrian to annul the conveyance of a real estate which her husband had made; that according to her the case was in the hands of Attorneys Delgado and Dizon, but she wanted to take it away from them; that as he had known the plaintiff's deceased husband he did not hesitate to tell her frankly that hers was a lost case for the same reason he had told the broker; that Mrs. Hilado retorted that the basis of her action was not that the money paid her husband was Japanese military notes, but that the premises were her private and exclusive property; that she requested him to read the complaint to be convinced that this was the theory of her suit; that he then asked Mrs. Hilado if there was a Torrens title to the property and she answered yes, in the name of her husband; that he told Mrs. Hilado that if the property was registered in her husband's favor, her case would not prosper either; That some days afterward, upon arrival at his law office on Estrada street, he was informed by Attorney Federico Agrava, his assistant, that Mrs. Hilado had dropped in looking for him and that when he, Agrava, learned that Mrs. Hilado's visit concerned legal matters he attended to her and requested her to leave the "expediente" which she was carrying, and she did; that he told Attorney Agrava that the firm should not handle Mrs. Hilado's case and he should return the papers, calling Agrava's attention to what he (Francisco) already had said to Mrs. Hilado; That several days later, the stenographer in his law office, Teofilo Ragodon, showed him a letter which had been dictated in English by Mr. Agrava, returning the "expedients" to Mrs. Hilado; that Ragodon told him (Attorney Francisco) upon Attorney Agrava's request that Agrava thought it more proper to explain to Mrs. Hilado the reasons why her case was rejected; that he forthwith signed the letter without reading it and without keeping it for a minute in his possession; that he never saw Mrs. Hilado since their last meeting until she talked to him at the Manila Hotel about a proposed extrajudicial settlement of the case; That in January, 1946, Assad was in his office to request him to handle his case stating that his American lawyer had gone to the States and left the case in the hands of other attorneys; that he accepted the retainer and on January 28, 1946, entered his appearance. Attorney Francisco filed an affidavit of stenographer Ragodon in corroboration of his answer. The judge trying the case, Honorable Jose Gutierrez David, later promoted to the Court of Appeals, dismissed the complaint. His Honor believed that no information other than that already alleged in plaintiff's complaint in the main cause was conveyed to Attorney Francisco, and concluded that the intercourse between the plaintiff and the respondent did not attain the point of creating the relation of attorney and client. Stripped of disputed details and collateral matters, this much is undoubted: That Attorney Francisco's law firm mailed to the plaintiff a written opinion over his signature on the merits of her case; that this opinion was reached on the basis of papers she had submitted at his office; that Mrs. Hilado's purpose in submitting those papers was to secure Attorney Francisco's professional services. Granting the facts to be no more than these, we agree with petitioner's counsel that the

relation of attorney and client between Attorney Francisco and Mrs. Hilado ensued. The following rules accord with the ethics of the legal profession and meet with our approval: In order to constitute the relation (of attorney and client) a professional one and not merely one of principal and agent, the attorneys must be employed either to give advice upon a legal point, to prosecute or defend an action in court of justice, or to prepare and draft, in legal form such papers as deeds, bills, contracts and the like. (Atkinson vs. Howlett, 11 Ky. Law Rep. (abstract), 364; cited in Vol. 88, A. L. R., p. 6.) To constitute professional employment it is not essential that the client should have employed the attorney professionally on any previous occasion. . . . It is not necessary that any retainer should have been paid, promised, or charged for; neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had. If a person, in respect to his business affairs or troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established. . . . (5 Jones Commentaries on Evidence, pp. 4118-4119.) An attorney is employed-that is, he is engaged in his professional capacity as a lawyer or counselorwhen he is listening to his client's preliminary statement of his case, or when he is giving advice thereon, just as truly as when he is drawing his client's pleadings, or advocating his client's cause in open court. (Denver Tramway Co. vs. Owens, 20 Colo., 107; 36 P., 848.) Formality is not an essential element of the employment of an attorney. The contract may be express or implied and it is sufficient that the advice and assistance of the attorney is sought and received, in matters pertinent to his profession. An acceptance of the relation is implied on the part of the attorney from his acting in behalf of his client in pursuance of a request by the latter. (7 C. J. S., 848849; see Hirach Bros. and Co. vs. R. E. Kennington Co., 88 A. L. R., 1.) Section 26 (e), Rule 123 of the Rules of Court provides that "an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment;" and section 19 (e) of Rule 127 imposes upon an attorney the duty "to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client." There is no law or provision in the Rules of Court prohibiting attorneys in express terms from acting on behalf of both parties to a controversy whose interests are opposed to each other, but such prohibition is necessarily implied in the injunctions above quoted. (In re De la Rosa, 27 Phil., 258.) In fact the prohibition derives validity from sources higher than written laws and rules. As has been aptly said in In re Merron, 22 N. M., 252, L.R.A., 1917B, 378, "information so received is sacred to the employment to which it pertains," and "to permit it to be used in the interest of another, or, worse still, in the interest of the adverse party, is to strike at the element of confidence which lies at the basis of, and affords the essential security in, the relation of attorney and client." That only copies of pleadings already filed in court were furnished to Attorney Agrava and that, this being so, no

91

secret communication was transmitted to him by the plaintiff, would not vary the situation even if we should discard Mrs. Hilado's statement that other papers, personal and private in character, were turned in by her. Precedents are at hand to support the doctrine that the mere relation of attorney and client ought to preclude the attorney from accepting the opposite party's retainer in the same litigation regardless of what information was received by him from his first client. The principle which forbids an attorney who has been engaged to represent a client from thereafter appearing on behalf of the client's opponent applies equally even though during the continuance of the employment nothing of a confidential nature was revealed to the attorney by the client. (Christian vs. Waialua Agricultural Co., 30 Hawaii, 553, Footnote 7, C. J. S., 828.) Where it appeared that an attorney, representing one party in litigation, had formerly represented the adverse party with respect to the same matter involved in the litigation, the court need not inquire as to how much knowledge the attorney acquired from his former during that relationship, before refusing to permit the attorney to represent the adverse party. (Brown vs. Miller, 52 App. D. C. 330; 286, F. 994.) In order that a court may prevent an attorney from appearing against a former client, it is unnecessary that the ascertain in detail the extent to which the former client's affairs might have a bearing on the matters involved in the subsequent litigation on the attorney's knowledge thereof. (Boyd vs. Second Judicial Dist. Court, 274 P., 7; 51 Nev., 264.) This rule has been so strictly that it has been held an attorney, on terminating his employment, cannot thereafter act as counsel against his client in the same general matter, even though, while acting for his former client, he acquired no knowledge which could operate to his client's disadvantage in the subsequent adverse employment. (Pierce vs. Palmer [1910], 31 R. I., 432; 77 Atl., 201, Ann. Cas., 1912S, 181.) Communications between attorney and client are, in a great number of litigations, a complicated affair, consisting of entangled relevant and irrelevant, secret and well known facts. In the complexity of what is said in the course of the dealings between an attorney and a client, inquiry of the nature suggested would lead to the revelation, in advance of the trial, of other matters that might only further prejudice the complainant's cause. And the theory would be productive of other un salutary results. To make the passing of confidential communication a condition precedent; i.e., to make the employment conditioned on the scope and character of the knowledge acquired by an attorney in determining his right to change sides, would not enhance the freedom of litigants, which is to be sedulously fostered, to consult with lawyers upon what they believe are their rights in litigation. The condition would of necessity call for an investigation of what information the attorney has received and in what way it is or it is not in conflict with his new position. Litigants would in consequence be wary in going to an attorney, lest by an unfortunate turn of the proceedings, if an investigation be held, the court should accept the attorney's inaccurate version of the facts that came to him. "Now the abstinence from seeking legal advice in a good cause is by hypothesis an evil which is fatal to the administration of justice." (John H. Wigmore's Evidence, 1923, Section 2285, 2290, 2291.)

Hence the necessity of setting down the existence of the bare relationship of attorney and client as the yardstick for testing incompatibility of interests. This stern rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to protect the honest lawyer from unfounded suspicion of unprofessional practice. (Strong vs. Int. Bldg., etc.; Ass'n, 183 Ill., 97; 47 L.R.A., 792.) It is founded on principles of public policy, on good taste. As has been said in another case, the question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like Caesar's wife, not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and doubledealing. Only thus can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice. So without impugning respondent's good faith, we nevertheless can not sanction his taking up the cause of the adversary of the party who had sought and obtained legal advice from his firm; this, not necessarily to prevent any injustice to the plaintiff but to keep above reproach the honor and integrity of the courts and of the bar. Without condemning the respondents conduct as dishonest, corrupt, or fraudulent, we do believe that upon the admitted facts it is highly in expedient. It had the tendency to bring the profession, of which he is a distinguished member, "into public disrepute and suspicion and undermine the integrity of justice." There is in legal practice what called "retaining fee," the purpose of which stems from the realization that the attorney is disabled from acting as counsel for the other side after he has given professional advice to the opposite party, even if he should decline to perform the contemplated services on behalf of the latter. It is to prevent undue hardship on the attorney resulting from the rigid observance of the rule that a separate and independent fee for consultation and advice was conceived and authorized. "A retaining fee is a preliminary fee given to an attorney or counsel to insure and secure his future services, and induce him to act for the client. It is intended to remunerate counsel for being deprived, by being retained by one party, of the opportunity of rendering services to the other and of receiving pay from him, and the payment of such fee, in the absence of an express understanding to the contrary, is neither made nor received in payment of the services contemplated; its payment has no relation to the obligation of the client to pay his attorney for the services which he has retained him to perform." (7 C.J.S., 1019.) The defense that Attorney Agrava wrote the letter Exhibit A and that Attorney Francisco did not take the trouble of reading it, would not take the case out of the interdiction. If this letter was written under the circumstances explained by Attorney Francisco and he was unaware of its contents, the fact remains that his firm did give Mrs. Hilado a formal professional advice from which, as heretofore demonstrated, emerged the relation of attorney and client. This letter binds and estop him in the same manner and to the same degree as if he personally had written it. An information obtained from a client by a member or assistant of a law firm is information imparted to the firm. (6 C. J., 628; 7 C. J. S., 986.) This is not a mere fiction or an arbitrary rule; for such member or assistant, as in our case, not only acts in the name and interest of the firm, but his information, by the nature of his connection with the firm is available to his associates or employers. The rule is all the more to be adhered to where, as in the present instance, the opinion was actually signed by the head of the firm and carries his initials intended to convey the impression that it was dictated by him personally. No progress could be hoped for in "the public policy that the client in consulting his legal adviser ought to be free from apprehension of disclosure of his confidence," if

92

the prohibition were not extended to the attorney's partners, employers or assistants. The fact that petitioner did not object until after four months had passed from the date Attorney Francisco first appeared for the defendants does not operate as a waiver of her right to ask for his disqualification. In one case, objection to the appearance of an attorney was allowed even on appeal as a ground for reversal of the judgment. In that case, in which throughout the conduct of the cause in the court below the attorney had been suffered so to act without objection, the court said: "We are all of the one mind, that the right of the appellee to make his objection has not lapsed by reason of failure to make it sooner; that professional confidence once reposed can never be divested by expiration of professional employment." (Nickels vs. Griffin, 1 Wash. Terr., 374, 321 A. L. R. 1316.) The complaint that petitioner's remedy is by appeal and not by certiorari deserves scant attention. The courts have summary jurisdiction to protect the rights of the parties and the public from any conduct of attorneys prejudicial to the administration of the justice. The summary jurisdiction of the courts over attorneys is not confined to requiring them to pay over money collected by them but embraces authority to compel them to do whatever specific acts may be incumbent upon them in their capacity of attorneys to perform. The courts from the general principles of equity and policy, will always look into the dealings between attorneys and clients and guard the latter from any undue consequences resulting from a situation in which they may stand unequal. The courts acts on the same principles whether the undertaking is to appear, or, for that matter, not to appear, to answer declaration, etc. (6 C.J., 718 C.J.S., 1005.) This summary remedy against attorneys flows from the facts that they are officers of the court where they practice, forming a part of the machinery of the law for the administration of justice and as such subject to the disciplinary authority of the courts and to its orders and directions with respect to their relations to the court as well as to their clients. (Charest vs. Bishop, 137 Minn., 102; 162, N.W., 1062, Note 26, 7 C. J. S., 1007.) Attorney stand on the same footing as sheriffs and other court officers in respect of matters just mentioned. We conclude therefore that the motion for disqualification should be allowed. It is so ordered, without costs. G.R. No. 80718 January 29, 1988 FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners, vs. COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents. RESOLUTION

At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it. The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution of October 27, 1987. This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit: Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. (at p. 212) Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal. Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the prospective application of said rule, and explained the operation of the grace period, to wit: In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not strictly enforceable. Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the grace period, which

CORTES, J.: This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since the decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for having been filed out of time.

93

expired on June 30, 1986, and may still be allowed. This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].] In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage of the grace period. Considering the length of time from the expiration of the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary period. Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals. This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear chance," which has been applied to vehicular accidents, is inapplicable to this case. WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit. A.C. No. 853 June 22, 1940

redemption could be done, the money was returned by the sheriff to one Alberto Suguitan, then counsel for Marcelino Macoco. Suguitan used the money according to himself and failed to turn it over to Macoco; whereupon, the latter entrusted its collection to respondent herein, Esteban B. Diaz. It appears that Diaz succeeded in collecting P300 from Suguitan, but he also misappropriated this amount. Respondent admitted the misappropriation. He averred, however, that he had an agreement with Macoco for the payment of the money by him misappropriated; that when this agreement failed, he again entered into a similar arrangement with Hermenegildo Galapia, Lope Ragragola and Pedro Ragragola, who, as he attempted to prove, were the persons to whom the sum of P300 was really due, Macoco being merely a trustee thereof; and that in pursuance of this arrangement whereby he would pay the sum of P300, deducting therefrom 20 per cent for his attorney's fees, he had already made partial payments to said persons. Macoco, however, and Lope Ragragola denied this agreement. Whatever might have been the agreement and with whomsoever respondent might have entered it into, the undeniable fact remains that he misappropriated the money in breach of trust. This makes him unfit for the office of an attorney-at-law. And his being a deputy fiscal and not law practitioner at the time of the misappropriation, far from mitigating his guilt, aggravates it. Want of moral integrity is to be more severely condemned in a lawyer who holds a responsible public office. Wherefore, respondent Esteban B. Diaz is hereby disbarred from the practice of law, and is hereby ordered to surrender his certificate to the clerk of court within five days from notice. This Solicitor General is hereby ordered to investigate the conduct of Attorney Alberto Suguitan and file later the corresponding report. G.R. No. 130068 October 1, 1998 FAR EASTERN SHIPPING COMPANY, petitioner, vs. COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY, respondents. G.R. No. 130150 October, 1998 MANILA PILOTS ASSOCIATION, petitioner, vs. PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING COMPANY, respondents.

MARCELINO MACOCO, complainant, vs. ESTEBAN B. DIAZ, respondent. Esteban B. Diaz in his own behalf. Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for complainant. MORAN, J.: A complaint for malpractice filed by one Marcelino Macoco against Esteban B. Diaz, attorney-at-law, with license to practice in Philippine courts. In order to redeem a property belonging to his wife's father, which had been levied upon sold at public auction, complainant Marcelino Macoco deposited with the provincial sheriff of Ilocos Norte the sum of P380. As no

REGALADO, J.: These consolidated petitions for review on certiorari seek in unison to annul and set aside the decision 1 of respondent Court of Appeals of November 15, 1996 and its resolution 2 dated July 31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and Manila Pilots' Association, Defendants-Appellants," which affirmed with modification the judgment of the trial court holding the defendants-appellants therein solidarily liable for damages in favor of herein private respondent. There is no dispute about the facts as found by the appellate court, thus

94

. . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned and operated by the Far Eastern Shipping Company (FESC for brevity's sake), arrived at the Port of Manila from Vancouver, British Columbia at about 7:00 o'clock in the morning. The vessel was assigned Berth 4 of the Manila International Port, as its berthing space. Captain Roberto Abellana was tasked by the Philippine Port Authority to supervise the berthing of the vessel. Appellant Senen Gavino was assigned by the Appellant Manila Pilots' Association (MPA for brevity's sake) to conduct docking maneuvers for the safe berthing of the vessel to Berth No. 4. Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge, with the master of the vessel, Victor Kavankov, beside him. After a briefing of Gavino by Kavankov of the particulars of the vessel and its cargo, the vessel lifted anchor from the quarantine anchorage and proceeded to the Manila International Port. The sea was calm and the wind was ideal for docking maneuvers. When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile from the pier, Gavino ordered the engine stopped. When the vessel was already about 2,000 feet from the pier, Gavino ordered the anchor dropped. Kavankov relayed the orders to the crew of the vessel on the bow. The left anchor, with two (2) shackles, were dropped. However, the anchor did not take hold as expected. The speed of the vessel did not slacken. A commotion ensued between the crew members. A brief conference ensued between Kavankov and the crew members. When Gavino inquired what was all the commotion about, Kavankov assured Gavino that there was nothing to it. After Gavino noticed that the anchor did not take hold, he ordered the engines half-astern. Abellana, who was then on the pier apron, noticed that the vessel was approaching the pier fast. Kavankov likewise noticed that the anchor did not take hold. Gavino thereafter gave the "full-astern" code. Before the right anchor and additional shackles could be dropped, the bow of the vessel rammed into the apron of the pier causing considerable damage to the pier. The vessel sustained damage too, (Exhibit "7-Far Eastern Shipping). Kavankov filed his sea protest (Exhibit "1-Vessel"). Gavino submitted his report to the Chief Pilot (Exhibit "1-Pilot") who referred the report to the Philippine Ports Authority (Exhibit 2-Pilot"). Abellana likewise submitted his report of the incident (Exhibit "B"). Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the rehabilitation of the damaged pier, the same cost the Philippine Ports Authority the amount of P1,126,132.25 (Exhibits "D" and "E"). 3

On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor General, filed before the Regional Trial Court of Manila, Branch 39, a complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila Pilots' Association, docketed as Civil Case No. 83-14958, 4 praying that the defendants therein be held jointly and severally liable to pay the plaintiff actual and exemplary damages plus costs of suit. In a decision dated August 1, 1985, the trial court ordered the defendants therein jointly and severally to pay the PPA the amount of P1,053,300.00 representing actual damages and the costs of suit. 5 The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of a commercial vessel, under compulsory pilotage, solely liable for the damage caused by the vessel to the pier, at the port of destination, for his negligence? and (2) Would the owner of the vessel be liable likewise if the damage is caused by the concurrent negligence of the master of the vessel and the pilot under a compulsory pilotage? As stated at the outset, respondent appellate court affirmed the findings of the court a quo except that if found no employer-employee relationship existing between herein private respondents Manila Pilots' Association (MPA, for short) and Capt. Gavino. 6 This being so, it ruled instead that the liability of MPA is anchored, not on Article 2180 of the Civil Code, but on the provisions of Customs Administrative Order No. 15-65, 7 and accordingly modified said decision of the trial court by holding MPA, along with its co-defendants therein, still solidarily liable to PPA but entitled MPA to reimbursement from Capt. Gavino for such amount of the adjudged pecuniary liability in excess of the amount equivalent to seventy-five percent (75%) of its prescribed reserve fund. 8 Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the Court of Appeals and both of them elevated their respective plaints to us via separate petitions for review on certiorari. In G. R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed that the Court of Appeals seriously erred: 1. in not holding Senen C. Gavino and the Manila Pilots' Association as the parties solely responsible for the resulting damages sustained by the pier deliberately ignoring the established jurisprudence on the matter; 2. in holding that the master had not exercised the required diligence demanded from him by the circumstances at the time the incident happened; 3. in affirming the amount of damages sustained by the respondent Philippine Ports Authority despite a strong and convincing evidence that the amount is clearly exorbitant and unreasonable; 4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer; and 5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots' Association in the event that it be held liable. 9

95

Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the incident, it was the compulsory pilot, Capt. Gavino, who was in command and had complete control in the navigation and docking of the vessel. It is the pilot who supersedes the master for the time being in the command and navigation of a ship and his orders must be obeyed in all respects connected with her navigation. Consequently, he was solely responsible for the damage caused upon the pier apron, and not the owners of the vessel. It claims that the master of the boat did not commit any act of negligence when he failed to countermand or overrule the orders of the pilot because he did not see any justifiable reason to do so. In other words, the master cannot be faulted for relying absolutely on the competence of the compulsory pilot. If the master does not observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot. 10 Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent court on the solidary liability of FESC, MPA and Capt. Gavino, stresses the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov, * shipmaster of MV Pavlodar, as the basis of their solidary liability for damages sustained by PPA. It posits that the vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the bridge of the vessel, as the former took over the helm of MV Pavlodar when it rammed and damaged the apron of the pier of Berth No. 4 of the Manila International Port. Their concurrent negligence was the immediate and proximate cause of the collision between the vessel and the pier Capt. Gavino, for his negligence in the conduct of docking maneuvers for the safe berthing of the vessel; and Capt. Kabankov, for failing to countermand the orders of the harbor pilot and to take over and steer the vessel himself in the face of imminent danger, as well as for merely relying on Capt. Gavino during the berthing procedure. 11 On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later transferred to the Third Division. MPA, now as petitioner in this case, avers that respondent court's errors consisted in disregarding and misinterpreting Customs Administrative Order No. 15-65 which limits the liability of MPA. Said pilots' association asseverates that it should not be held solidarily liable with Capt. Gavino who, as held by respondent court is only a member, not an employee, thereof. There being no employer-employee relationship, neither can MPA be held liable for any vicarious liability for the respective exercise of profession by its members nor be considered a joint tortfeasor as to be held jointly and severally liable. 12 It further argues that there was erroneous reliance on Customs Administrative Order No. 15-65 and the constitution and bylaws of MPA, instead of the provisions of the Civil Code on damages which, being a substantive law, is higher in category than the aforesaid constitution and by-laws of a professional organization or an administrative order which bears no provision classifying the nature of the liability of MPA for the negligence its member pilots. 13 As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage services since July 28, 1994 and has ceased to be a member of petitioner pilots' association. He is not joined as a petitioner in this case since his whereabouts are unknown. 14 FESC's comment thereto relied on the competence of the Court of Appeals in construing provisions of law or administrative orders as bases for ascertaining the liability of MPA, and expressed full accord with the appellate court's holding of solidary liability among itself, MPA and Capt. Gavino. It further avers that the disputed provisions of Customs Administrative Order No. 15-65 clearly established MPA's solidary liability. 15

On the other hand, public respondent PPA, likewise through representations by the Solicitor General, assumes the same supportive stance it took in G.R. No. 130068 in declaring its total accord with the ruling of the Court of Appeals that MPA is solidarily liable with Capt. Gavino and FESC for damages, and in its application to the fullest extent of the provisions of Customs Administrative Order No. 15-65 in relation to MPA's constitution and by-laws which spell out the conditions of and govern their respective liabilities. These provisions are clear and unambiguous as regards MPA's liability without need for interpretation or construction. Although Customs Administrative Order No. 15-65 is a mere regulation issued by an administrative agency pursuant to delegated legislative authority to fix details to implement the law, it is legally binding and has the same statutory force as any valid statute. 16 Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated with G.R. No. 130068. 18 Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that the conduct of the respective counsel for FESC and PPA leaves much to be desired, to the displeasure and disappointment of this Court. Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 28-91 which provided for what has come to be known as the certification against forum shopping as an additional requisite for petitions filed with the Supreme Court and the Court of Appeals, aside from the other requirements contained in pertinent provisions of the Rules of Court therefor, with the end in view of preventing the filing of multiple complaints involving the same issues in the Supreme Court, Court of Appeals or different divisions thereof or any other tribunal or agency. More particularly, the second paragraph of Section 2, Rule 42 provides: xxx xxx xxx The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. (Emphasis ours.) For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically requires that such petition shall contain a sworn certification against forum shopping as provided in the last paragraph of Section 2, Rule 42. The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty. Herbert A. Tria, is the counsel of record for FESC in both G.R. No. 130068 and G.R. No. 130150. G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing by FESC through

96

counsel on August 22, 1997 of a verified motion for extension of time to file its petition for thirty (30) days from August 28, 1997 or until September 27, 1997. 20 Said motion contained the following certification against forum shopping 21 signed by Atty. Herbert A. Tria as affiant: CERTIFICATION AGAINST FORUM SHOPPING I/we hereby certify that I/we have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that if I/we should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I/we undertake to report that fact within five (5) days therefrom to this Honorable Court. This motion having been granted, FESC subsequently filed its petition on September 26, 1997, this time bearing a "verification and certification against forum-shopping" executed by one Teodoro P. Lopez on September 24, 1997, 22 to wit: VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42 of the Revised Rules of Civil Procedure I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state: 1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent of petitioner in this case. 2. That I have caused the preparation of this Petition for Review on Certiorari. 3. That I have read the same and the allegations therein contained are true and correct based on the records of this case. 4. That I certify that petitioner has not commenced any other action or proceeding involving the same issues in the Supreme Court or Court of Appeals, or any other tribunal or agency, that to the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any other tribunal or agency, that if I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to report the fact within five (5)

days therefrom to this Honorable Court. (Italics supplied for emphasis.) Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending with the Third Division was duly filed on August 29, 1997 with a copy thereof furnished on the same date by registered mail to counsel for FESC. 23 Counsel of record for MPA. Atty. Jesus P. Amparo, in his verification accompanying said petition dutifully revealed to the Court that xxx xxx xxx 3. Petitioner has not commenced any other action or proceeding involving the same issues in this Honorable Court, the Court of Appeals or different Divisions thereof, or any other tribunal or agency, but to the best of his knowledge, there is an action or proceeding pending in this Honorable Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports Authority and Court of Appeals with a Motion for Extension of time to file Petition For Review by Certiorari filed sometime on August 18, 1987. If undersigned counsel will come to know of any other pending action or claim filed or pending he undertakes to report such fact within five (5) days to this Honorable Court. 24 (Emphasis supplied.) Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29, 1997 and taking judicial notice of the average period of time it takes local mail to reach its destination, by reasonable estimation it would be fair to conclude that when FESC filed its petition in G.R. No. 130068 on September 26, 1997, it would already have received a copy of the former and would then have knowledge of the pendency of the other petition initially filed with the First Division. It was therefore incumbent upon FESC to inform the Court of that fact through its certification against forum shopping. For failure to make such disclosure, it would appear that the aforequoted certification accompanying the petition in G.R. No. 130068 is defective and could have been a ground for dismissal thereof. Even assuming that FESC had not yet received its copy of MPA's petition at the time it filed its own petition and executed said certification, its signatory did state "that if I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or any other tribunal or agency, I undertake to report the fact within five (5) days therefrom to this Honorable Court." 25 Scouring the records page by page in this case, we find that no manifestation concordant with such undertaking was then or at any other time thereafter ever filed by FESC nor was there any attempt to bring such matter to the attention of the Court. Moreover, it cannot feign non-knowledge of the existence of such other petition because FESC itself filed the motion for consolidation in G.R. No. 130150 of these two cases on April 24, 1998. It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays an unprofessional tendency of taking the Rules for granted, in this instance exemplified by its pro forma compliance therewith but apparently without full comprehension of and with less than faithful commitment to its undertakings to this Court in the interest of just, speedy and orderly administration of court proceedings. As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court. 26 He is an officer of the

97

court exercising a privilege which is indispensable in the administration of justice. 27 Candidness, especially towards the courts, is essential for the expeditious administration of justice. Courts are entitled to expect only complete honesty from lawyers appearing and pleading before them. 28 Candor in all dealings is the very essence of honorable membership in the legal profession. 29 More specifically, a lawyer is obliged to observe the rules of procedure and not to misuse them to defeat the ends of justice. 30 It behooves a lawyer, therefore, to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. 31 Being an officer of the court, a lawyer has a responsibility in the proper administration of justice. Like the court itself, he is an instrument to advance its ends the speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice. 32 Sad to say, the members of said law firm sorely failed to observe their duties as responsible members of the Bar. Their actuations are indicative of their predisposition to take lightly the avowed duties of officers of the Court to promote respect for law and for legal processes. 33 We cannot allow this state of things to pass judicial muster. In view of the fact that at around the time these petitions were commenced, the 1997 Rules of Civil Procedure had just taken effect, the Court treated infractions of the new Rules then with relative liberality in evaluating full compliance therewith. Nevertheless, it would do well to remind all concerned that the penal provisions of Circular No. 28-91 which remain operative provides, inter alia: 3. Penalties. xxx xxx xxx (c) The submission of a false certification under Par. 2 of the Circular shall likewise constitute contempt of court, without prejudice to the filing of criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings. It must be stressed that the certification against forum shopping ordained under the Rules is to be executed by thepetitioner, and not by counsel. Obviously it is the petitioner, and not always the counsel whose professional services have been retained for a particular case, who is in the best position to know whether he or it actually filed or caused the filing of a petition in that case. Hence, a certification against forum shopping by counsel is a defective certification. It is clearly equivalent to non-compliance with the requirement under Section 2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid cause for dismissal of the petition. Hence, the initial certification appended to the motion for extension of time to file petition in G.R. No. 130068 executed in behalf of FESC by Atty. Tria is procedurally deficient. But considering that it was a superfluity at that stage of the proceeding, it being unnecessary to file such a certification with a mere motion for extension, we shall disregard such error. Besides, the certification subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect to a certain extent, despite the inaccuracies earlier pointed out. In the same vein, we shall consider the verification signed in behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as substantial compliance inasmuch as it served the

purpose of the Rules of informing the Court of the pendency of another action or proceeding involving the same issues. It bears stressing that procedural rules are instruments in the speedy and efficient administration of justice. They should be used to achieve such end and not to derail it. 34 Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor General at the time, the same legal team of the Office of the Solicitor General (OSG, for short) composed of Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, with the addition of Assistant Solicitor General Pio C. Guerrero very much later in the proceedings, represented PPA throughout the appellate proceedings in both G.R. No. 130068 and G.R. No. 130150 and was presumably fully acquainted with the facts and issues of the case, it took the OSG an inordinately and almost unreasonably long period of time to file its comment, thus unduly delaying the resolution of these cases. It took several changes of leadership in the OSG from Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez before the comment in behalf of PPA was finally filed. In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning that no further extensions shall be granted, and personal service on the Solicitor General himself of the resolution requiring the filing of such comment before the OSG indulged the Court with the long required comment on July 10, 1998. 35This, despite the fact that said office was required to file its comment way back on November 12, 1997. 36 A closer scrutiny of the records likewise indicates that petitoner FESC was not even furnished a copy of said comment as required by Section 5, Rule 42. Instead, a copy thereof was inadvertently furnished to MPA which, from the point of view of G.R. No. 130068, was a non-party. 37 The OSG fared slightly better in G.R. No. 130150 in that it took only six (6) extensions, or a total of 180 days, before the comment was finally filed. 38 And while it properly furnished petitioner MPA with a copy of its comment, it would have been more desirable and expedient in this case to have furnished its therein co-respondent FESC with a copy thereof, if only as a matter of professional courtesy. 39 This undeniably dilatory disinclination of the OSG to seasonably file required pleadings constitutes deplorable disservice to the tax-paying public and can only be categorized as censurable inefficiency on the part of the government law office. This is most certainly professionally unbecoming of the OSG. Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion for consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its familiarity with the background of the case and if only to make its job easier by having to prepare and file only one comment. It could not have been unaware of the pendency of one or the other petition because, being counsel for respondent in both cases, petitioner is required to furnish it with a copy of the petition under pain of dismissal of the petition for failure otherwise. 40 Besides, in G.R. 130068, it prefaces its discussions thus Incidentally, the Manila Pilots' Association (MPA), one of the defendantsappellants in the case before the respondent Court of Appeals, has taken a separate appeal from the said decision to this Honorable Court, which was docketed as G.R. No. 130150 and entitled "Manila Pilots' Association, Petitioner, versus Philippine Ports Authority and Far Eastern Shipping Co., Respondents." 41

98

Similarly, in G.R. No. 130150, it states Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the said decision to this Honorable Court, docketed as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs. Court of Appeals and Philippine Ports Authority." 42 We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of its cases and an almost reflexive propensity to move for countless extensions, as if to test the patience of the Court, before favoring it with the timely submission of required pleadings. It must be emphasized that the Court can resolve cases only as fast as the respective parties in a case file the necessary pleadings. The OSG, by needlessly extending the pendency of these cases through its numerous motions for extension, came very close to exhausting this Court's forbearance and has regrettably fallen short of its duties as the People's Tribune. The OSG is reminded that just like other members of the Bar, the canons under the Code of Professional Responsibility apply with equal force on lawyers in government service in the discharge of their official tasks. 43These ethical duties are rendered even more exacting as to them because, as government counsel, they have the added duty to abide by the policy of the State to promote a high standard of ethics in public service. 44Furthermore, it is incumbent upon the OSG, as part of the government bureaucracy, to perform and discharge its duties with the highest degree of professionalism, intelligence and skill 45 and to extend prompt, courteous and adequate service to the public. 46 Now, on the merits of the case. After a judicious examination of the records of this case, the pleadings filed, and the evidence presented by the parties in the two petitions, we find no cogent reason to reverse and set aside the questioned decision. While not entirely a case of first impression, we shall discuss the issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the matters raised in both petitions beg for validation and updating of well-worn maritime jurisprudence. Thereby, we shall write finis to the endless finger-pointing in this shipping mishap which has been stretched beyond the limits of judicial tolerance. The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage pursuant to Section 8, Article III of Philippine Ports Authority Administrative Order No. 03-85, 47 which provides that: Sec. 8. Compulsor Pilotage Service. For entering a harbor and anchoring thereat, or passing through rivers or straits within a pilotage district, as well as docking and undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged in coastwise and foreign trade shall be under compulsory pilotage. . . . In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot and the master have been specified by the same regulation in this wise: Sec. 11. Control of vessels and liability for damage. On compulsory pilotage grounds, the Harbor Pilot providing the service to a vessel shall be responsible for the damage caused to a vessel or to life and property at ports due to his

negligence or fault. He can only be absolved from liability if the accident is caused by force majeure or natural calamities provided he has exercised prudence and extra diligence to prevent or minimize damage. The Master shall retain overall command of the vessel even on pilotage grounds whereby he can countermand or overrule the order or command of the Harbor Pilot on beard. In such event, any damage caused to a vessel or to life and property at ports by reason of the fault or negligence of the Master shall be the responsibility and liability of the registered owner of the vessel concerned without prejudice to recourse against said Master. Such liability of the owner or Master of the vessel or its pilots shall be determined by competent authority in appropriate proceedings in the light of the facts and circumstances of each particular case. Sec. 32. Duties and responsibilities of the Pilot or Pilots' Association. The duties and responsibilities of the Harbor Pilot shall be as follows: xxx xxx xxx f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that his responsibility shall cease at the moment the Master neglects or refuses to carry out hisorder. Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in Chapter I thereof for the responsibilities of pilots: Par. XXXIX. A Pilot shall be held responsible for the direction of a vessel from the time he assumes control thereof until he leaves it anchored free from shoal: Provided, That his responsibility shall cease at the moment the master neglects or refuses to carry out his instructions. xxx xxx xxx Par. XLIV. Pilots shall properly and safely secure or anchor vessels under their control when requested to do so by the master of such vessels. I. G.R. No. 130068 Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt. Gavino solely responsible for the damages cause to the pier. It avers that since the vessel was under compulsory pilotage at the time with Capt. Gavino in command and having exclusive control of the vessel during the docking maneuvers, then the latter should be responsible for damages caused to the pier. 48 It likewise holds the appellate court in error for holding that the master of the ship, Capt. Kabankov, did not exercise the required diligence demanded by the circumstances. 49

99

We start our discussion of the successive issues bearing in mind the evidentiary rule in American jurisprudence that there is a presumption of fault against a moving vessel that strikes a stationary object such as a dock or navigational aid. In admiralty, this presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter. The moving vessel must show that it was without fault or that the collision was occasioned by the fault of the stationary object or was the result of inevitable accident. It has been held that such vessel must exhaust every reasonable possibility which the circumstances admit and show that in each, they did all that reasonable care required. 50 In the absence of sufficient proof in rebuttal, the presumption of fault attaches to a moving vessel which collides with a fixed object and makes a prima facie case of fault against the vessel. 51 Logic and experience support this presumption: The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in the ordinary course of things unless the vessel has been mismanaged in some way. It is nor sufficient for the respondent to produce witnesses who testify that as soon as the danger became apparent everything possible was done to avoid an accident. The question remains, How then did the collision occur? The answer must be either that, in spite of the testimony of the witnesses, what was done was too little or too late or, if not, then the vessel was at fault for being in a position in which an unavoidable collision would occur. 52 The task, therefore, in these cases is to pinpoint who was negligent the master of the ship, the harbor pilot or both. A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports, or in certain waters. In a broad sense, the term "pilot" includes both (1) those whose duty it is to guide vessels into or out of ports, or in particular waters and (2) those entrusted with the navigation of vessels on the high seas. 53However, the term "pilot" is more generally understood as a person taken on board at a particular place for the purpose of conducting a ship through a river, road or channel, or from a port. 54 Under English and American authorities, generally speaking, the pilot supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation. He becomes the master pro hac vice and should give all directions as to speed, course, stopping and reversing anchoring, towing and the like. And when a licensed pilot is employed in a place where pilotage is compulsory, it is his duty to insist on having effective control of the vessel, or to decline to act as pilot. Under certain systems of foreign law, the pilot does not take entire charge of the vessel, but is deemed merely the adviser of the master, who retains command and control of the navigation even in localities where pilotage is compulsory. 55 It is quite common for states and localities to provide for compulsory pilotage, and safety laws have been enacted requiring vessels approaching their ports, with certain exceptions, to take on board pilots duly licensed under local law. The purpose of these laws is to create a body of seamen thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart, and thus protect life and property from the dangers of navigation. 56 In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65 prescribes the

rules for compulsory pilotage in the covered pilotage districts, among which is the Manila Pilotage District, viz. PARAGRAPH I. Pilotage for entering a harbor and anchoring thereat, as well as docking and undocking in any pier or shifting from one berth to another shall be compulsory, except Government vessels and vessels of foreign governments entitled to courtesy, and other vessels engaged solely in river or harbor work, or in a daily ferry service between ports which shall be exempt from compulsory pilotage provisions of these regulations: provided, however, that compulsory pilotage shall not apply in pilotage districts whose optional pilotage is allowed under these regulations. Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila International Port. Upon assuming such office as compulsory pilot, Capt. Gavino is held to the universally accepted high standards of care and diligence required of a pilot, whereby he assumes to have skill and knowledge in respect to navigation in the particular waters over which his license extends superior to and more to be trusted than that of the master. 57A pilot 57 should have a thorough knowledge of general and local regulations and physical conditions affecting the vessel in his charge and the waters for which he is licensed, such as a particular harbor or river. He is not held to the highest possible degree of skill and care, but must have and exercise the ordinary skill and care demanded by the circumstances, and usually shown by an expert in his profession. Under extraordinary circumstancesm, a pilot must exercise extraordinary care. 58 In Atlee vs. The Northwesrern Union Packet Company. 59 Mr. Justice Miller spelled out in great detail the duties of a pilot: . . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography through which he steers his vessel. In the long course of a thousand miles in one of these rivers, he must be familiar with the appearance of the shore on each side of the river as he goes along. Its banks, towns, its landings, its houses and trees, are all landmarks by which he steers his vessel. The compass is of little use to him. He must know where the navigable channel is, in its relation to all these external objects, especially in the night. He must also be familiar with all dangers that are permanently located in the course of the river, as sand-bars, snags, sunken rocks or trees or abandoned vessels orbarges. All this he must know and remember and avoid. To do this, he must be constantly informed of the changes in the current of the river, of the sand-bars newly made,of logs or snags, or other objects newly presented, against which his vessel might be injured. xxx xxx xxx It may be said that this is exacting a very high order of ability in a pilot. But when we consider the value of the lives and property committed to their control, for in this they are absolute masters, the high

100

compensation they receive, the care which Congress has taken to secure by rigid and frequent examinations and renewal of licenses, this very class of skill, we do not think we fix the standard too high. Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such strict standard of care and diligence required of pilots in the performance of their duties. Witness this testimony of Capt. Gavino: Court: You have testified before that the reason why the vessel bumped the pier was because the anchor was not released immediately or as soon as you have given the order. Do you remember having srated that? A Yes, your Honor. Q And you gave this order to the captain of the vessel? A Yes, your Honor. Q By that testimony, you are leading the Court to understand that if that anchor was released immediately at the time you gave the order, the incident would not have happened. Is that correct? A Yes, sir, but actually it was only a presumption on my part because there was a commotion between the officers who are in charge of the dropping of the anchor and the captain. I could not understand their language, it was in Russian, so I presumed the anchor was not dropped on time. Q So, you are not sure whether it was really dropped on time or not? A I am not sure, your Honor. xxx xxx xxx Q You are not even sure what could have caused the incident. What factor could have caused the incident?

A Well, in this case now, because either the anchor was not dropped on time or the anchor did not hold, that was the cause of the incident, your Honor. 60 It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for the possibly injurious consequences his commands as pilot may have. Prudence required that he, as pilot, should have made sure that his directions were promptly and strictly followed. As correctly noted by the trial court Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot he should have seen to it that the order was carried out, and he could have done this in a number of ways, one of which was to inspect the bow of the vessel where the anchor mechanism was installed. Of course, Captain Gavino makes reference to a commotion among the crew members which supposedly caused the delay in the execution of the command. This account was reflected in the pilot's report prepared four hours later, but Capt. Kavankov, while not admitting whether or not such a commotion occurred, maintained that the command to drop anchor was followed "immediately and precisely." Hence, the Court cannot give much weight or consideration to this portion of Gavino's testimony." 61 An act may be negligent if it is done without the competence that a reasonable person in the position of the actor would recognize as necessary to prevent it from creating an unreasonable risk of harm to another. 62 Those who undertake any work calling for special skills are required not only to exercise reasonable care in what they do but also possess a standard minimum of special knowledge and ability. 63 Every man who offers his services to another, and is employed, assumes to exercise in the employment such skills he possesses, with a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offers his services he is understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his pretensions are unfounded he commits a species of fraud on every man who employs him in reliance on his public profession. 64 Furthermore, there is an obligation on all persons to take the care which, under ordinary circumstances of the case, a reasonable and prudent man would take, and the omission of that care constitutes negligence. 65Generally, the degree of care required is graduated according to the danger a person or property attendant upon the activity which the actor pursues or the instrumentality which he uses. The greater the danger the greater the degree of care required. What is ordinary under extraordinary of conditions is dictated by those conditions; extraordinary risk demands extraordinary care. Similarly, the more imminent the danger, the higher the degree of care. 66 We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino was indeed negligent in the performance of his duties:

101

xxx xxx xxx . . . As can be gleaned from the logbook, Gavino ordered the left anchor and two (2) shackles dropped at 8:30 o'clock in the morning. He ordered the engines of the vessel stopped at 8:31 o'clock. By then,Gavino must have realized that the anchor did not hit a hard object and was not clawed so as to reduce the momentum of the vessel. In point of fact, the vessel continued travelling towards the pier at the same speed. Gavino failed to react, At 8:32 o'clock, the two (2) tugboats began to push the stern part of the vessel from the port side bur the momentum of the vessel was not contained. Still, Gavino did not react. He did not even order the other anchor and two (2) more shackles dropped to arrest the momentum of the vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four (4) minutes, after the anchor was dropped that Gavino reacted. But his reaction was even (haphazard) because instead of arresting fully the momentum of the vessel with the help of the tugboats, Gavino ordered merely "half-astern". It took Gavino another minute to order a "full-astern". By then, it was too late. The vessel's momentum could no longer be arrested and, barely a minute thereafter, the bow of the vessel hit the apron of the pier. Patently, Gavino miscalculated. He failed to react and undertake adequate measures to arrest fully the momentum of the vessel after the anchor failed to claw to the seabed. When he reacted, the same was even (haphazard). Gavino failed to reckon the bulk of the vessel, its size and its cargo. He erroneously believed that only one (1) anchor would suffice and even when the anchor failed to claw into the seabed or against a hard object in the seabed, Gavino failed to order the other anchor dropped immediately. His claim that the anchor was dropped when the vessel was only 1,000 feet from the pier is but a belated attempt to extricate himself from the quagmire of his own insouciance and negligence. In sum, then, Appellants' claim that the incident was caused by "force majeure" is barren of factual basis. xxx xxx xxx The harbor pilots are especially trained for this job. In the Philippines, one may not be a harbor pilot unless he passed the required examination and training conducted then by the Bureau of Custom, under Customs Administrative Order No. 15-65, now under the Philippine Ports Authority under PPA Administrative Order 63-85, Paragraph XXXIX of the Customs Administrative Order No. 15-65 provides that "the pilot shall be held responsible for the direction of the vessel from the time he assumes control thereof, until he leaves it anchored free from shoal: Provided, that his responsibility shall cease at the.moment the master neglects or refuse(s) to carry out his instructions." The overall direction regarding the procedure for docking and

undocking the vessel emanates from the harbor pilot. In the present recourse, Gavino failed to live up to his responsibilities and exercise reasonable care or that degree of care required by the exigencies of the occasion. Failure on his part to exercise the degree of care demanded by the circumstances is negligence (Reese versus Philadelphia & RR Co. 239 US 363, 60 L ed. 384, 57 Am Jur, 2d page 418). 67 This affirms the findings of the trial court regarding Capt. Gavino's negligence: This discussion should not however, divert the court from the fact that negligence in manuevering the vessel must be attributed to Capt. Senen Gavino. He was an experienced pilot and by this time should have long familiarized himself with the depth of the port and the distance he could keep between the vessel and port in order to berth safely. 68 The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no less responsible for the allision. His unconcerned lethargy as master of the ship in the face of troublous exigence constitutes negligence. While it is indubitable that in exercising his functions a pilot is in sole command of the ship 69 and supersedes the master for the time being in the command and navigation of a ship and that he becomes master pro hac vice of a vessel piloted by him, 70 there is overwhelming authority to the effect that the master does not surrender his vessel to the pilot and the pilot is not the master. The master is still in command of the vessel notwithstanding the presence of a pilot. There are occasions when the master may and should interfere and even displace the pilot, as when the pilot is obviously incompetent or intoxicated and the circumstances may require the master to displace a compulsory pilot because of incompetency or physical incapacity. If, however, the master does nor observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot, but not blindly. 71 The master is not wholly absolved from his duties while a pilot is on board his vessel, and may advise with or offer suggestions to him. He is still in command of the vessel, except so far as her navigation is concerned, and must cause the ordinary work of the vessel to be properly carried on and the usual precaution taken. Thus, in particular, he is bound to see that there is sufficient watch on deck, and that the men are attentive to their duties, also that engines are stopped, towlines cast off, and the anchors clear and ready to go at the pilot's order. 72 A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of his duties as master of the ship, leaving the entire docking procedure up to the pilot, instead of maintaining watchful vigilance over this risky maneuver: Q Will you please tell us whether you have the right to intervene in docking of your ship in the harbor? A No sir, I have no right to intervene in time of docking, only in case there is imminent

102

danger to the vessel and to the pier. Q Did you ever intervene during the time that your ship was being docked by Capt. Gavino? A No sir, I did not intervene at the time when the pilot was docking my ship. Q Up to the time it was actually docked at the pier, is that correct? A No sir, I did not intervene up to the very moment when the vessel was docked. xxx xxx xxx Atty. Del Rosario (to the witness) Q Mr. Witness, what happened, if any, or was there anything unusual that happened during the docking? A Yes sir, our ship touched ihe pier and the pier was damaged. Court (to the witness) Q When you said touched the pier, are you leading the court to understand that your ship bumped the pier? A I believe that my vessel only touched the pier but the impact was very weak. Q Do you know whether the pier was damaged as a result of that slight or weak impact? A Yes sir, after the pier was damaged. xxx xxx xxx Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel to the port, did you observe anything irregular in the maneuvering by Capt. Gavino at the

time he was trying to cause the vessel to be docked at the pier? A You mean the action of Capt. Gavino or his condition? Court: Q Not the actuation that conform to the safety maneuver of the ship to the harbor? A No sir, it was a usual docking. Q By that statement of yours, you are leading the court to understand that there was nothing irregular in the docking of the ship? A Yes sir, during the initial period of the docking, there was nothing unusual that happened. Q What about in the last portion of the docking of the ship, was there anything unusual or abnormal that happened? A None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold the vessel. Q You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was nor timely? A I don't know the depth of this port but I think, if the anchor was dropped earlier and with more shackles, there could not have been an incident. Q So you could not precisely tell the court that the dropping of the anchor was timery because you are not well aware of the seabed, is that correct? A Yes sir, that is right. xxx xxx xxx

103

Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground so much so that the vessel could not travel? A It is difficult for me to say definitely. I believe that the anchor did not hold the ship. Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship from further moving? A Yes sir, it is possible. Q What is possible? A I think, the 2 shackles were not enough to hold the vessel. Q Did you know that the 2 shackles were dropped? A Yes sir, I knew that. Q If you knew that the shackles were not enough to hold the ship, did you not make any protest to the pilot? A No sir, after the incident, that was my assumption. Q Did you come to know later whether that presumption is correct? A I still don't know the ground in the harbor or the depths. Q So from the beginning, you were not competent whether the 2 shackles were also dropped to hold the ship? A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an experienced pilot and he should be more aware as to the depths of the harbor and the ground and I was confident in his actions.

xxx xxx xxx Solicitor Abad (to the witness) Q Now, you were standing with the pilot on the bridge of the vessel before the inicident happened, were you not? A Yes sir, all the time, I was standing with the pilot. Q And so whatever the pilot saw, you could also see from that point of view? A That is right. Q Whatever the piler can read from the panel of the bridge, you also could read, is that correct? A What is the meaning of panel? Q All indications necessary for men on the bridge to be informed of the movements of the ship? A That is right. Q And whatever sound the captain . . . Capt. Gavino would hear from the bridge, you could also hear? A That is right. Q Now, you said that when the command to lower the anchor was given, it was obeyed, is that right? A This command was executed by the third mate and boatswain. Court (to the witness) Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with the duties of the pilot and that, in your opinion, you can only intervene if the ship is placed in imminent danger, is that correct?

104

A That is right, I did say that. Q In your observation before the incident actually happened, did you observe whether or not the ship, before the actual incident, the ship was placed in imminent danger? A No sir, I did not observe. Q By that answer, are you leading the court to understand that because you did not intervene and because you believed that it was your duty to intervene when the vessel is placed in imminent danger to which you did not observe any imminent danger thereof, you have not intervened in any manner to the command of the pilot? A That is right, sir. xxx xxx xxx Q Assuminp that you disagreed with the pilot regarding the step being taken by the pilot in maneuvering the vessel, whose command will prevail, in case of imminent danger to the vessel? A I did nor consider the situation as having an imminent danger. I believed that the vessel will dock alongside the pier. Q You want us to understand that you did not see an imminent danger to your ship, is that what you mean? A Yes sir, up to the very last moment, I believed that there was no imminent danger. Q Because of that, did you ever intervene in the command of the pilot? A Yes sir, I did not intervene because I believed that the

command of the pilot to be correct. Solicitor Abad (to the witness) Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is it not? A Yes sir, that is right. Q Since it affects not only the safety of the port or pier, but also the safety of the vessel and the cargo, is it not? A That is right. Q So that, I assume that you were watching Capt. Gavino very closely at the time he was making his commands? A I was close to him, I was hearing his command and being executed. Q And that you were also alert for any possible mistakes he might commit in the maneuvering of the vessel? A Yes sir, that is right. Q But at no time during the maneuver did you issue order contrary to the orders Capt. Gavino made? A No sir. Q So that you were in full accord with all of Capt. Gavino's orders? A Yes sir. Q Because, otherwise, you would have issued order that would supersede his own order? A In that case, I should t,ke him away from his command or remove the command from him. Court (to the witness)

105

Q You were in full accord with the steps being taken by Capt. Gavino because you relied on his knowledge, on his familiarity of the seabed and shoals and other surroundings or conditions under the sea, is that correct? A Yes sir, that is right. xxx xxx xxx Solicitor Abad (to the witness) Q And so after the anchors were ordered dropped and they did not take hold of the seabed, you were alerted that there was danger already on hand? A No sir, there was no imminent danger to the vessel. Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom and it did not, there was no danger to the ship? A Yes sir, because the anchor dragged on the ground later. Q And after a few moments when the anchor should have taken hold the seabed bur not done (sic), as you expected, you already were alerted that there was danger to the ship, is that correct? A Yes sir, I was alerted but there was no danger. Q And you were alerted that somebody was wrong? A Yes sir, I was alerted. Q And this alert vou assumed was the ordinary alertness that you have for normal docking? A Yes sir, I mean that it was usual condition of

any man in time of docking to be alert. Q And that is the same alertness when the anchor did not hold onto the ground, is that correct? A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground. Q Since, as you said that you agreed all the while with the orders of Capt. Gavino, you also therefore agreed with him in his failure to take necessary precaution against the eventuality that the anchor will not hold as expected? Atty. Del Rosario: May I ask that the question . . . Solicitor Abad: Never mind, I will reform the question. xxx xxx xxx Solicitor Abad (to the witness) Q Is it not a fact that the vessel bumped the pier? A That is right, it bumped the pier. Q For the main reason that the anchor of the vessel did not hold the ground as expected? A Yes sir, that is my opinion. 73 Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the situation: Q Now, after the anchor was dropped, was there any point in time that you felt that the vessel was in imminent danger. A No, at that time, the vessel was not in imminent, danger, sir. 74

106

This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's anxious assessment of the situation: Q When a pilot is on board a vessel, it is the piler's command which should be followed at that moment until the vessel is, or goes to port or reaches port? A Yes, your Honor, but it does not take away from the Captain his prerogative to countermand the pilot. Q In what way? A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always has the prerogative to countermand the pilot's order. Q But insofar as competence, efficiency and functional knowledee of the seabed which are vital or decisive in the safety (sic) bringing of a vessel to the port, he is not competent? A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety of the vessel rest(s) upon the Captain, the Master of the vessel. Q In this case, there was not a disagreement between you and the Captain of the vessel in the bringing of the vessel to port? A No, your Honor. Court: May proceed. Atty. Catris: In fact, the Master of the vessel testified here that he was all along in conformity with the orders you, gave to him, and, as matter of fact, as he said, he obeyed all your orders. Can you tell, if in the course of

giving such normal orders for the saf(e) docking of the MV Pavlodar, do you remember of any instance that the Master of the vessel did not obey your command for the safety docking of the MV Pavlodar? Atty. del Rosario: Already answered, he already said yes sir. Court: Yes, he has just answered yes sir to the Court that there was no disagreement insofar as the bringing of the vessel safely to the port. Atty. Catris: But in this instance of docking of the MV Pavlodar, do you remember of a time during the course of the docking that the MV Pavlodar was in imminent danger of bumping the pier? A When we were about more than one thousand meters from the pier, I think, the anchor was not holding, so I immediately ordered to push the bow at a fourth quarter, at the back of the vessel in order to swing the bow away from the pier and at the same time, I ordered for a full astern of the engine. 75 These conflicting reactions can only imply, at the very least, unmindful disregard or, worse, neglectful relinquishment of duty by the shipmaster, tantamount to negligence. The findings of the trial court on this aspect is noteworthy: For, while the pilot Gavino may indeed have been charged with the task of docking the vessel in the berthing space, it is undisputed that the master of the vessel had the corresponding duty to countermand any of the orders made by the pilot, and even maneuver the vessel himself, in case of imminent danger to the vessel and the port. In fact, in his testimony, Capt. Kavankov admitted that all throughour the

107

man(eu)vering procedures he did not notice anything was going wrong, and even observed that the order given to drop the anchor was done at the proper time. He even ventured the opinion that the accident occurred because the anchor failed to take hold but that this did not alarm him because.there was still time to drop a second anchor. Under normal circumstances, the abovementioned facts would have caused the master of a vessel to take charge of the situation and see to the man(eu)vering of the vessel himself. Instead, Capt. Kavankov chose to rely blindly upon his pilot, who by this time was proven ill-equipped to cope with the situation. xxx xxx xxx It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov was no lesss responsible for as master of the vessel he stood by the pilot during the man(eu)vering procedures and was privy to every move the latter made, as well as the vessel's response to each of the commands. His choice to rely blindly upon the pilot's skills, to the point that despite being appraised of a notice of alert he continued to relinquish control of the vessel to Gavino, shows indubitably that he was not performing his duties with the diligence required of him and therefore may be charged with negligence along with defend;int Gavino. 76 As correctly affirmed by the Court of Appeals We are in full accord with the findings and disquisitions of the Court a quo. In the present recourse, Captain Viktor Kavankov had been a mariner for thirtytwo years before the incident. When Gavino was (in) the command of the vessel, Kavankov was beside Gavino, relaying the commands or orders of Gavino to the crewmembers-officers of the vessel concerned. He was thus fully aware of the docking maneuvers and procedure Gavino undertook to dock the vessel. Irrefragably, Kavankov was fully aware of the bulk and size of the vessel and its cargo as well as the weight of the vessel. Kavankov categorically admitted that, when the anchor and two (2) shackles were dropped to the sea floor, the claws of the anchor did not hitch on to any hard object in the seabed. The momentum of the vessel was not arrested. The use of the two (2) tugboats was insufficient. The momentum of the vessel, although a little bit arrested, continued (sic) the vessel going straightforward with its bow towards the port (Exhibit "A-1 ). There was thus a need for the vessel to move "full-astern" and to drop the other anchor with another shackle or two (2), for the vessel to avoid hitting the pier. Kavankov refused to act even as Gavino failed to act. Even as Gavino gave mere "half-astern"

order, Kavankov supinely stood by. The vessel was already about twenty (20) meters away from the pier when Gavino gave the "full-astern" order. Even then, Kavankov did nothing to prevent the vessel from hitting the pier simply because he relied on the competence and plan of Gavino. While the "full-astern'' maneuver momentarily arrested the momentum of the vessel, it was, by then, too late. All along, Kavankov stood supinely beside Gavino, doing nothing but relay the commands of Gavino. Inscrutably, then, Kavankov was negligent. xxx xxx xxx The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the vessel. It has been held that the incompetence of the navigator, the master of the vessel or its crew makes the vessel unseaworthy (Tug Ocean Prince versus United States of America, 584 F. 2nd, page 1151). Hence, the Appellant FESC is likewise liable for the damage sustained by the Appellee. 77 We find strong and well-reasoned support in time-tested American maritime jurisprudence, on which much of our laws and jurisprudence on the matter are based, for the conclusions of the Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov negligent. As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship China vs. Walsh, 78 that it is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel, at his discretion. In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that: Nor are rye satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel. While the pilot doubtless supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation, the master is not wholly absolved from his duties while the pilot is on board, and may advise with him, and even displace him in case he is intoxicated or manifestly incompetent. He is still in command of the vessel, except so far as her navigation is concerned, and bound to see that there is a sufficient watch on deck, and that the men are attentive to their duties. . . . (N)orwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to abandon the vessel entirely to the pilot; but that there are certain duties he has to discharge (notwithstanding there is a pilot on board) for the benefit of the owners. . . . that in well conducted ships the master does not regard the presence of a duly licensed pilot in compulsory pilot waters as

108

freeing him from every, obligation to attend to the safety of the vessel; but that, while the master sees that his officers and crew duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the navigation of the vessel, and, when exceptional circumstances exist, not only to urge upon the pilot to use every precaution, but to insist upon such being taken. 79 (Italics for emphasis.) In Jure vs. United Fruit Co., 80 which, like the present petitions, involved compulsory pilotage, with a similar scenario where at and prior to the time of injury, the vessel was in the charge of a pilot with the master on the bridge of the vessel beside said pilot, the court therein ruled: The authority of the master of a vessel is not in complete abeyance while a pilot, who is required by law to be accepted, is in discharge of his functions. . . . It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel. He may exercise it, or not, according to his discretion. There was evidence to support findings that piaintiff's injury was due to the negligent operation of the Atenas, and that the master of that vessel was negligent in failing to take action to avoid endangering a vessel situated as the City of Canton was and persons or property thereon. A phase of the evidence furnished support for the inferences . . . that he negligently failed to suggest to the pilot the danger which was disclosed, and means of avoiding such danger; and that the master's negligence in failing to give timelt admonition to the pilot proximately contributed to the injury complained of. We are of opinion that the evidence mentioned tended to prove conduct of the pilot, known to the master, giving rise to a case of danger or great necessity, calling for the intervention of the master. A master of a vessel is not without fault in acquiescing in canduct of a pilot which involves apparent and avoidable danger, whether such danger is to the vessel upon which the pilot is, or to another vessel, or persons or property thereon or on shore. (Emphasis ours.) Still in another case involving a nearly identical setting, the captain of a vessel alongside the compulsory pilot was deemed to be negligent, since, in the words of the court, "he was in a position to exercise his superior authority if he had deemed the speed excessive on the occasion in question. I think it was clearly negligent of him not to have recognized the danger to any craft moored at Gravell Dock and that he should have directed the pilot to reduce his speed as required by the local governmental regulations. His failure amounted to negligence and renders the respondent liable." 81 (Emphasis supplied.) Though a compulsory pilot might be regarded as an independent contractor, he is at all times subject to the ultimate control of the ship's master. 82 In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him to navigate it, if the master observes that the pilot is incompetent or physically

incapable, then it is the dury of the master to refuse to permit the pilot to act. But if no such reasons are present, then the master is justified in relying upon the pilot, but not blindly. Under the circumstances of this case, if a situation arose where the master, exercising that reasonable vigilance which the master of a ship should exercise, observed, or should have observed, that the pilot was so navigating the vessel that she was going, or was likely to go, into danger, and there was in the exercise of reasonable care and vigilance an opportunity for the master to intervene so as to save the ship from danger, the master should have acted accordingly. 83 The master of a vessel must exercise a degree of vigilance commensurate with the circumstances. 84 Inasmuch as the matter of negligence is a question of fact, 85 we defer to the findings of the trial court, especially as this is affirmed by the Court of Appeals. 86 But even beyond that, our own evaluation is that Capt. Kabankov's shared liability is due mainly to the fact that he failed to act when the perilous situation should have spurred him into quick and decisive action as master of the ship. In the face of imminent or actual danger, he did not have to wait for the happenstance to occur before countermanding or overruling the pilot. By his own admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and this is precisely the reason why he decided not to countermand any of the latter's orders. Inasmuch as both lower courts found Capt. Gavino negligent, by expressing full agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino. In general, a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel, and to third parties for damages sustained in a collision. Such negligence of the pilot in the performance of duty constitutes a maritime tort. 87 At common law, a shipowner is not liable for injuries inflicted exclusively by the negligence of a pilot accepted by a vessel compulsorily. 88 The exemption from liability for such negligence shall apply if the pilot is actually in charge and solely in fault. Since, a pilot is responsible only for his own personal negligence, he cannot be held accountable for damages proximately caused by the default of others, 89 or, if there be anything which concurred with the fault of the pilot in producing the accident, the vessel master and owners are liable. Since the colliding vessel is prima facie responsible, the burden of proof is upon the party claiming benefit of the exemption from liability. It must be shown affirmatively that the pilot was at fault, and that there was no fault on the part of the officers or crew, which might have been conducive to the damage. The fact that the law compelled the master to take the pilot does not exonerate the vessel from liability. The parties who suffer are entitled to have their remedy against the vessel that occasioned the damage, and are not under necessity to look to the pilot from whom redress is not always had for compensation. The owners of the vessel are responsible to the injured party for the acts of the pilot, and they must be left to recover the amount as well as they can against him. It cannot be maintained that the circumstance of having a pilot on board, and acting in conformity to his directions operate as a discharge of responsibility of the owners. 90 Except insofar as their liability is limited or exempted by statute, the vessel or her owner are liable for all damages caused by the negligence or other wrongs of the owners or those in charge of the vessel. Where the pilot of a vessel is not a compulsory one in the sense that the owner or master of the vessel are bound to accept him, but is employed voluntarily, the owners of the vessel are, all the more, liable for his negligent act. 91 In the United States, the owners of a vessel are not personally liable for the negligent acts of a compulsory pilot, but by admiralty law, the fault or negligence of a compulsory pilot is imputable to the vessel and it may be held liable therefor in rem. Where, however, by the provisions of the

109

statute the pilot is compulsory only in the sense that his fee must be paid, and is not in compulsory charge of the vessel, there is no exemption from liability. Even though the pilot is compulsory, if his negligence was not the sole cause of the injury, but the negligence of the master or crew contributed thereto, the owners are liable. 92 But the liability of the ship in rem does not release the pilot from the consequences of his own negligence. 93 The rationale for this rule is that the master is not entirely absolved of responsibility with respect to navigation when a compulsory pilot is in charge. 94 By way of validation and in light of the aforecited guidepost rulings in American maritime cases, we declare that our rulings during the early years of this century in City of Manila vs. Gambe, 95 China Navigation Co., Ltd. vs. Vidal, 96 and Yap Tica & Co. vs. Anderson, et al. 97 have withstood the proverbial test of time and remain good and relevant case law to this day. City of Manila stands for the doctrine that the pilot who was in command and complete control of a vessel, and not the owners, must be held responsible for an accident which was solely the result of the mistake of the pilot in not giving proper orders, and which did not result from the failure of the owners to equip the vessel with the most modern and improved machinery. In China Navigation Co., the pilot deviated from the ordinary and safe course, without heeding the warnings of the ship captain. It was this careless deviation that caused the vessel to collide with a pinnacle rock which, though uncharted, was known to pilots and local navigators. Obviously, the captain was blameless. It was the negligence of the pilot alone which was the proximate cause of the collision. The Court could not but then rule that The pilot in the case at bar having deviated from the usual and ordinary course followed by navigators in passing through the strait in question, without a substantial reason, was guilty of negligence, and that negligence having been the proximate cause of the damages, he is liable for such damages as usually and naturally flow therefrom. . . . . . . (T)he defendant should have known of the existence and location of the rock upon which the vessel struck while under his control and management. . . . . Consistent with the pronouncements in these two earlier cases, but on a slightly different tack, the Court in Yap Tico & Co. exonerated the pilot from liability for the accident where the orders of the pilot in the handling of the ship were disregarded by the officers and crew of the ship. According to the Court, a pilot is ". . . responsible for a full knowledge of the channel and the navigation only so far as he can accomplish it through the officers and crew of the ship, and I don't see chat he can be held responsible for damage when the evidence shows, as it does in this case, that the officers and crew of the ship failed to obey his orders." Nonetheless, it is possible for a compulsory pilot and the master of the vessel to be concurrently negligent and thus share the blame for the resulting damage as joint tortfeasors, 98 but only under the circumstances obtaining in and demonstrated by the instant petitions. It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other than piaintiff's, is the proximate cause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the injury

would not have resulted to as great an extent, and that such cause is not attributable to the person injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the negligence or wrongful acts of the other concurrent rortfeasor. 99 Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. No actor's negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury. 100 There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage. Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion each contributed to the injury and either of them is responsible for the whole injury. Where their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting damage under Article 2194 101 of the Civil Code. 102 As for the amount of damages awarded by the trial court, we find the same to be reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on cross and redirect examination, appears to be grounded on practical considerations: Q So that the cost of the two additional piles as well as the (two) square meters is already included in this P1,300,999.77. A Yes sir, everything. It is (the) final cost already. Q For the eight piles. A Including the reduced areas and other reductions. Q (A)nd the two square meters. A Yes sir. Q In other words, this P1,300,999.77 does not represent only for the six piles that was damaged as well as the corresponding two piles. A The area was corresponding, was increased by almost two in the actual payment. That was why the contract was decreased, the real amount was

110

P1,124,627.40 and the final one is P1,300,999.77. Q Yes, but that P1,300,999.77 included the additional two new posts. A It was increased. Q Why was it increased? A The original was 48 and the actual was 46. Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair and reconstruction in 1982, that took almost two years? A Yes sir. Q May it not happen that by natural factors, the existing damage in 1980 was aggravated for the 2 year period that the damage portion was not repaired? A I don't think so because that area was at once marked and no vehicles can park, it was closed. Q Even if or even natural elements cannot affect the damage? A Cannot, sir. xxx xxx xxx Q You said in the crossexamination that there were six piles damaged by the accident, but that in the reconstruction of the pier, PPA drove and constructed 8 piles. Will you explain to us why there was change in the number of piles from the original number? A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive piles at the same point. You have to redesign the driving of the piles. We

cannot drive the piles at the same point where the piles are broken or damaged or pulled out. We have to redesign, and you will note that in the reconstruction, we redesigned such that it necessitated 8 plies. Q Why not, why could you not drive the same number of piles and on the same spot? A The original location was already disturbed. We cannot get required bearing capacity. The area is already disturbed. Q Nonetheless, if you drove the original number of piles, six, on different places, would not that have sustained the same load? A It will not suffice, sir. 103 We quote the findings of the lower court with approval. With regards to the amount of damages that is to be awarded to plaintiff, the Court finds that the amount of P1,053,300.00 is justified. Firstly, the doctrine of res ipsa loquitur best expounded upon in the landmark case of Republic vs. Luzon Stevedoring Corp. (21 SCRA 279) establishes the presumption that in the ordinary course of events the ramming of the dock would not have occurred if proper care was used. Secondly, the various estimates and plans justify the cost of the port construction price. The new structure constructed not only replaced the damaged one but was built of stronger materials to forestall the possibility of any similar accidents in the future. The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 which represents actual damages caused by the damage to Berth 4 of the Manila International Port. Codefendants Far Eastern Shipping, Capt. Senen Gavino and Manila Pilots Association are solidariiy liable to pay this amount to plaintiff.104 The Solicitor General rightly commented that the adjudicated amount of damages represents the proportional cost of repair and rehabilitation of the damaged section of the pier. 105 Except insofar as their liability is limited or exempted by statute, the vessel or her owners are liable for all damages caused by the negligence or other wrongs of the owners or

111

those in charge of the vessel. As a general rule, the owners or those in possession and control of a vessel and the vessel are liable for all natural and proximate damages caused to persons or property by reason of her negligent management or navigation. 106 FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not only because it appears to be a mere afterthought, being tardily raised only in this petition, but also because there is no allegation or evidence on record about Berth No. 4 being unsafe and unreliable, although perhaps it is a modest pier by international standards. There was, therefore, no error on the part of the Court of Appeals in dismissing FESC's counterclaim. II. G.R. No. 130150 This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and solidarily liable with its member pilot. Capt. Gavino, in the absence of employer-employee relationship and in applying Customs Administrative Order No. 15-65, as basis for the adjudged solidary liability of MPA and Capt. Gavino. The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are: PAR. XXVII. In all pilotage districts where pilotage is compulsory, there shall be created and maintained by the pilots or pilots' association, in the manner hereinafter prescribed, a reserve fund equal to P1,000.00 for each pilot thereof for the purpose of paying claims for damages to vessels or property caused through acts or omissions of its members while rendered in compulsory pilotage service. In Manila, the reserve fund shall be P2,000.00 for each pilot. PAR. XXVIII. A pilots' association shall not be liable under these regulations for damage to any vessel, or other property, resulting from acts of a member of an association in the actual performance of his duty for a greater amount than seventy-five per centum (75%) of its prescribed reserve fund; it being understood that if the association is held liable for an amount greater than the amount above-stated, the excess shall be paid by the personal funds of the member concerned. PAR. XXXI. If a payment is made from the reserve fund of an association on account of damages caused by a member thereof, and he shall have been found at fault, such member shall reimburse the association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five per centum of his dividends shall be retained each month until the full amount has been returned to the reserve fund. PAR. XXXIV. Nothing in these regulations shall relieve any pilots' association or members thereof, individually or collectively, from civil responsibility for damages to life or property resulting from the acts of members in the performance of their duties.

Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timery amended this applicable maritime regulation, state: Art. IV Sec. 17. Pilots' Association The Pilots in a Pilotage District shall organize themselves into a Pilots' Association or firm, the members of which shall promulgate their own By-Laws not in conflict with the rules and regulations promulgated by the Authority. These ByLaws shall be submitted not later than one (1) month after the organization of the Pilots' Association for approval by the General Manager of the Authority. Subsequent amendments thereto shall likewise be submitted for approval. Sec. 25. Indemnity Insurance and Reserve Fund a) Each Pilots' Association shall collectively insure its membership at the rate of P50,000.00 each member to cover in whole or in part any liability arising from any accident resulting in damage to vessel(s), port facilities and other properties and/or injury to persons or death which any member may have caused in the course of his performance of pilotage duties. . . . . b) The Pilotage Association shall likewise set up and maintain a reserve fund which shall answer for any part of the liability referred to in the immediately preceding paragraph which is left unsatisfied by the insurance proceeds, in the following manner: 1) Each pilot in the Association shall contribute from his own account an amount of P4,000.00 (P6,000.00 in the Manila Pilotage District) to the reserve fund. This fund shall not be considered part of the capital of the Association nor charged as an expense thereof. 2) Seventy-five percent (75 %) of the reserve fund shall be set aside for use in the payment of damages referred to above incurred in the actual performance of pilots' duties and the excess shall be paid from the personal funds of the member concerned. xxx xxx xxx 5) If payment is made from the reserve fund of an Association on account of damage caused by a member thereof who is found at fault, he shall reimburse the Association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five percentum (25 %) of his dividend shall be retained each month until the full amount has been returned to the reserve fund. Thereafter, the pilot involved shall be entitled to his full dividend. n the reimbursement has been completed as prescribed in the preceding paragraph, the ten percentum (10%) and the interest withheld from the shares of the other pilots in accordance with paragraph (4) hereof shall be returned to thec) Liability of Pilots' Association Nothing in these regulations shall relieve any Pilots' Association or members thereof, individually or collectively, from any civil, administrative and/or criminal responsibility for damages to life or property resulting from the individual acts of its members as well as those of the Association's employees and crew in the performance of their duties. The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of FESC, MPA and Capt.

112

Gavino, correctly based MPA' s liability not on the concept of employer-employee relationship between Capt. Gavino and itself, but on the provisions of Customs Administrative Order No. 15-65: The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo, the Appellant Gavino was not and has never been an employee of the MPA but was only a member thereof. The Court a quo, it is noteworthy, did not state the factual basis on which it anchored its finding that Gavino was the employee of MPA. We are in accord with MPA's pose. Case law teaches Us that, for an employeremployee relationship to exist, the confluence of the following elements must be established: (1) selection and engagement of employees; (2) the payment of wages; (3) the power of dismissal; (4) the employer's power to control the employees with respect to the means and method by which the work is to be performed (Ruga versus NLRC, 181 SCRA 266). xxx xxx xxx The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as erroneously found and declared by the Court a quo but under the provisions of Customs Administrative Order No. 15-65, supra, in tandem with the by-laws of the MPA. 107 There being no employer-employee relationship, clearly Article 2180 108 of the Civil Code is inapplicable since there is no vicarious liability of an employer to speak of. It is so stated in American law, as follows: The well established rule is that pilot associations are immune to vicarious liability for the tort of their members. They are not the employer of their members and exercise no control over them once they take the helm of the vessel. They are also not partnerships because the members do not function as agents for the association or for each other. Pilots' associations are also not liable for negligently assuring the competence of their members because as professional associations they made no guarantee of the professional conduct of their members to the general public. 109 Where under local statutes and regulations, pilot associations lack the necessary legal incidents of responsibility, they have been held not liable for damages caused by the default of a member pilot. 110 Whether or not the members of a pilots' association are in legal effect a copartnership depends wholly on the powers and duties of the members in relation to one another under the provisions of the governing statutes and regulations. The relation of a pilot to his association is not that of a servant to the master, but of an associate assisting and participating in a common purpose. Ultimately, the rights and liabilities between a pilots' association and an individual member depend largely upon the constitution, articles or by-laws of the association, subject to appropriate government regulations. 111 No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a pilots' association in ljght of existing positive regulation under Philippine law.

The Court of Appeals properly applied the clear and unequivocal provisions of Customs Administrative Order No. 15-65. In doing so, it was just being consistent with its finding of the non-existence of employer-employee relationship between MPA and Capt. Gavino which precludes the application of Article 2180 of the Civil Code. True. Customs Administrative Order No. 15-65 does not categorically characterize or label MPA's liability as solidary in nature. Nevertheless, a careful reading and proper analysis of the correlated provisions lead to the conclusion that MPA is solidarily liable for the negligence of its member pilots, without prejudice to subsequent reimbursement from the pilot at fault. Art. 1207 of the Civil Code provides that there is solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. Plainly, Customs Administrative Order No. 15-65, which as an implementing rule has the force and effect of law, can validly provide for solidary liability.We note the Solicitor General's comment hereon, to wit: . . . Customs Administrative Order No. 1565 may be a mere rule and regulation issued by an administrative agency pursuant to a delegated authority to fix "the details" in the execution or enforcement of a policy set out in the law itself. Nonetheless, said administrative order, which adds to the procedural or enforcing provisions of substantive law, is legally binding and receives the same statutory force upon going into effect. In that sense, it has equal, not lower, statutory force and effect as a regular statute passed by the legislature. 112 MPA's prayer for modification of the appellate court's decision under review by exculpating petitioner MPA "from liability beyond seventy-five percent (75 %) of Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of Customs Administrative Order No. 15-65 is in fact limited to seventy-five percent (75 %) of its prescribed reserve fund, any amount of liability beyond that being for the personal account of the erring pilot and subject to reimbursement in case of a finding of fault by the member concerned. This is clarified by the Solicitor General: Moreover, contrary to petitioner's pretensions, the provisions of Customs Administrative Order No. 15-65 do not limit the liability of petitioner as a pilots' association to an absurdly small amount of seventy-five per centum (75 %) of the member pilots' contribution of P2,000.00 to the reserve fund. The law speaks of the entire reserve fund required to be maintained by the pilots' association to answer (for) whatever liability arising from the tortious act of its members. And even if the association is held liable for an amount greater than the reserve fund, the association may not resist the liability by claiming to be liable only up to seventyfive per centum (75 %) of the reserve fund because in such instance it has the right to be reimbursed by the offending member pilot for the excess. 113 WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED and the assailed decision of the Court of Appeals is AFFIRMED in toto.

113

Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty. Herbert A. Tria, is REPRIMANDED and WARNED that a repetition of the same or similar acts of heedless disregard of its undertakings under the Rules shall be dealt with more severely. The original members of the legal team of the Office of the Solicitor General assigned to this case, namely, Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition of the same or similar acts of unduly delaying proceedings due to delayed filing of required pleadings shall also be dealt with more stringently. The Solicitor Genral is DIRECTED to look into the circumstances of this case and to adopt provident measures to avoid a repetition of this incident and which would ensure prompt compliance with orders of this Court regarding the timely filing of requisite pleadings, in the interest of just, speedy and orderly administration of justice. Let copies of this decision be spread upon the personal records of the lawyers named herein in the Office of the Bar Confidant. SO ORDERED. Adm. Case No. 4680 August 29, 2000

padding of the votes considering the nature and extent of the irregularities and the fact that the canvassing of the election returns was done under their control and supervision. On December 4, 1998, the Integrated Bar of the Philippines, to which this matter had been referred pursuant to Rule 139-B, 13, in relation to 20 of the Rules of Court, recommended the dismissal of the complaint for lack of merit.3 Petitioner filed a motion for reconsideration on March 11, 1999, but his motion was denied in a resolution of the IBP Board of Governors dated April 22, 1999. On June 4, 1999, he filed this petition pursuant to Rule 139-B, 12(c). It appears that complainant likewise filed criminal charges against respondents before the COMELEC (E.O. Case No. 961132) for violation of R.A. No. 6646, 27(b). In its resolution dated January 8, 1998, the COMELEC dismissed complainant's charges for insufficiency of evidence. However, on a petition for certiorari filed by complainant,4 this Court set aside the resolution and directed the COMELEC to file appropriate criminal charges against respondents. Reconsideration was denied on August 15, 2000. Considering the foregoing facts, we hold that respondents are guilty of misconduct. First. Respondent Llorente seeks the dismissal of the present petition on the ground that it was filed late. He contends that a motion for reconsideration is a prohibited pleading under Rule 139-B, 12(c)5 and, therefore, the filing of such motion before the IBP Board of Governors did not toll the running of the period of appeal. Respondent further contends that, assuming such motion can be filed, petitioner nevertheless failed to indicate the date of his receipt of the April 22, 1999 resolution of the IBP denying his motion for reconsideration so that it cannot be ascertained whether his petition was filed within the 15-day period under Rule 139-B, 12(c). The contention has no merit. The question of whether a motion for reconsideration is a prohibited pleading or not under Rule 139-B, 12(c) has been settled in Halimao v. Villanueva,6 in which this Court held: Although Rule 139-B, 12(C) makes no mention of a motion for reconsideration, nothing in its text or in its history suggests that such motion is prohibited. It may therefore be filed within 15 days from notice to a party. Indeed, the filing of such motion should be encouraged before resort is made to this Court as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment an opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of the evidenced.7 On the question whether petitioner's present petition was filed within the 15-day period provided under Rule 139-B, 12(c), although the records show that it was filed on June 4, 1999, respondent has not shown when petitioner received a copy of the resolution of the IBP Board of Governors denying his motion for reconsideration. It would appear, however, that the petition was filed on time because a copy of the resolution personally served on the Office of the Bar Confidant of this Court was received by it on May 18, 1999. Since copies of IBP resolutions are sent to the parties by mail, it is possible that the copy sent to petitioner was received by him later than May 18, 1999. Hence, it may be assumed that his present petition was filed within 15 days from his receipt of the IBP resolution. In any event, the burden was on respondent, as the moving party, to show that the petition in this case was filed beyond the 15-day period for filing it.

AQUILINO Q. PIMENTEL, JR., complainant, vs. ATTYS. ANTONIO M. LLORENTE and LIGAYA P. SALAYON, respondents. MENDOZA, J.: This is a complaint for disbarment against respondents Antonio M. Llorente and Ligaya P. Salayon for gross misconduct, serious breach of trust, and violation of the lawyer's oath in connection with the discharge of their duties as members of the Pasig City Board of Canvassers in the May 8, 1995 elections. Salayon, then election officer of the Commission on Elections (COMELEC), was designated chairman of said Board, while Llorente, who was then City Prosecutor of Pasig City, served as its ex oficio vice-chairman as provided by law.1 Complainant, now a senator, was also a candidate for the Senate in that election. Complainant alleges that, in violation of R.A. No. 6646, 27(b),2 respondents tampered with the votes received by him, with the result that, as shown in the Statements of Votes (SoVs) and Certificate of Canvass (CoC) pertaining to 1,263 precincts of Pasig City, (1) senatorial candidates Juan Ponce Enrile, Anna Dominique Coseteng, Gregorio Honasan, Marcelo Fernan, Ramon Mitra, and Rodolfo Biazon were credited with votes which were above the number of votes they actually received while, on the other hand, petitioner's votes were reduced; (2) in 101 precincts, Enrile's votes were in excess of the total number of voters who actually voted therein; and (3) the votes from 22 precincts were twice recorded in 18 SoVs. Complainant maintains that, by signing the SoVs and CoC despite respondents' knowledge that some of the entries therein were false, the latter committed a serious breach of public trust and of their lawyers' oath. Respondents denied the allegations against them. They alleged that the preparation of the SoVs was made by the 12 canvassing committees which the Board had constituted to assist in the canvassing. They claimed that the errors pointed out by complainant could be attributed to honest mistake, oversight, and/or fatigue. In his Consolidated Reply, complainant counters that respondents should be held responsible for the illegal

114

Even assuming that petitioner received the IBP resolution in question on May 18, 1999, i.e., on the same date a copy of the same was received by the Office of the Bar Confidant, the delay would only be two days.8 The delay may be overlooked, considering the merit of this case. Disbarment proceedings are undertaken solely for public welfare. The sole question for determination is whether a member of the bar is fit to be allowed the privileges as such or not. The complainant or the person who called the attention of the Court to the attorney's alleged misconduct is in no sense a party, and generally has no interest in the outcome except as all good citizens may have in the proper administration of justice.9 For this reason, laws dealing with double jeopardy10 or prescription11 or with procedure like verification of pleadings12 and prejudicial questions13 have no application to disbarment proceedings. Even in ordinary civil actions, the period for perfecting appeals is relaxed in the interest of justice and equity where the appealed case is clearly meritorious. Thus, we have given due course to appeals even though filed six,14four,15 and three16 days late. In this case, the petition is clearly meritorious. Second. The IBP recommends the dismissal of petitioner's complaint on the basis of the following: (1) respondents had no involvement in the tabulation of the election returns, because when the Statements of Votes (SoVs) were given to them, such had already been accomplished and only needed their respective signatures; (2) the canvassing was done in the presence of watchers, representatives of the political parties, the media, and the general public so that respondents would not have risked the commission of any irregularity; and (3) the acts dealt with in R.A. No. 6646, 27(b) are mala in se and not mala prohibita, and petitioner failed to establish criminal intent on the part of respondents.17 The recommendation is unacceptable. In disciplinary proceedings against members of the bar, only clear preponderance of evidence is required to establish liability.18 As long as the evidence presented by complainant or that taken judicial notice of by the Court1 9 is more convincing and worthy of belief than that which is offered in opposition thereto,20 the imposition of disciplinary sanction is justified.. In this case, respondents do not dispute the fact that massive irregularities attended the canvassing of the Pasig City election returns. The only explanation they could offer for such irregularities is that the same could be due to honest mistake, human error, and/or fatigue on the part of the members of the canvassing committees who prepared the SoVs. This is the same allegation made in Pimentel v. Commission on Elections.21 In rejecting this allegation and ordering respondents prosecuted for violation of R.A. No. 6646, 27(b), this Court said: There is a limit, we believe, to what can be construed as an honest mistake or oversight due to fatigue, in the performance of official duty. The sheer magnitude of she error, not only in the total number of votes garnered by the aforementioned candidates as reflected in the CoC and the SoVs, which did not tally with that reflected in the election returns, but also in the total number of votes credited for senatorial candidate Enrile which exceeded the total number of voters who actually voted in those precincts during the May 8, 1995 elections, renders the defense of honest mistake or oversight due to fatigue, as incredible and simply unacceptable.22

Indeed, what is involved here is not just a case of mathematical error in the tabulation of votes per precinct as reflected in the election returns and the subsequent entry of the erroneous figures in one or two SoVs23 but a systematic scheme to pad the votes of certain senatorial candidates at the expense of petitioner in complete disregard of the tabulation in the election returns. A cursory look at the evidence submitted by petitioner reveals that, in at least 24 SoVs involving 101 precincts, the votes for candidate Enrile exceeded the number of voters who actually voted in the said precincts and, in 18 SoVs, returns from 22 precincts were-tabulated twice. In addition, as the Court noted in Pimentel, the total number of votes credited to each of the seven senatorial candidates in question, as reflected in the CoC, markedly differ from those indicated in the SoVs.24 Despite the fact that these discrepancies, especially the double recording of the returns from 22 precincts and the variation in the tabulation of votes as reflected in the SoVs and CoC, were apparent on the face of these documents and that the variation involves substantial number of votes, respondents nevertheless certified the SoVs as true and correct. Their acts constitute misconduct. Respondent Llorente's contention that he merely certified the genuineness and due execution of the SoVs but not their correctness is belied by the certification which reads: WE HEREBY CERTIFY that the foregoing Statement of Votes by . . . [p]recinct is true and correct. IN WITNESS WHEREOF, we sign these presents at the City/Municipality of ___________ Province of ________ this _______ day of May, 1995. (Emphasis added) Nor does the fact that the canvassing was open to the public and observed by numerous individuals preclude the commission of acts for which respondents are liable. The fact is that only they had access to the SoVs and CoC and thus had the opportunity to compare them and detect the discrepancies therein. Now, a lawyer who holds a government position may not be disciplined as a member of the bar for misconduct in the discharge of his duties as a government official.25 However, if the misconduct also constitutes a violation of the Code of Professional Responsibility or the lawyer's oath or is of such character as to affect his qualification as a lawyer or shows moral delinquency on his part, such individual may be disciplined as a member of the bar for such misconduct.26 Here, by certifying as true and correct the SoVs in question, respondents committed a breach of Rule 1.01 of the Code which stipulates that a lawyer shall not engage in "unlawful, dishonest, immoral or deceitful conduct." By express provision of Canon 6, this is made applicable to lawyers in the government service. In addition, they likewise violated their oath of office as lawyers to "do no falsehood." Nowhere is the-need for lawyers to observe honesty both in their private and in their public dealings better expressed in Sabayle v. Tandayag27 in which this Court said: There is a strong public interest involved in requiring lawyers to behave at all times in a manner consistent with truth and honor it is important that the common caricature that lawyers by and large do not feel compelled to speak the truth and to act honestly, should not become a common reality . . .28 It may be added that, as lawyers in the government service, respondents were under greater obligation to observe this basic tenet of the profession because a public office is a public trust.

115

Third. Respondents' participation in the irregularities herein reflects on the legal profession, in general, and on lawyers in government in particular. Such conduct in the performance of their official duties, involving no less than the ascertainment of the popular will as expressed through the ballot, would have merited for them suspension were it not for the fact that this is their first administrative transgression and, in the case of Salayon, after a long public service.29 Under the circumstances, a penalty of fine in the amount of P10,000.00 for each of the respondents should be sufficient. WHEREFORE, the Court finds respondents Antonio M. Llorente and Ligaya P. Salayon GUILTY of misconduct and imposes on each of them a FINE in the amount of P10,000.00 with a WARNING that commission of similar acts will be dealt with more severely.1wphi1.nt SO ORDERED. G.R. No. L-1701 December 22, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO ESQUIVEL AND AMADO DIZON (Alias AMADO BASCO), defendants-appellants. Alfonso G. Espinosa for appellant P. Esquivel. Herminio E. Algas for appellant A. Dizon. Assistant Solicitor General Inocencio Rosal and Solicitor Jose P. Alejandro for appellee. TUASON, J.: On July 28, 1946, two jeeps respectively driven by Rosalio Paje and Benigno Valenzuela and owned by Mauro Buing were "hired" by a group of hoodlums on Azcarraga Street, Manila, purportedly to bring rice from San Miguel, Bulacan. When they reached San Miguel, the drivers, over their objection, were directed to proceed to San Isidro, Nueva Ecija. In the latter town, their hands were bound and in the latter part of the day they were marched up to a thicket and murdered, after which their bodied were thrown into the river. The next day the jeeps were sold in Cabanatuan, without the route signs and the spare tires which were left in San Isidro, and were recovered by members of the MPC detachment in that town. Only five of the malefactors were arrested, three of whomAmado Basco alias Amado Dizon, Ben Pascual aliasBernabe Pascual, and Pablo Esquivel-were brought to trial, and two Gorgonio Rivera and Simplicio Navarro turned state's evidence. These last two were not included in the complaint or information and at the time of trial were still in the hands of the Philippine Constabulary. The rest of the culprits, although named in the complaint filed with the justice of the peace, had not been arrested on the dates the case was tried in the Court of First Instance. The three accused who were put on trial were found guilty of robbery with double homicide and were sentenced jointly and severally to pay the owners of the jeeps P4,000, the heirs of Rosalio Paje P2,000 and the heirs of Benigno Valenzuela equal sum. They were also sentenced to pay the costs and the accessories of the law. From this judgment, Dizon and Esquivel have appealed, Ben Pascual having abided by the judgment. All of them set up alibi as a defense. Following is a brief summary of the testimony of Simplicio Navarro, 17 years old, residing at 1324 Juan Luna, Tondo, Manila: On or about the 24th of July, about one o'clock in the afternoon, he and Mariano Jacutan (from Nueva Ecija), whom he had known before, met on Juan Luna street, and Jacutan asked him if he wanted to come along to Nueva Ecija.

Having answered yes, he went to San Isidro, Nueva Ecija on the 27th. In San Isidro he saw Jacutan and was introduced by the latter to Amado Basco, one named Naong Malingit, another small fellow whose name he did not remember, Pablo Esquivel, Ben Pascual, one Turong, one Rading and the latter's father. On the same day (but apparently at another meeting)the plan was made to commit the robbery. Those who were present in that meeting were Mariano Jacutan, Amado Basco, Gorgonio Rivera, Turong, Rading and the witness. It was agreed that the witness, Gorgonio Rivera and Amado Basco would come to Manila to "hire" a jeep to fetch rice from San Miguel. The three of them came to Manila and met, on Juan Luna Street, Lolet and Carding whom they invited to join them. On Sunday morning, July 28, they went to Azcarraga Street with Lolet and Carding and succeeded in "hiring" two jeeps as planned. In going to Nueva Ecija, the witness and Basco rode in one jeep and the rest in the other. In San Miguel, in a gas station, they found Fred who got into the jeep wherein Lolet and Rivera were riding and came along to San Isidro. In San Isidro, in front of Mariano Jacutan's house, their jeeps stopped and the passengers went upstairs to eat, as they had not taken their breakfast yet. The chauffeurs were told to follow them but they said they were going to eat in the jeeps. Nevertheless the drivers were persuaded at last to come, but they stopped at the porch. When the chauffeurs insisted o remaining on the porch, the witness heard someone say that who ever refused would be shot. Upon this, the drivers stepped inside and sat on two chairs. Thereafter Amado Basco, who was carrying a .45 automatic, told Gorgonio Rivera to tie them and Rivera obeyed. Later, Jacutan told Turong that it would be better to take the chauffeurs away from the house and Turong said it was a good idea. Then Turong selected the men who were to remove the drivers, and those men were Fred, Nanong Munti, and one of Captain Baguisa's men whom he did not know. Gorgonio Rivera followed the executioneers just named and the drivers at about two o'clock in the afternoon. Gorgonio Rivera, 22 years old, resident of Carmen, Zaragosa, Nueva Ecija testified in substance that on July 27, 1946, he came to Manila with Amado Basco and Simplicio Navarro. In Manila, they met Carding and Lolet, and Amado Basco talked with them and said they were to "hire" a jeep. They were able to contract two jeeps and came back to San Isidro therein. In one jeep he, Carding and Lolet rode, and Amado Basco and Simplicio Navarro rode in the other. It was Sunday and they arrived in San Isidro at eleven o'clock in the morning, having left Manila at about eight o'clock. In San Isidro they stopped in front of Mariano Jacutan's house and Amado Basco told the drivers to get off and come up the house. Afterward Lolet, Lopez and Turong drove the jeeps and kept them in a bamboo thicket. Amado Basco told him(witness) to look for a piece of rope and tie the drivers. He complied with this order and while tying the drivers Basco was aiming his .45 at them. The tow drivers were later taken to the bank of the river where there were bamboo trees. Those who conducted the drivers were Amado Basco, Fred, Mariano Jacutan and Carding. Before that, coming from a hukbalahap parade, he found Pablo Esquivel saying, "If we leave those two chauffeurs alive they will denounce us," and Amado Basco commented that was true and they should be killed. The two drivers were led to the bank of the river. Basco and Esquivel as well as Ben Pascual each signed and swore to a confession written at the MPC headquarters. Both repudiated these statements alleging they had been forced to sign them through violence. The charge of maltreatment was not denied although there was a chance for the prosecution to do so. Moreover, there is a stamp of truth in the charge of torture. It will be seen that the evidence against Esquivel, apart from his alleged confession, consist of Simplicio Navarro's testimony that he came to know this defendant in Jacutan's house and Gorgonio Rivera's testimony that Esquivel suggested the liquidation of the two drivers. The prosecution

116

does not claim that Esquivel made the trip to Manila or that he accompanied the men who murdered the drivers. And Rivera's and Navarro's testimony does not pretended to show that Esquivel took part in the devising of the scheme to entice jeeps to Nueva Ecija. From what we can gather from the confused evidence, it does not even say that Esquivel was around at any moment at any moment from the time the jeeps arrived to the time the drivers were removed to a secluded spot. That Esquivel suggested the elimination of the drivers, as Gorgonio Rivera asserted, was contradicted by the other witness, Simplicio Navarro, who said that it was Jacutan from whom the idea came and that it was Turong, not Basco, who seconded it. Esquivel's presence in Jacutan's house when Simplicio Navarro arrived from Manila the first time is the only point on which the two witnesses agree. But that presence alone does not constitute proof that Esquivel was a party to the criminal conspiracy. We do not say that Gorgonio Rivera committed an intentional falsehood. His testimony on the whole impresses us as true. The imputation by Rivera to Esquivel of the above-quoted utterance may have been an honest mistake. We can discern the possibility that Rivera mistook Jacutan or another for Esquivel when the speaker made a proposal to do away with the drivers.lawphil.net Whatever the case, a thorough analysis of the record discloses that Esquivel's conviction rests on a slender and shaky foundation. The case for the prosecution was not presented with the care and thoroughness which the gravity of the offense demanded. The evidence was presented in a slipshod manner. No efforts seems to have been exerted to amplify and cement with positive and unequivocal assurances and details what appeared to be casual and loose references to the accused's supposed intervention in the crime. In this connection it may not be out of place to bring to the attention of prosecuting attorneys the absolute necessity of laying before the court the pertinent facts at their disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in their evidence, to the end that the court's mind may not be tortured by doubts, that the innocent may not suffer and the guilty not escape unpunished. Obvious to all, this the prosecution's prime duty to the court, to the accused, and to the state. Amado Basco's participation in the crime as revealed by Rivera's and Navarro's testimony is such as to be beyond any possibility of misapprehension. The witnesses' credibility is put in issue as a question of black and white. The trial court stated as its firm conviction that this appellant was a coauthor of the heinous crime. Our review of the evidence leads us beyond doubt to the same conclusion. Over contradictions on some details, the two principal witnesses are agreed and categorical in the affirmation that Basco shared in the planning of carrying out the robbery; that he was on of the co-conspirators who came to Manila and enticed the victims into Nueva Ecija, riding in one of the jeeps; and that it was he who ordered that the drivers' hands be tied, and he was one of the gang who killed them. The fact that the witnesses refrained from implicating Esquivel in the same manner that they did Basco, with no discoverable interest in shielding the former and putting more blame on the latter than was his, underscores their even temper and restraint from exaggeration. The Solicitor General recommends the maximum penalty. The writer of his opinion agrees with this recommendation, but majority of the Court voted for unqualified affirmation, but majority of the Court voted for unqualified affirmance of the sentence imposed on Basco by the trial court. Hence, the

judgment as to Basco will be and it is affirmed, with one-half of the costs of appeal, except that the indemnity for each set of heirs shall be P6000 instead of P2,000. The judgment against Esquivel is reversed with one-half of the costs charged de oficio. G.R. No. 70332-43 November 13, 1986 GENEROSO TRIESTE, SR., petitioner, vs. SANDIGANBAYAN (SECOND DIVISION), respondent. Arturo M. de Castro for petitioner. The Solicitor General for respondent. ALAMPAY, J.: The present case relates to an appeal by way of a Petition for Review of the decision promulgated on November 6, 1984, by the Sandiganbayan convicting the herein petitioner, Generoso Trieste, Sr., of twelve (12) separate violations of Section 3 paragraph (h) of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices - Act, which petitioner were accused of in Criminal Cases Nos. 6856-6867 of said Court. Petitioner's motion for reconsideration and/or new trial was denied by the respondent Sandiganbayan under its Resolution of March 11, 1985. The twelve (12) separate Informations filed by the Tanodbayan against the herein petitioner for violation of Section 3 (h) of the Anti-Graft Law are all similarly worded as the information presented in Criminal Case No. 6856 which is hereunder quoted: That on or about the month of July, 1980 and some time subsequent thereto, in the municipality of Numancia, Aklan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, being then the Municipal Mayor and member of the Committee on Award of the Municipality of Numancia, Aklan and as such, had administrative control of the funds of the municipality and whose approval is required in the disbursements of municipal funds, did then and there wilfully and unlawfully have financial or pecuniary interest in a business, contract or transaction in connection with which said accused intervened or took part in his official capacity and in which he is prohibited by law from having any interest, to wit the purchases of construction materials by the Municipality of Numancia, Aklan from Trigen Agro-Industrial Development Corporation, of which the accused is the president, incorporator, director and major stockholder paid under Municipal Voucher No. 211-90-10-174 in the amount of P558.80 by then and there awarding the supply and delivery of said materials to Trigen Agro-Industrial Development Corporation and approving payment thereof to said corporation in violation of the Anti-Graft and corrupt Practices Act. except only as to the dates of the commission of the offense, voucher numbers, and amounts involved. Criminal Cases Nos. 6856, 6857, 6858, 6859, 6860. 6861, and 6862 were allegedly committed in July, 1980; Criminal

117

Cases Nos. 6863 and 6864, in August, 1980; and Criminal Cases Nos. C-865, 6866 and 6867 in October, 1980. The separate vouchers involved in the twelve (12) cases are said to be the following: Crim. Case #6856, Vchr #211-90-10-174 at P558.80 Crim. Case #6857, Vchr #211-80-10-187 at 943.60 Crim. Case #6858, Vchr #211-80-10-189 at 144.00 Crim. Case #6859, Vchr #211-80-10-190 at 071.30 Crim. Case #6860, Vchr #211-80-10-191 at 270.00 Crim. Case #6861, Vchr #211-80-10-232 at 1,820.00 Crim. Case #6862, Vchr #211-80-10-239 at 1,085.80 Crim. Case #6863, Vchr #211-80-10-407 at 150.00 Crim. Case #6864, Vchr #211-80-12-494 at 500.00 Crim. Case #6865, Vchr #211-81-04-61 at 840.00 Crim. Case #6866, Vchr #211-81-04-62 at 787.00 Crim. Case #6867, Vchr #211-81-04-63 at 560.00 T o t a l - - - - P7,730.50 (Consolidated Comment, pg. 4; Rollo, 325) After trial, the Sandiganbayan rendered the challenged decision dated November 6, 1984, convicting the petitioner in all the twelve (12) criminal cases, (Rollo, pp. 324-325) and in each case he was sentenced,"...to suffer the indeterminate penalty of imprisonment ranging from THREE (3) YEARS and ONE (1) DAY as the minimum, to SIX (6) YEARS and ONE (1) DAY as the maximum, to further suffer perpetual disqualification from the public office, and to pay the cost of the action." (pp. 37-40, Decision; Rollo, 322). After the petition for review was filed in this case and pending the submission by respondent of its comment to the petition, herein petitioner presented to this Court on June 7, 1985, an urgent petition to lift the order of the Sandiganbayan dated September 12, 1983, suspending him from Office as the elected Municipal Mayor of Numancia, Aklan. His term was to expire in 1986. No objection to the petition for the lifting of the suspension order was interposed by the Solicitor General. Accordingly, and pursuant to the resolution of this Court dated October 1, 1985, petitioner's preventive suspension was lifted and his reinstatement as Municipal Mayor of Numancia, Aklan was ordered to take effect immediately. A supplemental petition, dated October 10, 1985, was later filed by petitioner's new counsel in collaboration with the original counsel on record of petitioner. In this supplemental

pleading, it was vigorously stressed that the petitioner did not, in any way, intervene in making the awards and payment of the purchases in question as he signed the voucher only after all the purchases had already been made, delivered and paid for by the Municipal Treasurer. It was further pointed out that there was no bidding at all as erroneously adverted to in the twelve informations filed against herein petitioner because the transactions involved were emergency direct purchases by personal canvass. Upon leave of the Court given, the former Solicitor General filed a consolidated comment dated November 4,1984, to the original petition filed in this case dated April 30, 1985 as well as on the supplemental petition dated October 10, 1985. He argued the dismissal of the petition on the ground that the same raise factual issues which are, therefore, nonreviewable (Consolidated Comment, pg. 20; Rollo, 341). The submission made by the Office of the Solicitor General in the Consolidated Comment dated November 4, 1986, are hereunder quoted: xxx xxx xxx The impugned decision convicted petitioner for violation of Section 3 (h), paragraph (h) of the Anti-Graft and Corrupt Practices Act which reads as follows: SEC. 3. Corrupt Practices of Public Officers. - In addition to acts or omissions of public officers already penalized by existing laws, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx (h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. The elements essential in the commission of the crime are: a) The public officer has financial or pecuniary interest in a business, contract or transaction; b) In connection with which he intervenes in his official capacity. Concurrence of both elements is necessary as the absence of one will not warrant conviction. (Rollo, pp. 338-339). The earlier view taken by the Solicitor General's Office was that petitioner's evidence of divestment of interest in Trigen 'Corporation, which is said to have been effected on February 25, 1980, before the petitioner assumed the Mayorship, should have been presented at the earliest opportunity before the Tanodbayan and because this was not done by him the resolution of the Tanodbayan finding a prima facie case against petitioner should be sustained. Furthermore, petitioner was faulted because the transfer of his interest in the corporate stock of Trigen Corporation should have been recorded in the Securities and Exchange Commission but no evidence of this sort, was presented. The consolidated comment also played up the advertisement of Trigen Corporation in the program of the Rotary Club of

118

Kalibo, Aklan, showing the printed name of petitioner as the President-Manager of the said corporation. (Consolidated Comment; Rollo, pp. 340-341) Petitioner filed a Reply controverting the allegations and arguments recited in the aforestated Consolidated Comment of the Solicitor General. After considering the pleadings filed and deliberating on the issues raised in the petition and supplemental petition for review on certiorari of the decision of the Sandiganbayan, as well as the consolidated comment and the reply thereto filed by petitioner's counsel, the Court in its resolution of January 16, 1986, gave due course to the petition and required the parties to file their respective briefs. Petitioner's exhaustive and well-reasoned out Brief which was filed with the Court on April 14, 1986, raised the following legal questions. xxx xxx xxx From the foregoing recital of facts, the following legal questions arise: 1. Does the mere signing by a Municipal Mayor of municipal vouchers and other supporting papers covering purchases of materials previously ordered by the Municipal Treasurer without the knowledge and consent of the former, subsequently delivered by the supplier, and, thereafter paid by the same Municipal Treasurer also without the knowledge and consent of the Municipal Mayor, constitute a violation of the provisions of Section 3 (h) of Rep. Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act? 2. Does the mere signing of the mere documents above constitute the kind of intervention of taking part in (his) official capacity within the context of the abovementioned law? 3. Was damage or prejudice, as an element of the offense under Section 3 (h) of the said law, caused to the Government or the Municipality of Numancia as a result of the contracts in question and as a corollary thereto, was undue advantage and gained by the transacting corporation? 4. Was there divestment on the part of the herein petitioner of his shares in Trigen Agro-Industrial Development Corporation long before the questioned transactions? (Appellant's Brief, page 15) It was then discus and argued by the petitioner that the prosecution failed to establish the presence of all the elements of the offense, and more particularly to adduce proof that petitioner has, directly or indirectly, a financial or pecuniary interest in the imputed business contracts or transactions. Discussion of petitioner's arguments in this regard will not however, be recited anymore as this was obviated when a new Solicitor General, after seeking and obtaining several extensions of time to file its Brief in this case at bar, filed on October 7, 1986, a "Manifestation For Acquittal" (in lieu of the People's Brief). Rollo, 293).

The new Solicitor General's Office after adopting the statement of facts recited in the consolidated comment of the former Solicitor General's Office moved for the acquittal of the petitioner, upon acknowledging and concluding that: xxx xxx xxx Petitioner has divested his interest with Trigen Petitioner sought to establish that before he assumed office as mayor on March 3, 1980, he had already sold his shares with Trigen to his sister Mrs. Rosene TriesteTuason. The sale was made by corresponding indorsements to her stock certificate which was duly recorded in the stock and transfer book of the corporation. Respondent Sandiganbayan however doubts the sale because the same was not reported to the SEC. SEC records, as the prosecution evidence show, do not reflect the sale and petitioner still appears as the firm's President. The prosecution's evidence to establish non-divestment of petitioner's interest with Trigen is weak. Anyway, Trigen has not updated its reports to the SEC since 1976. It have not even submitted its financial annual report ever since. Absence of the sales report in the SEC does not mean that the sale did not take place. Reporting the sale is not a mandatory requirement. Sales of stocks need not be reported to SEC In any event, the law only requires submission of annual financial reports, not sales or disposal of stocks (Section 141, Corporation Code of the Philippines). Upholding the evidence of petitioner's divestment of his interest with Trigen would necessarily allow him to act freely in his official capacity in the municipality's dealings or transactions with Trigen. That in itself is sufficient to acquit him of the crimes charged. (Rollo, pp. 299-300). In the matter of the alleged intervention of petitioner, the Office of the Solicitor General itself subscribes to and on its own volition place on record the following observations: Prosecution failed to prove charges; evidence discloses absence of bidding and award The prosecution's lone witness, Treasurer Aniceto Vega, testified that there never was a public bidding conducted because all the transactions were made by direct purchases from Trigen. Q. In other words, in all these transactions there never really was any public bidding?

119

A. Yes, Sir. There was no public bidding. Q. And these purchases were made by direct purchases from the establishment of Trigen? A. Yes, Sir. (pp. 36-37, Tsn., Oct. 26, 1983) In the absence of a public bidding and as emphatically declared by the prosecution's sole witness Vega that all the transactions were on direct purchases from Trigen, how can one ever imagine that petitioner has awarded the supply and delivery of construction materials to Trigen as specifically charged in the twelve (12) informations? The charges are of course baseless and even contradict the evidence of the prosecution itself. Even the respondent Court finally found that petitioner did not intervene during the bidding and award, which of course is a false assumption because of Vega's testimony that there was no public bidding at all. Respondent Court said: . . . . In short, accused's intervention may not be present during the bidding and award, but his liability may also come in when he took part in said transactions such as signing the vouchers under certifications 1, 2 and 3 thereof, to make it appear that the transactions were regular and proper. (Resolution dated March 11, 1985 denying petitioner's motion for reconsideration/new trial, page 7). No evidence to prove petitioner approved payment Now, did petitioner intervene by approving payments to Trigen as also charged in the information? Can there be intervention after payment. Vega testified that petitioner signed the twelve (12) municipal vouchers (Exhibits A to L) for the purchase and payment of construction materials. It was sometime after delivery of the construction materials that he (Vega) signed and paid the twelve (12) -municipal vouchers (pages 5 to 7), decision of respondent Sandiganbayan dated November 2, 1984). The prosecution has not presented evidence to show as to when petitioner signed the twelve (12) municipal vouchers. But it can safely be assumed as a matter of procedure that petitioner had signed the voucher after Treasurer Vega signed and paid them., (Rello, pp. 301303) xxx xxx xxx Testimonial and documentary evidence confirms that petitioner signed vouchers after payment

Additional facts which respondent Court failed to consider and which could have altered the outcome of the case in the following uncontroverted testimony of Josue Maravilla: Q. When these municipal vouchers were prepared by the municipal treasurer, as you said, and then presented to Mayor Trieste for his signature, were the purchases in question already paid? A. They had already been paid for, sir. Q. Previously, prior to the signature of Mayor Trieste? A. Yes, sir. A.J. ESCAREAL: Q. Under what authority were they paid? A. Under official receipt issued by Trigen. Q. Who authorized the payment? A. The municipal treasurer who paid the materials. ATTY. CONSULTA: Q. You said they had already been paid for. Do you know of any receipts issued by Trigen to indicate that at the time these municipal vouchers were signed by Mayor Trieste, the materials had already been delivered and paid by the municipality to Trigen? xxx xxx xxx A. Yes, sir Q. Now, what exhibits particularly do you know were issued by Trigen to indicate that payments were made prior to the signing of the municipal vouchers by Mayor Trieste?

120

A. Exhibits A, G, B, F, C, D, Exhibit I and Exhibit H. xxx xxx xxx Q. Now, Mr. Maravilla, aside from these prosecution's exhibits which are Trigen receipts showing payments long before the municipal vouchers were prepared, what can you say about the other municipal vouchers in this case in reference to payments made by Trigen to the municipality? ESCAREAL: Payment made by Trigen? ATTY. CONSULTA: I am sorry, Your Honor, made to Trigen by the municipality? A. Official receipts issued by Trigen also indicate that when municipal vouchers marked Exhibits E, B, C, D, F, G, H, I were prepared, they had already been delivered and the amounts indicated therein were already prepared by the municipal treasurer. Q. Did you say already made by the municipal treasurer-the amounts were already paid by the municipal treasurer? A. Already paid. Q. Who disbursed the funds evidenced by the Trigen official receipts? A. The municipal treasurer, then Mr. Vega. Q. Now, do you know why Mr. Vega asked that those municipal vouchers be nevertheless signed in spite of the fact that he knew that the amounts had already been

disbursed and paid by him to Trigen? A. He said that the municipal vouchers for record purposes is necessary to be signed by the mayor. (Tsn., Mar. 5, 1984, pp. 1949). Inasmuch as Treasurer Vega signed and paid the vouchers after the materials were delivered, petitioner's signature on the vouchers after payment is not, we submit the kind of intervention contemplated under Section 3(h) of the Anti-Graft Law. xxx xxx xxx What is contemplated in Section 3(h) of the anti-graft law is the actual intervention in the transaction in which one has financial or pecuniary interest in order that liability may attach. (Opinion No. 306, Series 1961 and Opinion No. 94, Series 1972 of the Secretary of Justice). The official need not dispose his shares in the corporation as long as he does not do anything for the firm in its contract with the office. For the law aims to prevent the don-tenant use of influence, authority and power (Deliberation on Senate Bill 293, May 6, 1959, Congressional Record, Vol. 11, page 603). There is absolutely no evidence that petitioner had, in his capacity as Mayor, used his influence, power, and authority in having the transactions given to Trigen. He didn't ask anyone-neither Treasurer Vega nor Secretary Maravilla for that matter, to get the construction materials from Trigen. Trigen did not gain any undue advantage in the transaction Petitioner should not be faulted for Trigen's transaction with the municipality, which by the way, has been dealing with it even before petitioner had assumed the mayorship on March 3, 1980. Personal canvasses conducted found that Trigen's offer was the lowest, most reasonable, and advantageous to the municipality. . . . (Rollo, pp. 307-308; Emphasis supplied). It is also an acknowledged fact that there was no complaint for non-delivery, underdelivery or overpricing regarding any of the transactions. Considering the correct facts now brought to the attention of this Court by the Solicitor General and in view of the reassessment made by that Office of the issues and the evidence and the law involved, the Court takes a similar view that the affirmance of the decision appealed from cannot be rightfully sustained. The conscientious study and thorough analysis made by the Office of the Solicitor General in this case truly reflects its consciousness of its role as the People's Advocate in the administration of justice to the end that the innocent be equally defended and set free just as it has the

121

task of having the guilty punished. This Court will do no less and, therefore, accepts the submitted recommendation that the decision and resolution in question of the respondent Sandiganbayan be reversed and that as a matter of justice, the herein petitioner be entitled to a judgment of acquittal. WHEREFORE, the decision rendered by the Sandiganbayan, dated November 2, 1984, in Criminal Cases Nos. 6856 to 6867, finding the herein petitioner, Generoso Trieste, Sr. guilty of the violations of Section 3 paragraph (h) of Republic Act 3019, as amended, is hereby set aside and reversing the appealed judgment, a new judgment is now rendered ACQUITTING Generoso Trieste, Sr., of said offenses charged against him with costs de oficio. SO ORDERED. G.R. No. L-35133 May 31, 1974 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAYMUNDO MADERA @ "Mundo", MARIANITO V. ANDRES @ "Totoy", GENEROSO ANDRES @ "Ross",defendants-appellants. Francisco G. Munsayac, Sr. for appellant Madera. Apolinar F. Tolentino and Jose C. Vitug for appellant Andres, et al. Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Dominador L. Quiroz and Solicitor Sinfronio I. Ancheta for appellee.

Juanita Bana, a son of the victim, testified that he was awakened by the gunfire and saw the appellant Raymundo Madera standing on the first step of their stairs holding a .45 caliber firearm. He also saw the appellants Marianito Andres and Generoso Andres just behind the appellant Madera, at a distance of 1 1/2 meters from the stairs. Bernarda Bana, wife of the victim, declared that she saw Raymundo Madem as the one who shot her husband with a foot-long firearm, and appellants Marianito Andres and Generoso Andres were then with Madera. In addition to the testimonies of these two witnesses, the prosecution presented the dying, declaration of the victim Elino Bana. The trip from the house of Elino Bana to the Municipal Building took only about thirty minutes. On the way, they were met by policeman Ambrosio Feliciano from Gabaldon who was fetched from his house by Barrio Captain Emiliano Jornadal of Bantug to look into the shooting incident. Upon reaching the Municipal Building, Patrolman Feliciano told Elino Bana that he would have to take down his written statement regarding the shooting incident, and the latter agreed. The latter was then in agony. It was then 3:00 o'clock in the morning. In said dying declaration, he was asked who shot him and the answer was: Mundo Madera and two others whom he could not recognize. The lower court was correct in refusing to give credence to the testimony of Patrolman Feliciano that while they were on their way to the Municipal Building, Elino Bana told him that he could not identify the persons who shot him. Said policeman has been an investigator in the police force since 1964. He should have asked Elino Bana while he was giving his dying declaration in the Municipal Building why he said earlier that he did not know who shot him. But Patrolman Feliciano did not do this. It must be noted that not only Patrolman Feliciano but also Francisco Viloria, a witness to the dying declaration, testified to its lawful execution. The fact that Juanito Bana and Bernarda Bana failed to reveal right away the identities of the appellants to the Victim himself and to their relatives Conrado Bana and Francisco Viloria, does not militate against their credibility. There is no evidence on record that they were asked by their relatives about the identity of the appellants. Had they been asked, they would have readily revealed appellants' identities as they did to the Chief of Police and Municipal Mayor of Gabaldon only a few hours after the fateful incident, during a formal investigation of the case in the Office of the Chief of Police when and where they executed their respective sworn statements. In their respective written statements taken on April 20, 1970, subscribed and sworn on the same date before the Mayor of Gabaldon, Bernardo Bana and Juanito Bana categorically stated that Elino Bana was shot by Raymundo Madera @ Mundo, while Ross and Totoy Andres were downstairs. Juanito Bana was then living with his parents. He must be familiar with their house. He testified on direct examination that he slept in the balcony of their house. On cross examination, he said that he slept inside their house. That does not show any inconsistency in his testimony, because on further questioning, he said that the balcony referred to by him was inside their house. Yes, he said that after he heard the shots, he jumped to the ground through the back portion of their house. The falsity of this statement has not been shown by the defense. The pictures presented by it which apparently show that there was no such opening, can be explained by the fact that the tall grasses could obscure the back portion of the house where the kitchen door was located.

FERNANDEZ, J.:p This case is now before Us on appeal of the three appellants from a decision of the Circuit Criminal Court 1 finding them guilty of the crime of murder, and sentencing them to suffer the penalty of reclusion perpetua and to jointly and severally indemnify the heirs of the victim in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the cost proportionately. There is no question that at about 2:00 o'clock in the early morning of April 20, 1970, three men barged at the doorstep of the house of the victim Elino Bana in Sitio Baag, Barrio Bantug, Gabaldon, Nueva Ecija. The gunman, standing on the first rung of the stairs of the house, fired a volley of shots from a .45 caliber gun at Elino Bana who was then sleeping on the floor of his house near the stairs. Two gunshot wounds were inflicted on the victim but the fatal one was the one that hit him on the abdominal region. Elino Bana did not die immediately. He stood up and told his wife to call for his brother Conrado who lives not far away from their house. The victim's wife fetched Conrado; but when they returned, the wounded man was no longer at home for he was already brought to the Municipal Building of Gabaldon. He was carried by his son-in-law, Francisco Viloria, with the assistance of some people. From the Municipal Building, he was brought to the Nueva Ecija General Hospital, but he died on the way that same day, April 20,1970. We affirm the lower court's finding that the prosecution has proven beyond reasonable doubt that appellant Raymundo Madera was the one who fired the shots at the victim Elino Bana, one of which was the fatal shot, and that appellants Marianito Andres and Generoso Andres were with Madera at the time.

122

Juanito Bana admitted that he was gripped with fear when he heard the burst of gunfire. But that would not prove that he failed to recognize the appellants. An excited person may overlook the presence of another whom he would otherwise have observed. Under some circumstance, however, excitement may whet the attention to a keen edge. In some other cases, it has been observed, in effect, that the emotion incident to the impending peril may not be the kind of excitement which confuses, but that which focalizes the faculties to scrutinize. the circumstance of the threatened danger in order to avoid it. 2 The appellants asserted in their briefs 3 that "the evidence on record does not show that there was a moon shining in the early morning of April 20, 1970, at Barrio Bantug, Gabaldon, Nueva Ecija;" that it was then "a moonless night;" hence, Juanito Bana and Bernarda Bana could not have recognized the appellants. This position is untenable. Why? The Court can take judicial notice of the "laws of nature" 4 and, under this rule, of the time when the moon rises or sets on a particular day. 5 This not withstanding and for certainty, We took it unto Ourselves to get a certification from the Weather Bureau 6 which shows that the moon was bright at the time of the shooting incident. It reads: To whom It May Concern: This is to certify that, based on the computations made by this office, the following astronomical data for Gabaldon, Nueva Ecija are true and correct: 1. that the moon rose at 4:11 P.M. on April 19, 1970 and set the following day, April 20, at 4:27 A.M.; 2. that at 2:00 A.M. on April 20, 1970, the moon was at an altitude of 34 degrees above the western horizon with bearing of South 73 degrees West; 3. and that the moon was illumined 97% at 2:00 A.M. on April 20, 1970, full moon having occurred at 00.21 A.M. on April 22,1970. This certification is issued upon the request of Mr. Estanislao Fernandez, Associate Justice, Supreme Court, Manila. For the Administrator: (Sgd) Simeon V. Inciong SIMEON V. INCIONG Chief, Astronomical Division It was not necessary for the prosecution to prove motive on the part of the appellants for there is no doubt as to their identities. It is true that, according to Maximo A. Obra, the forensic chemist of the NBI, appellant Raymundo Madera was found negative in a paraffin test. But Obra himself admitted that, the paraffin test having been conducted fourteen days after the incident, the test could have given a negative result even if the appellant had fired a gun fourteen days earlier, because the nitrate deposits on his hands could have been

washed off by washing or could have been removed by perspiration. The defense of the appellants was alibi. But said defense cannot prevail over the positive identification of the appellants by the prosecution witnesses. The house of appellant Raymundo Madera is just about 400 meters away from that of the victim Elino Bana. We need not discuss further the defense of alibi of the appellants Marianito Andres and Generoso Andres because the Solicitor General recommended their acquittal. And We agree. The fact that these two appellants were standing behind appellant Madera when the latter fired shots at Elino Bana, did not make them liable for what Madera did, there being no proof whatsoever of any conspiracy among the three appellants. They were not armed. They did nothing to help Madera. Their mere passive presence at the scene of the crime did not make them liable either as co-principals or accomplices. In one of the latest decisions of this Court, penned by Justice Felix Q. Antonio, We held: It is well to recall the settled rule that conspiracy presupposes the existence of a preconceived plan or agreement and in order to establish the existence of such a circumstance, it is not enough that the persons supposedly engaged or connected with the same be present when the crime was perpetrated. There must be established a logical relationship between the commission of the crime and the supposed conspirators, evidencing a clear and more intimate connection between and among the latter, such as by their overt acts committed in pursuance of a common design. Considering the farreaching consequences, of criminal conspiracy, the same degree of proof required for establishing the crime is required to support a finding of its presence that is, it must be shown to exist as clearly and convincingly as the commission of the offense itself. The evidence fails to meet such requirements. To hold him liable, upon the other hand, as an accomplice, it must be shown that he had knowledge of the criminal intention of the principal, which may be demonstrated by previous or simultaneous acts which contributes to the commission of the offense as aid thereto whether physical or moral. As aptly stated in People v. Tamayo: "It is an essential condition to the existence of complicity, not only that there should be a relation between the acts done by the principal and those attributed to the person charged as accomplice, but it is further necessary that the latter, with knowledge of the criminal intent, should cooperate with the intention of supplying material or moral aid in the execution of the crime in an efficacious way." ... From our view of the evidence it has not been convincingly established that appellant cooperated in the commission of the offense, either morally, through advice, encouragement or agreement or materially through external acts indicating a manifest intent of supplying aid in the perpetration of the crime in an efficacious way. Such circumstances being

123

absent, his mere passive presence at the scene of the crime certainly does not make him either a co-principal or an accomplice in the commission of the offense. 7 This is good a time as any to emphasize upon those in charge of the prosecution of criminal cases that the prosecutor's finest hour is not when he wins a case with the conviction of the accused. His finest hour is still when, overcoming the advocate's natural obsession for victory, he stands up before the Court and pleads not for the conviction of the accused but for his acquittal. For indeed, his noble task is to prosecute only the guilty and to protect the innocent. We, therefore, commend Solicitor General Estelito P. Mendoza, Assistant Solicitor Dominador L. Quiroz and Solicitor Sinfronio I. Ancheta for having correctly recommended the acquittal of the appellants Marianito Andres and Generoso Andres. WHEREFORE, the decision appealed from is hereby affirmed with respect to the appellant Raymundo Madera alias "Mundo", with 1/3 of the cost charged against him; and it is hereby reversed as regards appellants Marianito Andres alias "Totoy" and Generoso Andres alias "Ross", who are hereby acquitted of the crime charged with proportionate costs de oficio. Their immediate release from confinement is hereby ordered unless they are held for another legal cause.

124

G.R. No. 127107 October 12, 1998 PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners, vs. HON. SESINANDO VILLON in his capacity as Presiding Judge of the Regional Trial Court of Pampanga, Branch 54; HON. TEOFISTO GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO YABUT, SERVILLANO YABUT, MARTIN YABUT and FORTUNATO MALLARI, respondents. DAVIDE, JR., J.: The issues raised by petitioners in their Memorandum 1 and by the Office of the Solicitor General in its Comment 2in this special civil action for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court filed by petitioners, children of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of Masantol, Pampanga, may be summarized as follows: A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR COMMITTED GRAVE ABUSE OF DISCRETION IN: (1) GIVING DUE COURSE TO THE MOTION FOR REINVESTIGATION BY PRIVATE RESPONDENTS AGAINST WHOM WARRANTS OF ARREST WERE ISSUED BUT WHO HAD NOT YET BEEN BROUGHT INTO THE CUSTODY Of THE LAW; and (2) FILING THE INFORMATION FOR HOMICIDE DESPITE KNOWLEDGE OF THE APPEAL FROM SAID PROSECUTOR'S RESOLUTION TO THE OFFICE OF THE SECRETARY OF JUSTICE. B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF JURISDICTION IN PROCEEDING WITH THE ARRAIGNMENT AND IN DENYING PETITIONERS' MOTIONS TO SET ASIDE ARRAIGNMENT AND RECONSIDERATION THEREOF DESPITE HIS KNOWLEDGE OF THE PENDENCY OF THE APPEAL AND THE SUBMISSION OF VITAL EVIDENCE TO PROVE THAT MURDER AND NOT HOMICIDE WAS COMMITTED BY THE ACCUSED. C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN RECONSIDERING HIS ORDER FINDING THAT THE CRIME COMMITTED WAS MURDER AND DIRECTING THE PROVINCIAL PROSECUTOR TO AMEND THE INFORMATION FROM HOMICIDE TO MURDER. The records and the pleadings of the parties disclose the antecedents. On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay San Nicolas, Masantol, Pampanga. On 5 November 1995, a complaint for Murder was filed before the Municipal Circuit Trial Court MCTC) of Macabebe-Masantol in Macabebe, Pampanga, by SPO1 Renato Layug of the Masantol Police Station against private respondents Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino Mandap, Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Fortunato Mallari, Jesus de la Cruz, Joselito Miranda, SPO3 Gilberto Malabanan, Aniano Magnaye, Vladimir Yumul, a certain "Danny," and a certain "Koyang/Arding." The complaint was docketed as Criminal Case No. 95-360. After conducting a preliminary examination in the form of searching questions and answers, and finding probable cause, Judge Designate Serafin B. David of the MCTC issued warrants for the arrest of the accused and directed them to file their counteraffidavits. Only accused Evelino David, Justino Mandap, Juan Magat and Francisco Yambao were arrested; while only Francisco Yambao submitted his counter affidavit. 3

On 1 December 1995, after appropriate proceedings, Judge David issued a Resolution 4 in Criminal Case No. 95-360 finding reasonable ground to believe that the crime of murder had been committed and that the accused were probably guilty thereof. His findings of fact and conclusions were as follows: That on or about November 3, 1995, all the accused under the leadership of Mayor Santiago "Docsay" Yabut, including two John Does identified only as Dan/Danny and Koyang/Arding, went to Masantol, Pampanga for the purpose of looking for a certain PO3 Virgilio Dimatulac. At first, the accused, riding on [sic] a truck, went to the Municipal Hall of Masantol, Pampanga inquiring about PO3 Virgilio Dimatulac. Thereafter, they went to the house of Mayor Lacap for the purpose of inquiring [about] the [the location of the] house of PO3 Virgilio Dimatulac, until finally, they were able to reach the house of said Virgilio Dimatulac at San Nicolas, Masantol, Pampanga. Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused were all riding, stopped and parked in front of the house of said PO3 Virgilio Dimatulac, some of the accused descended from the truck and positioned themselves around the house while others stood by the truck and the Mayor stayed [in] the truck with a bodyguard. Accused Billy Yabut, Kati Yabut and Francisco Yambao, went inside the house of Virgilio Dimatulac [and] were even offered coffee. [A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio Dimatulac to go down to see the Mayor outside in front of his house to say sorry. [W]hen Virgilio Dimatulac went down his house, suddenly [a] gun shot was heard and then, the son of Virgilio Dimatulac, Peter Paul, started to shout the following words: "What did you do to my father?!" One of the men of Mayor "Docsay" Yabut shot Virgilio Dimatulac, and as a consequence, he died; and before he expired, he left a dying declaration pointing to the group of Mayor "Docsay" Yabut as the one responsible. That right after Virgilio Dimatulac was shot, accused "Docsay" Yabut ordered his men to go on board the truck and immediately left away leaving Virgilio Dimatulac bleeding and asking for help. On their way home to Minalin, accused Santiago "Docsay" Yabut gave money to accused John Doe Dan/Danny and Francisco "Boy" Yambao was asked to bring the accused John Doe to Nueva Ecija which he did.

125

Further, accused Santiago "Docsay" Yabut told his group to deny that they ever went to Masantol. The court, after having conducted preliminary examination on the complainant and the witnesses presented, [is] satisfied that there is a [sic] reasonable ground to believe that the crime of murder was committed and that the accused in conspiring and confederating with one another are probably guilty thereof. Circumstantial evidence strongly shows the presence of conspiracy. That in order not to frustrate the ends of justice, warrants of arrest were issued against Santiago Yabut, Martin Yabut, Servillano Yabut, Francisco Yambao, Avelino David, Casti David, Catoy Naguit, Fortunato Mallari, Boy dela Cruz, Lito Miranda and Juan Magat with no bail recommended. However, with respect to accused Dan/Danny and Koyang/Arding, the court directed the police authorities to furnish the court [a] description personae of the accused for the purpose of issuing the needed warrant of arrest. The accused were furnish [sic] copies of the complaint and affidavits of witnesses for them to file their counter-affidavits in accordance to [sic] law. As of this date, only accused Francisco "Boy" Yambao filed his counter-affidavit and all the others waived the filing of the same. A close evaluation of the evidence submitted by the accused Francisco Yambao which the court finds it [sic] straightforward and more or less credible and seems to be consistent with truth, human nature and [the] natural course of things and lack of motives [sic], the evidence of guilt against him is rather weak [compared to] the others, which [is why] the court recommends a cash bond of P50,000.00 for his provisional liberty, and the court's previous order of no bail for said accused is hereby reconsidered. WHEREFORE, premises considered, the Clerk of Court is directed to forward he entire records of the case to the Office of the Provincial Prosecutor of Pampanga for further action, together with the bodies of accused Francisco Yambao and Juan Magat to be remanded to the provincial Jail of Pampanga. 5 (emphasis supplied) In a sworn statement, 6 petitioner Peter Paul Dimatulac narrated that Mayor Santiago Yabut, accompanied by a number of bodyguards, went to the residence of PO3 Virgilio Dimatulac to talk about a problem between the Mayor and Peter Paul's uncle, Jun Dimatulac. Virgilio warmly welcomed the group and even prepared coffee for them. Servillano and Martin Yabut told Virgilio to come down from his house and apologize to the Mayor, but hardly had Virgilio descended

when Peter Paul heard a gunshot. While Peter Paul did not see who fired the shot, he was sure it was one of Mayor Yabut's companions. Peter Paul opined that his father was killed because the latter spoke to the people of Minalin, Pampanga, against the Mayor, Peter Paul added in a supplemental statement (Susog na Salaysay) 7 that he heard Mayor Yabut order Virgilio killed. It his Sinumpaang Salaysay, 8 Police Officer Leopoldo Soriano of the Masantol Municipal Police Station in Masantol, Pampanga, declared that on 3 November 1995, between 3:30 and 4:00 p.m., while he was at the polite station, three men approached him and asked for directions to the house of Mayor Epifanio Lacap. Soriano recognized one of the men as SPO1 Labet Malabanan of Minalin, Pampanga. The group left after Soriano gave them directions, but one of the three returned to ask whether PO3 Virgilio Dimatulac was on duty, to which Soriano replied that Dimatulac was at home. The group left on board a military truck headed for San Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray received a telephone call at the police station reporting that someone had shot Virgilio Dimatulac. Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores conducted a reinvestigation. However, it is not clear from the record whether she conducted the same motu proprio or upon motion of private respondents Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter YABUTs). All of the accused who had not submitted their counter-affidavits before the MCTC, except accused "Danny" and "Koyang/Arding," submitted their counter-affidavits to Assistant Provincial Prosecutor Alfonso Flores. In her Resolution dated 29 January 1996, 9 Assistant Provincial Prosecutor Alfonso-Flores found that the YABUTs and the assailant Danny, to the exclusion of the other accused, were in conspiracy with one another, but that the offense committed was only homicide, not murder. In support of such finding, Alfonso-Flores reasoned thus: The complainant in this case charges the crime of Murder qualified by treachery. It must be noted that to constitute treachery, two conditions must be present, to wit, 1) the employment of the [sic] means of execution were give [sic] the person attacked no opportunity to defend himself or to retaliate; and 2) the means of execution were deliberately or consciously adopted . . . . In the instant case, the presence of the first requisite was clearly established by the evidence, such that the attack upon the victim while descending the stairs was so sudden and unexpected as to render him no opportunity to defend himself or to retaliate. However, the circumstances, as portrayed by witness Peter Paul Dimatulac, negate the presence of the second requisite. According to the said witness, the victim was already descending when Mayor Yabut commanded the assailant to shoot him, and immediately thereafter, he heard the gunshot. This would therefore show that the assailant did not consciously adopt the position of the victim at the time he fired the fatal shot. The command of Mayor Yabut to shoot came so sudden as to afford no opportunity for the assailant to choose the means or method of attack. The act of Mayor Yabut in giving the command to shoot further bolster[s] the fact that the conspirator did not concert

126

the means and method of attack nor the manner thereof. Otherwise there would have been no necessity for him to give the order to the assailant. The method and manner of attack was adopted by the assailant at the spur of the moment and the vulnerable position of the victim was not deliberately and consciously adopted. Treachery therefore could not be appreciated and the crime reasonably believe[d] to have been committed is Homicide as no circumstance would qualify the killing to murder. Alfonso-Flores then ruled: WHEREFORE, in view of the foregoing, it is hereby recommended that: 1. An information be filed with the proper court charging Santiago, Servillano and Martin all surnamed Yabut, and one John Doe alias Danny as conspirators in the crime of Homicide; 2. The case be dismissed against accused Evelino David, Justino Mandap a.k.a. Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Bladimir Dimatulac, Fortunato Mallari, Aniano Magnaye, Gilberto Malabanan, Jesus dela Cruz and Joselito Miranda. Bail of P20,000.00 for each of the accused is likewise recommended. The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January 1996 and clarificatory questions were propounded only to Peter Paul Dimatulac. On 23 February 1996, before the Information for homicide was filed, complainants, herein petitioners, appealed the resolution of Alfonso-Flores to the Secretary of the Department of Justice (DOJ). 10 They alleged in their appeal that: 1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN RULING THAT THERE WAS NO TREACHERY TO QUALIFY THE CRIME TO MURDER, BUT LIKEWISE ERRED IN NOT APPRECIATING THE PRESENCE OF OTHER QUALIFYING CIRCUMSTANCES, TO WIT: (A) THAT THE ACCUSED COMMITTED THE CRIME WITH THE AID OF ARMED MEN AND WITH THE USE OF A PERSON TO INSURE OR AFFORD IMPUNITY; (B) THAT THE CRIME WAS COMMITTED IN CONSIDERATION OF A PRICE, REWARD, OR PROMISE; (C) THAT THE CRIME WAS COMMITTED ON THE OCCASION OF A DESTRUCTIVE CYCLONE, WHEN THE SUPERTYPHOON "ROSING" WAS RAGING ON NOVEMBER 3, 1995; (D) THAT THE CRIME WAS COMMITTED WITH EVIDENT PREMEDITATION; 2. THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR ERRED IN DISMISSING THE COMPLAINT AGAINST FORTUNATO MALLARI AND FRANCISCO YAMBAO BY RULING OUT CONSPIRACY WITH THE YABUT BROTHERS AS AGAINST FORTUNATO MALLARI AND NOT CHARGING FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER. To refute Alfonso-Flores' finding that the means of execution were not deliberately adopted, petitioners asserted that the meeting of the accused and the victim was not accidental as

the former purposely searched for the victim at the height of a typhoon, while accused Mayor Santiago Yabut even remarked to his co-accused "Danny," "Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka na" (Just stay close to him, you know what to do). Thus, Danny positioned himself near the stairs to goad the victim to come out of his house, while Fortunato Mallari represented to the deceased that the latter was being invited by a certain General Ventura. When the victim declined the invitation by claiming he was sick, accused Servillano Yabut persuaded the victim to come down by saying, "[T]o settle this matter, just apologize to the Mayor who is in the truck." In view of that enticement, the victim came down, while Danny waited in ambush. To emphasize the accused's resolve to kill the deceased, petitioners further narrated that when the deceased ran away after the first shot, the gunman still pursued him, while Mayor Santiago Yabut, who was a doctor, kept away at a safe distance and told everyone in the truck, "Tama na, bilisan ninyo," (That's enough, move quickly) without giving medical assistance to the deceased and without exerting any effort to arrest the gunman. The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of the Appeal. On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a Resolution 11 ordering the release of accused Evelino David, Justino Mandap, Juan Magat and Arturo Naguit (who were then detained) in view of the aforementioned resolution of Alfonso-Flores, which, as stated in the order, the Provincial Prosecutor approved "on February 7, 1996." On 28 February 1996, an Information 12 for Homicide, signed by Assistant Provincial Prosecutor Flores and Provincial Prosecutor Jesus Y. Manarang, was filed before Branch 55 of the Regional Trial Court (RTC) in Macabebe, Pampanga, against the YABUTs and John Doe alias "Danny Manalili" and docketed as Criminal Case No. 96-1667(M). The accusatory portion of the information read as follows: That on or about the 3rd day of November, 1995, in the municipality of Masantol, province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, with deliberate intent to take the life of PO3 Virgilio A. Dimatulac, did then and there wilfully, unlawfully and feloniously shoot the said PO3 Virgilio A. Dimatulac on his abdomen with the use of a handgun, thereby inflicting, upon him a gunshot wound which cause[d] the death of the said victim. All contrary to law. The Information, although dated 29 January 1996 was signed by Provincial Prosecutor Manarang on "2/27/96",i.e., a day before its filing in court. On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55, approved the cash bonds of the YABUTs, each in the amount of P20,000.00, and recalled the warrants for their arrest. 13 On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as private prosecutor, filed two (2) motions with the trial court: (1) a Motion to Issue Hold Departure Order Against All Accuseds 14 [sic]; and an (2) Urgent Motion to Defer Proceedings, 15 copies of which were furnished the Office of the Provincial Prosecutor of Pampanga. The second motion was grounded on the pendency of the appeal before

127

the Secretary of Justice and a copy thereof was attached to the motion. Judge Roura set the motions for hearing on 8 March 1996. 16 On 7 March 1996, Judge Roura ordered the arrest of the remaining accused, Danny Manalili. 17 On 8 March 1996, the YABUTs filed their opposition 18 to the Motion to Issue Hold Departure Order and the Motion to Defer Proceedings. The YABUTs asserted that, as to the first, by posting bail bonds, they submitted to the jurisdiction of the trial court and were bound by the condition therein to "surrender themselves whenever so required by the court, and to seek permission from the court should any one of them desire to travel;" and, as to the second, the pendency of the appeal before the Secretary of Justice was not a ground to defer arraignment; moreover, the trial court had to consider their right to a speedy trial, especially since there was no definite date for the resolution of the appeal. Then invoking this Court's rulings in Crespo v. Mogul 19 and Balgos v. Sandiganbayan, 20 the YABUTs further asserted that petitioners should have filed a motion to defer the filing of the information for homicide with the Office of the Provincial Prosecutor, or sought, from the Secretary of Justice, an order directing the Provincial Prosecutor to defer the filing of the information in court. In a Reply 21 to the opposition, the private prosecution, citing Section 20 of Rule 114 of the Rules of Court, insisted on the need for a hold-departure order against the accused; argued that the accused's right to a speedy trial would not be impaired because the appeal to the Secretary of Justice was filed pursuant to Department Order No. 223 of the DOJ and there was clear and convincing proof that the killing was committed with treachery and other qualifying circumstances not absorbed in treachery; and contended that the accused's invocation of the right to a speedy trial was inconsistent with their filing of various dilatory motions during the preliminary investigation. The YABUTs filed a Rejoinder 22 to this Opposition. On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a Hold Departure Order until "such time that all the accused who are out on bail are arraigned," but denied the Motion to Defer Proceedings as he found no compelling reason therefor, considering that although the appeal was filed on 23 February 1996, "the private prosecution has not shown any indication that [the] appeal was given due course by the Secretary of Justice." Judge Roura also set the arraignment of the accused on 12 April 1996. 23 It would appear that the private prosecution moved to reconsider the order denying the Motion to Defer Proceedings since, on 12 April 1996, Judge Roura issued an Order 24 giving the private prosecutor "ten (10) days from today within which to file a petition for certiorari questioning the order of the Court denying his motion for reconsideration of the order of March 26, 1996." Arraignment was then reset to 3 May 1996. On 19 April 1996, petitioners filed a motion to inhibit Judge Roura 25 from hearing Criminal Case No. 96-1667(M) on the ground that he: (a) hastily set the case for arraignment while the former's appeal in the DOJ was still pending evaluation; and (b) prejudged the matter, having remarked in open court that there was "nothing in the records of the case that would qualify the case into Murder." At the same time, petitioners filed a petition for prohibition 26 with the Court of Appeals docketed therein as CA-G.R. SP No. 40393, to enjoin Judge Roura from proceeding with the arraignment in Criminal Case No. 96-1667(M). On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and Comment 27 with the trial court wherein

he opposed the motion to inhibit Judge Roura; manifested that "there is nothing in the record . . . which shows that the subject killing is qualified into murder;" and announced that he "will no longer allow the private prosecutor to participate or handle the prosecution of [the] case" in view of the latter's petition to inhibit Judge Roura. On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the case transferred to Branch 54 of the RTC, presided over by herein public respondent Judge Sesinando Villon. 28 On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received the record of Criminal Case No. 961667(M). 29 On 30 April 1996, petitioners filed with the trial court a Manifestation 30 submitting, in connection with their Motion to Defer Proceedings and Motion to Inhibit Judge Roura, documentary evidence to support their contention that the offense committed was murder, not homicide. The documents which they claimed were not earlier submitted by the public prosecution were the following: a. Counter-Affidavit of SPO1 Gilberto D. Malabanan. b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac. c. Counter-Affidavit of Francisco I. Yambao. d. Counter-Affidavit of SPO2 Fortunato Mallari. e. Sinumpaang Salaysay of Aniano Magnaye. f. Sinumpaang Salaysay of Leopoldo Soriano. g. Transcript of Stenographic Notes of the Preliminary Investigation of Criminal Case No. 95360, containing the testimony of: a. Pete r Paul Dim atul ac b. Vlad imir D. Yum ul c. SPO 1 Gilb

128

erto Mal aba nan d. PO3 Alfo nso Cani lao h. Investigation Report-dated November 4, 1995. i. Dying declaration of Virgilio Dimatulac. j. Sketch k. Unscaled Sketch Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP No. 40393, a Resolution 31 directing respondent therein to file his comment to the petition within ten days from notice and to show cause within the same period "why no writ of preliminary injunction should be issued as prayed for in the petition." However, the Court of Appeals "deferred action" on the prayer for a temporary restraining order "until after the required comment [was] submitted." On 3 May 1996, petitioners filed an Ex-Parte Manifestation 32 with the RTC, furnishing the trial court with a copy of the aforementioned resolution of the Court of Appeals and drawing the attention of the trial court to the rulings of this Court in "Valdez vs. Aquilisan, (133 SCRA 150), Galman vs. Sandiganbayan, and Eternal Gardens Memorial Park Corp. vs. Court of Appeals . . . as well as the decision in Paul G. Roberts vs. The Court of Appeals." On 3 May 1996, Judge Villon issued an order resetting arraignment of the accused to 20 May 1996. 33 On the latter date, the YABUTs each entered a plea of not guilty. 34 Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an Urgent Motion to Set Aside Arraignment, 35 citing the resolution of 30 April 1996 of the Court of Appeals in CA-G.R. SP No. 40393 which, inter alia, deferred resolution on the application for a temporary restraining order "until after the required comment is submitted by the respondent;" stressed that the filing of the information for the lesser offense of homicide was "clearly unjust and contrary to law in view of the unquestionable attendance of circumstances qualifying the killing to murder;" and asserted that a number of Supreme Court decisions supported suspension of the proceedings in view of the pendency of their appeal before the DOJ. On 31 May 1997, Judge Villon issued an Order 36 directing the accused to file their comment on the Urgent Motion to Set Aside Arraignment within fifteen days from notice. In a letter 37 addressed to the Provincial Prosecutor dated 7 June 1996, public respondent Secretary Teofisto Guingona of the DOJ resolved the appeal in favor of petitioners. Secretary Guingona ruled that treachery was present and directed the Provincial Prosecutor of San Fernando, Pampanga "to amend the information filed against the accused from homicide to murder," and to include Fortunato Mallari as accused in the amended information. The findings and conclusions of Secretary Guingona read as follows:

Contrary to your findings, we find that there is treachery that attended the killing of PO3 Dimatulac. Undisputedly, the victim was suddenly shot while he was descending the stairs. The attack was unexpected as the victim was unarmed and on his way to make peace with Mayor Yabut, he was unsuspecting so to speak. From the circumstances surrounding his killing, PO3 Dimatulac was indeed deprived of an opportunity to defend himself or to retaliate. Corollarily, we are also convinced that such mode of attack was consciously and deliberately adopted by the respondents to ensure the accomplishment of their criminal objective. The admission of respondent Malabanan is replete with details on how the principal respondent, Mayor Yabut, in conspiracy with the assailant and others, had consciously and deliberately adopted means to ensure the execution of the crime. According to him, while they were on their way to the victim's house, Mayor Yabut already instructed Danny, the assailant, that, "Dikitan mo lang, alam no na king ano ang gagawin mo, bahala ka na" This explains why Danny positioned himself near the stairs of the victim's house armed with a handgun, such positioning was precisely adopted as a means to ensure the accomplishment of their evil design and Mayor Yabut ordered nobody else but Danny to shoot the victim while descending the stairs as his position was very strategic to ensure the killing of the victim. As has been repeatedly held, to constitute treachery, two conditions must be present, to wit: (1) employment of means of execution that gives the person [attacked] no opportunity to defend himself or retaliate; and (2) the means of execution were deliberately or consciously adopted (People vs. Talaver, 230 SCRA 281 [1994]). In the case at bar, these two (2) requisites are present as established from the foregoing discussion. Hence, there being a qualifying circumstance of treachery, the crime committed herein is murder, not homicide (People vs. Gapasin, 231 SCRA 728 [1994]). Anent the alleged participation of respondents Fortunato Mallari and Francisco Yambao, we find sufficient evidence against Mallari as part of the conspiracy but not against Yambao. As can be gleaned from the sworn-statement of Yambao, which appears to be credible, Mallari tried also to persuade the victim to go with them, using as a reason that he (victim) was being invited by General Ventura. He was also seen trying to fix the gun which was used in killing the victim. These actuations are inconsistent with the claim that his presence at the crime scene was merely passive. On the other hand, we find credible the version and explanation of Yambao. Indeed, under the obtaining

129

circumstances, Yambao had no other option but to accede to the request of Mayor Yabut to provide transportation to the assailant. There being an actual danger to his life then, and having acted under the impulse of an uncontrollable fear, reason dictates that he should be freed from criminal liability. 38 The YABUTs moved to reconsider the resolution, 39 citing Section 4 of "Administrative/Administration Order No. 223 of the DOJ." 40 In an Ex-Parte Manifestation 41 dated 21 June 1996, petitioners called the trial court's attention to the resolution of the Secretary of Justice, a copy of which was attached thereto. Later, in a Manifestation and Motion 42 dated 1 July 1996, petitioners asked the trial court to grant their motion to set aside arraignment. Attached thereto was a copy of the Manifestation and Motion 43 of the Solicitor General dated 18 June 1996 filed with the Court of Appeals in CA-G.R. SP No. 40393 wherein the Solicitor General joined cause with petitioners and prayed that "in the better interest of justice, [the] Petition for Prohibition be GRANTED and a writ of prohibition be ISSUED forthwith." In support of said prayer, the Solicitor General argued: 2. There is merit to the cause of petitioners. If the Secretary of Justice would find their Appeal meritorious, the Provincial Prosecutor would be directed to upgrade the Information to Murder and extreme prejudice if not gross injustice would thereby have been avoided. 3. Consequently, the undersigned counsel interpose no objection to the issuance of a writ of prohibition enjoining respondent Judge from holding further proceedings in Criminal Case No. 961667-M, particularly in holding the arraignment of the accused, pending resolution of the Appeals with the Secretary of Justice. The YABUTs opposed 44 petitioner's Manifestation and Motion dated 1 July 1996 because they had already been arraigned and, therefore, would be placed in double jeopardy; and that the public prosecutor not the private prosecutor had control of the prosecution of the case. In his letter 45 dated 1 July 1996 addressed to the Provincial Prosecutor of Pampanga, the Secretary of Justice set aside his order to amend the information from homicide to murder considering that the appeal was rendered moot and academic by the arraignment of the accused for homicide and their having entered their pleas of not guilty. The Secretary stated:

Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had already been arraigned on May 20, 1996 and had pleaded not guilty to the charge of homicide, as shown by a copy of the court order dated May 20, 1996, the petition for review insofar as the respondents-Yabut are concerned has been rendered moot and academic. However, the Secretary reiterated that Fortunato Mallari should be included in the information for homicide. On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to Amend Information and to Admit Amended Information. 46 The Amended Information 47 merely impleaded Fortunato Mallari as one of the accused. In his Order 48 of 1 August 1996, Judge Villon denied petitioners' motion to set aside arraignment, citing Section 4, DOJ Department Order No. 223, and the letter of the Secretary of Justice of 1 July 1996. Petitioners forthwith moved for reconsideration 49 of the order, arguing that the Motion to Defer the Proceedings filed by petitioners was meritorious and did not violate the accused's right to speedy trial; and that the DOJ had ruled that the proper offense to be charged was murder and did not reverse such finding. Petitioners also cited the Solicitor General's stand 50 in CAG.R. SP No. 40393 that holding accused's arraignment in abeyance was proper under the circumstances. Finally, petitioners contended that in proceeding with the arraignment despite knowledge of a petition for prohibition pending before the Court of Appeals, the trial court violated Section 3(d), Rule 71 of the Rules of Court on indirect contempt. The YABUTs opposed the motion on the ground that it raised no argument which had not yet been resolved. 51 On 3 September 1996, petitioners filed a Motion to Defer Arraignment of Accused Fortunato Mallari, 52 which the trial court granted in view of petitioners' motion for reconsideration of the court's order denying petitioners' motion to set aside private respondents' arraignment. 53 As expected, Mallari moved to reconsider the trial court's order and clamored for consistency in the trial court's rulings. 54 In an order 55 dated 15 October 1996, Judge Villon denied reconsideration of the order denying petitioners' motion to set aside arraignment, citing the YABUTs' right to a speedy trial and explaining that the prosecution of an offense should be under the control of the public prosecutor, whereas petitioners did not obtain the conformity of the prosecutor before they filed various motions to defer proceedings. Considering said order, Judge Villon deemed accused Mallari's motion for reconsideration moot and academic. 56 On 16 October 1996, the Court of Appeals promulgated its decision 57 in CA-G.R. SP No. 40393 dismissing the petition therein for having become moot and academic in view of Judge Roura's voluntary inhibition, the arraignment of the YABUTs and the dismissal, by the Secretary of Justice, of petitioners' appeal as it had been mooted by said arraignment. Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila, and Judge Roura was ordered by the Supreme Court to preside over cases pending in Branch 54 of the Regional Trial Court of Macabebe, Pampanga, which was previously presided over by Judge Villon. 58 Judge Roura informed the Office of the Court Administrator and this Court that he had already inhibited himself from hearing Criminal Case No. 96-1667(M). 59

130

On 28 December 1996, petitioners filed the instant Petition for Certiorari/Prohibition and Mandamus. They urge this Court to reverse the order of respondent Judge denying their Motion to Set Aside Arraignment; set aside arraignment of private respondents; order that no further action be taken by any court in Criminal Case No. 96-1667(M) until this petition is resolved; and order respondents Secretary of Justice and the prosecutors concerned to amend the information from homicide to murder. Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by treachery since private respondents tricked the victim into coming out of his house and then shot him while he was going down the stairs. There was, petitioners claim, "an orchestrated effort on the part of [private respondents] to manipulate the rules on administrative appeals with the end in view of evading prosecution for the [non-bailable] offense of murder," as shown by the following events or circumstances: (1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the nature of the crime committed to homicide, a bailable offense, on strength of a motion for reinvestigation filed by the YABUTs who had not yet been arrested. (2) Respondent Mayor and his companions returned to Minalin after the killing and went into hiding for four (4) months until the offense charged was downgraded. (3) The information for homicide was nevertheless filed despite notice to the Office of the Provincial Prosecutor of the appeal filed with the Secretary of Justice and request to defer any action on the case. (4) The Office of the Public Prosecutor of Pampanga disallowed the private prosecutor from further participating in the case. (5) Judge Roura denied the motion to defer proceedings and declared in open court that there was no prima facie case for murder, notwithstanding the pendency of petitioners' appeal with respondent Secretary of Justice.

(6) Even before receipt by petitioners of Judge Roura's order inhibiting himself and the order regarding the transfer of the case to Branch 54, public respondent Judge Villon set the case for arraignment and, without notice to petitioners, forthwith arraigned the accused on the information for homicide on 20 May 1996, despite the pendency of the petition for prohibition before the Court of Appeals and of the appeal before the DOJ. (7) The Pampanga Provincial Prosecutor's Office did not object to the arraignment nor take any action to prevent further proceedings on the case despite knowledge of the pendency of the appeal. (8) The Provincial Prosecutor did not comply with the resolution of 7 June 1996 of the Secretary of Justice directing the amendment of the information to charge the crime of murder. Petitioners argue that in light of Roberts, Jr., v. Court of Appeals, 60 respondent Judge acted in excess of his jurisdiction in proceeding with private respondents' arraignment for homicide and denying petitioners' motion to set aside arraignment. Moreover, although respondent Judge Villon was not the respondent in CA-G.R. SP No. 40393; he should have deferred the proceedings just the same as the very issue in said case was whether or not the RTC could proceed with the arraignment despite the pending review of the case by respondent Secretary of Justice. Further, Judge Villon unjustly invoked private respondents' right to a speedy trial, after a lapse of barely three (3) months from the filing of the information on 23 February 1996; overlooked that private respondents were estopped from invoking said right as they went into hiding after the killing, only to resurface when the charge was reduced to homicide; and failed to detect the Provincial Prosecutor's bias in favor of private respondents. Judge Villon should have been more circumspect as he knew that by proceeding with the arraignment, the appeal with the DOJ would be rendered technically nugatory. Finally, petitioners submit that the DOJ rule prohibiting appeals from resolutions of prosecutors to the Secretary of Justice once the accused had already been arraigned applies only to instances where the appellants are the accused, since by submitting to arraignment, they voluntarily abandon their appeal. In their comment, private respondents contend that no sufficient legal justification exists to set aside private respondents' arraignment, it having already been reset twice

131

from 12 April 1996 to 3 may 1996, due to petitioners' pending appeals with the DOJ; and from 3 May 1996 to 20 May 1996, due to the transfer of this case to Branch 54. Moreover, as of the latter date, the DOJ had not yet resolved petitioners' appeal and the DOJ did not request that arraignment be held in abeyance, despite the fact that petitioners' appeal had been filed as early as 23 February 1996, at least 86 days prior to private respondents' arraignment. They point out that petitioners did not move to reconsider the RTC's 26 March 1996 denial of the Motion to Defer, opting instead for Judge Roura's recusal and recourse to the Court of Appeals, and as no restraining order was issued by the Court of Appeals, it was but proper for respondent Judge to proceed with the arraignment of private respondent, to which the public and private prosecutors did not object. Private respondents further argue that the decision of respondent Secretary, involving as it did the exercise of discretionary powers, is not subject to judicial review. Under the principle of separation of powers, petitioners' recourse should have been to the President. While as regards petitioners' plea that the Secretary be compelled to amend the information from homicide to murder, private respondents submit that mandamus does not lie, as the determination as to what offense was committed is a prerogative of the DOJ, subject only to the control of the President. As regards DOJ Department Order No. 223, private respondents theorize that appeal by complainants is allowed only if the complaint is dismissed by the prosecutor and not when there is a finding of probable cause, in which case, only the accused can appeal. Hence, petitioners' appeal was improper. Finally, private respondents stress the fact that petitioners never appealed the withdrawal by the public prosecutor of the private prosecutor's authority to handle the case. In its comment for the public respondents, the Office of the Solicitor General (OSG) prays that the petition be denied because: (a) in accordance with Section 4 of DOJ Order No. 223, upon arraignment of the accused, the appeal to the Secretary of Justice shall be dismissed motu proprio; (b) the filing of the information for homicide was in compliance with the directive under Section 4(2), D.O. No. 223, i.e., an appeal or motion for reinvestigation from a resolution finding probable cause shall not hold the filing of the information in court; (c) the trial court even accommodated petitioners by initially deferring arraignment pending resolution by the Court of Appeals of the petition for prohibition, and since said Court did not issue any restraining order, arraignment was properly had; and (d) reliance on Roberts is misplaced, as there, accused Roberts and others had not been arraigned and respondent Judge had ordered the indefinite postponement of the arraignment pending resolution of their petitions before the Court of Appeals and the Supreme Court. We now consider the issues enumerated at the outset of this ponencia. Plainly, the proceedings below were replete with procedural irregularities which lead us to conclude that something had gone awry in the Office of the Provincial Prosecutor of Pampanga resulting in manifest advantage to the accused, more particularly the YABUTs, and grave prejudice to the State and to private complainants, herein petitioners. First, warrants for the arrest of the YABUTs were issued by the MCTC, with no bail recommended for their temporary liberty. However, for one reason or another undisclosed in the record, the YABUTs were not arrested; neither did they surrender. Hence, they were never brought into the custody

of the law. Yet, Asst. Provincial Fiscal Alfonso Reyes, either motu proprio or upon motion of the YABUTs, conducted a reinvestigation. Since said accused were at large, Alfonso-Reyes should not have done so. While it may be true that under the second paragraph of Section 5, Rule 112 of the Rules of Court, the provincial prosecutor may disagree with the findings of the judge who conducted the preliminary investigation, as here, this difference of opinion must be on the basis of the review of the record and evidence transmitted by the judge. Were that all she did, as she had no other option under the circumstance, she was without any other choice but to sustain the MCTC since the YABUTs and all other accused, except Francisco Yambao, waived the filing of their counter-affidavits. Then, further stretching her magnanimity in favor of the accused, AlfonsoReyes allowed the YABUTs to submit their counter-affidavits without first demanding that they surrender because of the standing warrants of arrest against them. In short, AlfonsoReyes allowed the YABUTs to make a mockery of the law in order that they gain their provisional liberty pending trial and be charged with the lesser offense of homicide. Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs and co-accused "Danny," despite the fact that they were charged with homicide and they were, at the time, fugitives from justice for having avoided service of the warrant of arrest issued by the MCTC and having failed to voluntarily surrender. Third, Alfonso-Reyes was fully aware of the private prosecution's appeal to the DOJ from her resolution. She could not have been ignorant of the fact that the appeal vigorously assailed her finding that there was no qualifying circumstance attending the killing, and that the private prosecution had convincing arguments to support the appeal. The subsequent resolution of the Secretary of Justice confirmed the correctness of the private prosecution's stand and exposed the blatant errors of Alfonso-Reyes. Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information for homicide on 28 February 1996. It is interesting to note that while the information was dated 29 January 1996, it was approved by the Provincial Prosecutor only on 27 February 1996. This simply means that the Office of the Prosecutor was not, initially, in a hurry to file the Information. No undue prejudice could have been caused to the YABUTs if it were filed even later for the YABUTs were still at large; in fact, they filed their bonds of P20,000.00 each only after the filing of the Information. If Alfonso-Flores was extremely generous to the YABUTs, no compelling reason existed why she could not afford the offended parties the same courtesy by at least waiting for instructions from the Secretary of Justice in view of the appeal, if she were unwilling to voluntarily ask the latter for instructions. Clearly, under the circumstances, the latter course of action would have been the most prudent thing to do. Fifth, as if to show further bias in favor of the YABUTs, the Office of the Provincial Prosecutor of Pampanga did not even bother to motu proprio, inform the trial court that the private prosecution had appealed from the resolution of Alfonso-Flores and had sought, with all the vigour it could muster, the filing of an information for murder, as found by the MCTC and established by the evidence before it. Unsatisfied with what had been done so far to accommodate the YABUTs, the Office of the Provincial Prosecutor did not even have the decency to agree to defer arraignment despite its continuing knowledge of the pendency of the appeal. This amounted to defiance of the DOJ's power of control and supervision over prosecutors, a matter which we shall later elaborate on. Moreover, in an unprecedented move, the trial prosecutor, Olimpio Datu, had the temerity, if not arrogance, to announce that "he will no longer allow the private prosecutor to participate or handle the prosecution of [the] case" simply because the private prosecution had asked for

132

the inhibition of Judge Roura. Said prosecutor forgot that since the offended parties here had not waived the civil action nor expressly reserved their right to institute it separately from the criminal action, then they had the right to intervene in the criminal case pursuant to Section 16 of Rule 1l0 of the Rules of Court. It is undebatable that petitioners had the right to appeal to the DOJ from the resolution of Alfonso-Flores. The last paragraph of Section 4 of Rule 112 of the Rules of Court provides: If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for the dismissal of the complaint or information. It is clear from the above, that the proper party referred to therein could be either the offended party or the accused. More importantly, an appeal to the DOJ is an invocation of the Secretary's power of control over prosecutors. Thus, in Ledesma v. Court of Appeals, 16 we emphatically held: Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised Administrative Code, 62 exercises the power of direct control and supervision over said prosecutors; and who, may thus affirm, nullify, reverse or modify their rulings. Sec. 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: (1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; . . . . Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read: Sec. 3. . . .

The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State Prosecutors shall . . . perform such other duties as may be assigned to them by the Secretary of Justice in the interest of public service. xxx xxx xxx Sec. 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office, division or service, the same shall be understood as also conferred upon the proper Department Head who shall have authority to act directly in pursuance thereof, or to review, modify, or revoke any decision or action of said chief of bureau, office, division or service. "Supervision" and "control" of a department head over his subordinates have been defined in administrative law as follows: In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity

133

or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed. DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended parties and the accused to appeal from resolutions in preliminary investigations or reinvestigations, as provided for in Section 1 and Section 4, respectively. Section 1 thereof provides, thus: Sec. 1. What May Be Appealed. Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Prosecutor or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof. While the section speaks of resolutions dismissing a criminal complaint, petitioners herein were not barred from appealing from the resolution holding that only homicide was committed, considering that their complaint was for murder. By holding that only homicide was committed, the Provincial Prosecutor's Office of Pampanga effectively "dismissed" the complaint for murder. Accordingly, petitioners could file an appeal under said Section 1. To rule otherwise would be to forever bar redress of a valid grievance, especially where the investigating prosecutor, as in this case, demonstrated what unquestionably appeared to be unmitigated bias in favor of the accused. Section 1 is not to be literally applied in the sense that appeals by the offended parties are allowed only in cases of dismissal of the complaint, otherwise the last paragraph of Section 4, Rule 112, Rules of Court would be meaningless. We cannot accept the view of the Office of the Solicitor General and private respondents that Section 1 of DOJ Department Order No. 223 is the controlling rule; hence, pursuant to the second paragraph thereof the appeal of petitioners did not hold the filing of the information. As stated above, Section 4 applies even to appeals by the respondents or accused. The provision reads: Sec. 4. Non-appealable cases. Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon a showing of manifest error or grave abuse of discretion. Notwithstanding the showing of minifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu proprio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. (emphasis supplied) The underlined portion indisputably shows that the section refers to appeals by respondents or accused. So we held in Marcelo v. Court of Appeals, 63 that nothing in the ruling in Crespo v. Mogul, 64 reiterated in Roberts v. Court of Appeals, 65forecloses the power of authority of the Secretary

of Justice to review resolutions of his subordinates in criminal cases despite an information already having been filed in court. The Secretary of Justice is only enjoined to refrain, as far as practicable, from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court. In Roberts we went further by saying that Crespo could not have foreclosed said power or authority of the Secretary of Justice "without doing violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court" which is quoted above. Indubitably then, there was on the part of the public prosecution, indecent haste in the filing of the information for homicide, depriving the State and the offended parties of due process. As to the second issue, we likewise hold that Judge Roura acted with grave abuse of discretion when, in his order of 26 March l996, 66 he deferred resolution on the motion for a hold departure order until "such time that all the accused who are out on bail are arraigned" and denied the motion to defer proceedings for the reason that the "private prosecution has not shown any indication that [the] appeal was given due course by the Secretary of Justice." Neither rhyme nor reason or even logic, supports the ground for the deferment of the first motion. Precisely, immediate action thereon was called for as the accused were out on bail and, perforce, had all the opportunity to leave the country if they wanted to. To hold that arraignment is a prerequisite to the issuance of a hold departure order could obviously defeat the purpose of said order. As to the second motion, Judge Roura was fully aware of the pendency of petitioner's appeal with the DOJ, which was filed as early as 23 February 1996. In fact, he must have taken that into consideration when he set arraignment of the accused only on 12 April 1996, and on that date, after denying petitioners' motion to reconsider the denial of the motion to defer proceedings, he further reset arraignment to 3 May 1996 and gave petitioners ten (10) days within which to file a petition forcertiorari to question his denial of the motion to defer and of the order denying the reconsideration. In any event, the better part of wisdom suggested that, at the very least, he should have asked petitioners as regards the status of the appeal or warned them that if the DOJ would not decide the appeal within a certain period, then arraignment would proceed. Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996 and, at the same time, moved to inhibit Judge Roura. These twin moves prompted Judge Roura to "voluntarily" inhibit himself from the case on 29 April 1996 67 and to transfer the case to the branch presided by public respondent Judge Villon. The latter received the records of the case on 30 April 1996. From that time on, however, the offended parties did not receive any better deal. Acting with deliberate dispatch, Judge Villon issued an order on 3 May 1996 setting arraignment of the accused on 20 May 1996. If Judge Villon only perused the record of the case with due diligence, as should be done by anyone who has just taken over a new case, he could not have helped but notice: (a) the motion to defer further proceedings; (2) the order of Judge Roura giving petitioners ten days within which to file a petition with the Court of Appeals; (3) the fact of the filling of such petition in CA-G.R. SP No. 40393; (4) the resolution of the Court of Appeals directing respondents to comment on the petition and show cause why the application for a writ of preliminary injunction should not be granted and deferring resolution of the application for a temporary restraining order until after the required comment was filed, which indicated a prima facie showing of merit; (5) the motion to inhibit Judge Roura precisely because of his prejudgment that the crime committed was merely homicide; (6) Judge Roura's subsequent inhibition;

134

(7) various pieces of documentary evidence submitted by petitioners on 30 April 1996 supporting a charge of murder, not homicide; and (8) most importantly , the pending appeal with the DOJ. All the foregoing demanded from any impartial mind, especially that of Judge Villon, a cautious attitude as these were unmistakable indicia of the probability of a miscarriage of justice should arraignment be precipitately held. However, Judge Villon cursorily ignored all this. While it may be true that he was not bound to await the DOJ's resolution of the appeal, as he had, procedurally speaking, complete control over the case and any disposition thereof rested on his sound discretion, 68 his judicial instinct should have led him to peruse the documents submitted on 30 April 1996 and to initially determine, for his own enlightenment with serving the ends of justice as the ultimate goal, if indeed murder was the offense committed; or, he could have directed the private prosecutor to secure a resolution on the appeal within a specified time. Given the totality of circumstances, Judge Villon should have heeded our statement in Marcelo 69 that prudence, if not wisdom, or at least, respect for the authority of the prosecution agency, dictated that he should have waited for the resolution of the appeal then pending before the DOJ. All told, Judge Villon should not have merely acquiesced to the findings of the public prosecutor. We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in rushing the arraignment of the YABUTs on the assailed information for homicide. Again, the State and the offended parties were deprived of due process. Up to the level then of Judge Villon, two pillars of the criminal justice system failed in this case to function in a manner consistent with the principle of accountability inherent in the public trust character of a public office. Judges Roura and Villon and prosecutors Alfonso-Flores and Datu need be reminded that it is in the public interest that every crime should be punished 70 and judges and prosecutors play a crucial role in this regard for theirs is the delicate duty to see justice done, i.e., not to allow the guilty to escape nor the innocent to suffer. 71 Prosecutors must never forget that, in the language of Suarez v. Platon, 72 they are the representatives not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win every case but that justice be done. As such, they are in a peculiar and every definite sense the servants of the law, whose two-fold aim is that guilt shall not escape or innocence suffer. Prosecutors are charged with the defense of the community aggrieved by a crime, and are expected to prosecute the public action with such zeal and vigor as if they were the ones personally aggrieved, but at all times cautious that they refrain from improper methods designed to secure a wrongful conviction. 73 With them lies the duty to lay before the court the pertinent facts at the judge's disposal with strict attention to punctilios, thereby clarifying contradictions and sealing all gaps in the evidence, with a view to erasing all doubt from the court's mind as to the accused's innocence or guilt. The judge, on the other hand, "should always be imbued with a high sense of duty and responsibility in the discharge of his obligation to promptly and properly administer justice." 74 He must view himself as a priest, for the administration of justice is akin to a religious crusade. Thus, exerting the same devotion as a priest "in the performance of the most sacred ceremonies of religious liturgy," the judge must render service with impartiality commensurate with

the public trust and confidence reposed in him. 75 Although the determination of a criminal case before a judge lies within his exclusive jurisdiction and competence, 76 his discretion is not unfettered, but rather must be exercised within reasonable confines. 77 The judge's action must not impair the substantial rights of the accused, nor the right of the State and offended party to due process of law. 78 Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone. The interests of society and the offended parties which have been wronged must be equally considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice, for, to the society offended and the party wronged, it could also mean injustice. 79 Justice then must be rendered even-handedly to both the accused, on one hand, and the State and offended party, on the other. In this case, the abuse of discretion on the part of the public prosecution and Judges Roura and Villon was gross, grave and palpable, denying, the State and the offended parties their day in court, or in a constitutional sense,due process. As to said judges, such amounted to lack or excess of jurisdiction, or that their court was ousted of the jurisdiction in respect thereto, thereby nullifying as having been done without jurisdiction, the denial of the motion to defer further hearings, the denial of the motion to reconsider such denial, the arraignment of the YABUTs and their plea of not guilty. These lapses by both the judges and prosecutors concerned cannot be taken lightly. We must remedy the situation before the onset of any irreversible effects. We thus have no other recourse, for as Chief Justice Claudio Teehankee pronounced in Galman v. Sandiganbayan: 80 The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention of redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. We remind all members of the pillars of the criminal justice system that theirs is not a mere ministerial task to process each accused in and out of prison, but a noble duty to preserve our democratic society under a rule of law. Anent the third issue, it was certainly grave error for the DOJ to reconsider its 7 June 1996 resolution, holding that murder was committed and directing the Provincial Prosecutor to accordingly amend the information, solely on the basis of the information that the YABUTs had already been arraigned. In so doing, the DOJ relinquished its power of control and supervision over the Provincial Prosecutor and the Assistant Provincial Prosecutors of Pampanga; and meekly surrendered to the latter's inappropriate conductor even hostile attitude, which amounted to neglect of duty or conduct prejudicial to the best interest of the service, as well as to the undue haste of Judge Roura and Villon in respect of the arraignment of the YABUTs. The sins of omission or commission of said prosecutors and judges resulted, in light of the finding of the DOJ that the crime committed was

135

murder, in unwarranted benefit to the YABUTs and gross prejudice to the State and the offended parties. The DOJ should have courageously exercised its power of control by taking bolder steps to rectify the shocking "mistakes" so far committed and, in the final analysis, to prevent further injustice and fully serve the ends of justice. The DOJ could have, even if belatedly, joined cause with petitioners to set aside arraignment. Further, in the exercise of its disciplinary powers over its personnel, the DOJ could have directed the public prosecutors concerned to show cause why no disciplinary action should be taken against them for neglect of duty or conduct prejudicial to the best interest of the service in not, inter alia, even asking the trial court to defer arraignment in view of the pendency of the appeal, informing the DOJ, from time to time, of the status of the case, and, insofar as prosecutor Datu was concerned, in disallowing the private prosecutor from further participating in the case. Finally, the DOJ should have further inquired into the vicissitudes of the case below to determine the regularity of arraignment, considering that the appeal was received by the DOJ as early as 23 February 1996. We then rule that the equally hasty motu proprio "reconsideration" of the 7 June 1996 resolution of the DOJ was attended with grave abuse of discretion. It is settled that when the State is deprived of due process in a criminal case by reason of grave abuse of discretion on the part of the trial court, the acquittal of the accused 81 or the dismissal of the case 82 is void, hence double jeopardy cannot be invoked by the accused. If this is so in those cases, so must it be where the arraignment and plea of not guilty are void, as in this case as above discussed. WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura of 26 March 1996 denying the Motion to Defer Proceeding and of 12 April 1996 denying the motion to reconsider the denial of said Motion to Defer Proceedings, and the orders of respondent Judge Sesinando Villon of 3 May 1996 resetting the arraignment to 20 May 1998 and of 25 October 1996 denying the Motion to Set Aside Arraignment in Criminal Case No. 96-1667(M) are declared VOID and SET ASIDE. The arraignment of private respondents Mayor Santiago Yabut, Servillano Yabut and Martin Yabut and their separate pleas of not guilty are likewise declared VOID and SET ASIDE. Furthermore, the order of public respondent Secretary of Justice of 1 July 1996 is SET ASIDE and his order of 7 June 1996 REINSTATED. The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with the order (letter) of the Secretary of Justice of 7 June 1996 by forthwith filing with the trial court the amended information for murder. Thereafter the trial court shall proceed in said case with all reasonable dispatch. No pronouncement as to costs. SO ORDERED. G.R. No. 72335-39 March 21, 1988 FRANCISCO S. TATAD, petitioner, vs. THE SANDIGANBAYAN, and THE TANODBAYAN, respondents.

In this petition for certiorari and prohibition, with preliminary injunction, dated October 16, 1985, petitioner seeks to annul and set aside the resolution of the Tanodbayan of April 7, 1985, and the resolutions of the Sandiganbayan, dated August 9, 1985, August 12,1985 and September 17, 1985, and to enjoin the Tanodbayan and the Sandiganbayan from continuing with the trial or any other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, an entitled "People of the Philippines versus Francisco S. Tatad." The petition alleges, among other things, that sometime in October 1974, Antonio de los Reyes, former Head Executive Assistant of the then Department of Public Information (DPI) and Assistant Officer-in-Charge of the Bureau of Broadcasts, filed a formal report with the Legal Panel, Presidential Security Command (PSC), charging petitioner, who was then Secretary and Head of the Department of Public Information, with alleged violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Apparently, no action was taken on said report. Then, in October 1979, or five years later, it became publicly known that petitioner had submitted his resignation as Minister of Public Information, and two months after, or on December 12, 1979, Antonio de los Reyes filed a complaint with the Tanodbayan (TBP Case No. 8005-16-07) against the petitioner, accusing him of graft and corrupt practices in the conduct of his office as then Secretary of Public Information. The complaint repeated the charges embodied in the previous report filed by complainant before the Legal Panel, Presidential Security Command (PSC). On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E. Marcos. On April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes to the Criminal Investigation Service (CIS) for factfinding investigation. On June 16, 1980, Roberto P. Dizon, CIS Investigator of the Investigation and Legal Panel, PSC, submitted his Investigation Report, with the following conclusion, ". . . evidence gathered indicates that former Min. TATAD have violated Sec. 3 (e) and Sec. 7 of RA 3019, respectively. On the other hand, Mr. ANTONIO L. CANTERO is also liable under Sec. 5 of RA 3019," and recommended appropriate legal action on the matter. Petitioner moved to dismiss the complaint against him, claiming immunity from prosecution by virtue of PD 1791, but the motion was denied on July 26, 1982 and his motion for reconsideration was also denied on October 5, 1982. On October 25, 1982, all affidavits and counter-affidavits were with the Tanodbayan for final disposition. On July 5, 1985, the Tanodbayan approved a resolution, dated April 1, 1985, prepared by Special Prosecutor Marina Buzon, recommending that the following informations be filed against petitioner before the Sandiganbayan, to wit: l. Violation of Section 3, paragraph (e) of RA. 3019 for giving D' Group, a private corporation controlled by his brother-inlaw, unwarranted benefits, advantage or preference in the discharge of his official functions through manifest partiality and evident bad faith; 2. Violation of Section 3, paragraph (b) of RA. 3019 for receiving a check of P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the release of a check of P588,000.00 to said corporation for printing services rendered for the Constitutional Convention Referendum in 1973;

YAP, J.:

136

3. Violation of Section 7 of RA. 3019 on three (3) counts for his failure to file his Statement of Assets and Liabilities for the calendar years 1973, 1976 and 1978. Accordingly, on June 12, 1985, the following informations were flied with the Sandiganbayan against the petitioner: Re: Criminal Case No. 10499 The undersigned Tanodbayan Special Prosecutor accuses Francisco S. Tatad with Violation of Section 3, paragraph (b) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 16th day of July, 1973 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully demand and receive a check for Pl25,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the payment to said Corporation of the sum of P588,000.00, for printing services rendered for the Constitutional Convention Referendum of January, 1973, wherein the accused in his official capacity had to intervene under the law in the release of the funds for said project. That the complaint against the abovenamed accused was filed with the Office of the Tanodbayan on May 16, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10500 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the AntiGraft and Corrupt Practice Act, committed as follows: That on or about the 31st day of January, 1974 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true detailed and sworn statement of his assets and liabilities, as of December 31, 1973, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1973), as required of every public officer. That the complaint against the abovenamed accused was flied with the Office of the Tanodbayan on June 20, 1980.

CONTRARY TO LAW. Re: Criminal Case No. 10501 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 3, paragraph (e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the month of May, 1975 and for sometime prior thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully give Marketing Communication Group, Inc. (D' Group), a private corporation of which his brotherin-law, Antonio L. Cantero, is the President, unwarranted benefits, advantage or preference in the discharge of his official functions, through manifest partiality and evident bad faith, by allowing the transfer of D' GROUP of the funds, assets and ownership of South East Asia Research Corporation (SEARCH), allegedly a private corporation registered with the Securities and Exchange Corporation on June 4, 1973, but whose organization and operating expenses came from the confidential funds of the Department of Public Information as it was organized to undertake research, projects for the government, without requiring an accounting of the funds advanced by the Department of Public Information and reimbursement thereof by D' GROUP, to the damage and prejudice of the government. That the complaint against the abovenamed accused was filed with the Office of the Tanodbayan on May 16, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10502 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act, committed as follows: That on or about the 31st day of January, 1977 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true and sworn statement of his assets and liabilities, as of December 31, 1976, including a statement of the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1976), as required of every public officer.

137

That the complaint against the abovenamed accused was filed with the Office of the Tanodbayan on June 20, 1988. CONTRARY TO LAW. Re: Criminal Case No. 10503 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act, committed as follows: That on or about the 15th day of April, 1979, in the City of Manila Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true, detailed and sworn statement of his assets and liabilities, as of December 31, 1978, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1978), as required of every public officer. That the complaint against the abovenamed accused was filed with the Office of the Tanodbayan on June 20, 1980. CONTRARY TO LAW. On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash the informations on the follow grounds: 1 The prosecution deprived accusedmovant of due process of law and of the right to a speedy disposition of the cases filed against him, amounting to loss of jurisdiction to file the informations; 2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500 and 10501; 3. The facts charged in Criminal Case No. 10500 (for failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense; 4. No prima facie case against the accused-movant exists in Criminal Cases Nos. 10500, 10502 and 10503; 5. No prima facie case against the accused-movant exists in Criminal Case No. 10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as amended; 6. No prima facie case against the accused-movant exists in Criminal Case No. 10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended.

On July 26, 1985, the Tanodbayan filed its opposition to petitioner's consolidated motion to quash, stating therein in particular that there were only two grounds in said motion that needed refutation, namely: 1. The offense charged in Criminal Cases Nos. 10499,10500 and 10501, have already prescribed and criminal liability is extinguished; and 2. The facts charged in the information (Criminal Case No. 10500 For failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense. On the issue of prescription, Tanodbayan citing the case of Francisco vs. Court of Appeals, 122 SCRA 538, contended that the filing of the complaint or denuncia in the fiscal's office interrupts the period of prescription. Since the abovenumbered cases were filed with the Office of the Tanodbayan in 1980 and the alleged offenses were committed on July 16, 1973, January 31, 1974 and in May 1975, respectively, although the charges were actually filed in Court only on July 9, 1985, the Tanodbayan has still the right to prosecute the same, it appearing that the ten (10) year prescriptive period has not yet lapsed. Moreover, Tanodbayan pointed out that a law such as Batas Pambansa Blg. 195, extending the period of limitation with respect to criminal prosecution, unless the right to acquittal has been acquired, is constitutional. Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and Liabilities in P.D. 379 is separate and distinct from that required pursuant to the provisions of the Anti-Graft Law, as amended. For while the former requires "any natural or juridical person having gross assets of P50,000.00 or more..." to submit a statement of assets and liabilities "... regardless of the networth," the mandate in the latter law is for ALL government employees and officials to submit a statement of assets and liabilities. Hence, the prosecution under these two laws are separate and distinct from each other. Tanodbayan also explained that delay in the conduct of preliminary investigation does not impair the validity of the informations filed and that neither will it render said informations defective. Finally, Tanodbayan added that P.D. 911, the law which governs preliminary investigations is merely directory insofar as it fixes a period of ten (10) days from its termination to resolve the preliminary investigation. On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying petitioner's motion to quash, the dispositive portion of which reads: WHEREFORE, prescinding therefrom, We find, and so hold, that the accused's "Consolidated Motion to Quash" should be as it is hereby, denied for lack of merit. Conformably to Rule 117, Section 4 of the 1985 Rules on Criminal Procedure, the defect in the information in Criminal Case No. 10500 being one which could be cured by amendment, the Tanodbayan is hereby directed to amend said information to change the date of the alleged commission of the offense therein charged fromJanuary 31, 1974 to September 30, 1974 within five (5) days from receipt hereof. SO ORDERED. On August 10, 1985, in compliance with the Sandiganbayan's resolution of August 8, 1985, the Tanodbayan filed an

138

amended information in Criminal Case No. 10500, changing the date of the commission of the offense to September 30, 1974. On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was denied by the Sandiganbayan September 17, 1985. Hence, petitioner filed this petition on October 16, 1985 assailing the denial of his motion to quash. On October 22, 1985, the Court, without giving due course the petition, resolved to require the respondents to comment thereon and issued a temporary restraining order effective immediately and continuing until further orders of the Court, enjoining the respondents Sandiganbayan and Tanodbayan from continuing with the trial and other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503. In compliance with said resolution, the respondents, through ,Solicitor General Estelito P. Mendoza, filed their comment on January 6, 1986. On April 10, 1986, the Court required the parties to move in the premises considering the supervening events, including the change of administration that had transpired, and the provisions of Sec. 18, Rule 3 of the Rules of Court, insofar far as the Public respondents were concerned, which requires the successor official to state whether or not he maintains the action or position taken by his predecessor in office. On June 20, 1986, the new Tanodbayan manifested that since "the charges are not political offenses and they have no political bearing whatsoever," he had no alternative but to pursue the cases against the petitioner, should the Court resolve to deny the petition; that in any event, petitioner is not precluded from pursuing any other legal remedies under the law, such as the filing of a motion for re-evaluation of his cases with the Tanodbayan. The new Solicitor General filed a manifestation dated June 27, 1986 in which he concurred with the position taken by the new Tanodbayan. Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion for re-evaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the cases in question be re-evaluated and the informations be quashed. The Court is not aware of what action, if any, has been taken thereon by the Tanodbayan. However, be that as it may, the filing of the aforesaid motion for re-evaluation with the Tanodbayan has no material bearing insofar as the duty of this Court to resolve the issues raised in the instant petition is concerned. Petitioner has raised the following issues in his petition: 1. Whether the prosecution's long delay in the filing of these cases with the Sandiganbayan had deprived petitioner of his constitutional light to due process and the right to a speedy disposition of the cases against him. 2. Whether the crimes charged has already prescribed. 3. Whether there is a discriminatory prosecution of the petitioner by the Tanodbayan. 4. Whether Sandiganbayan should have ruled on the question of amnesty raised by the petitioner. 5. Whether petitioner's contention of the supposed lack or non- existence of prima facie evidence to sustain the filing of the cases at bar justifies the quashal of the questioned informations.

Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due process" and "speedy disposition of cases" in unduly prolonging the termination of the preliminary investigation and in filing the corresponding informations only after more than a decade from the alleged commission of the purported offenses, which amounted to loss of jurisdiction and authority to file the informations. The respondent Sandiganbayan dismissed petitioner's contention, saying that the applicability of the authorities cited by him to the case at bar was "nebulous;" that it would be premature for the court to grant the "radical relief" prayed for by petitioner at this stage of the proceeding; that the mere allegations of "undue delay" do not suffice to justify acceptance thereof without any showing "as to the supposed lack or omission of any alleged procedural right granted or allowed to the respondent accused by law or administrative fiat" or in the absence of "indubitable proof of any irregularity or abuse" committed by the Tanodbayan in the conduct of the preliminary investigation; that such facts and circumstances as would establish petitioner's claim of denial of due process and other constitutionally guaranteed rights could be presented and more fully threshed out at the trial. Said the Sandiganbayan: That there was a hiatus in the proceedings between the alleged termination of the proceedings before the investigating fiscal on October 25, 1982 and its resolution on April 17, 1985 could have been due to certain factors which do not appear on record and which both parties did not bother to explain or elaborate upon in detail. It could even be logically inferred that the delay may be due to a painstaking an gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official. In this respect, We are the considered opinion that the provision of Pres. Decree No. 911, as amended, regarding the resolution of a complaint by the Tanodbayan within ten (10) days from termination of the preliminary investigation is merely "directory" in nature, in view of the nature and extent of the proceedings in said office. The statutory grounds for the quashal of an information are clearly set forth in concise language in Rule 117, Section 2, of the 1985 Rules on Criminal Procedure and no other grounds for quashal may be entertained by the Court prior to arraignment inasmuch as it would be itself remiss in the performance of its official functions and subject to the charge that it has gravely abused its discretion. Such facts and circumstances which could otherwise justify the dismissal of the case, such as failure on the part of the prosecution to comply with due process or any other constitutionally-guaranteed rights may presented during the trial wherein evidence for and against the issue involved may be fully threshed out and considered. Regrettably, the accused herein attempts to have the Court grant such a radical relief during this stage of the proceedings which precludes a precocious or summary evaluation of insufficient evidence in support thereof.

139

This brings us to the crux of the issue at hand. Was petitioner deprived of his constitutional right to due process and the right to "speedy disposition" of the cases against him as guaranteed by the Constitution? May the court, ostrich like, bury its head in the sand, as it were, at the initial stage of the proceedings and wait to resolve the issue only after the trial? In a number of cases, 1 this Court has not hesitated to grant the so-called "radical relief" and to spare the accused from undergoing the rigors and expense of a full-blown trial where it is clear that he has been deprived of due process of law or other constitutionally guaranteed rights. Of course, it goes without saying that in the application of the doctrine enunciated in those cases, particular regard must be taken of the facts and circumstances peculiar to each case. Coming to the case at bar, the following relevant facts appear on record and are largely undisputed. The complainant, Antonio de los Reyes, originally filed what he termed "a report" with the Legal Panel of the Presidential Security Command (PSC) on October 1974, containing charges of alleged violations of Rep. Act No. 3019 against then Secretary of Public Information Francisco S. Tatad. The "report" was made to "sleep" in the office of the PSC until the end of 1979 when it became widely known that Secretary (then Minister) Tatad had a falling out with President Marcos and had resigned from the Cabinet. On December 12, 1979, the 1974 complaint was resurrected in the form of a formal complaint filed with the Tanodbayan and docketed as TBP Case No. 8005-16-07. The Tanodbayan acted on the complaint on April 1, 1980-which was around two months after petitioner Tatad's resignation was accepted by Pres. Marcos by referring the complaint to the CIS, Presidential Security Command, for investigation and report. On June 16, 1980, the CIS report was submitted to the Tanodbayan, recommending the filing of charges for graft and corrupt practices against former Minister Tatad and Antonio L. Cantero. By October 25, 1982, all affidavits and counteraffidavits were in the case was already for disposition by the Tanodbayan. However, it was only on July 5, 1985 that a resolution was approved by the Tanodbayan, recommending the ring of the corresponding criminal informations against the accused Francisco Tatad. Five (5) criminal informations were filed with the Sandiganbayan on June 12, 1985, all against petitioner Tatad alone. A painstaking review of the facts can not but leave the impression that political motivations played a vital role in activating and propelling the prosecutorial process in this case. Firstly, the complaint came to life, as it were, only after petitioner Tatad had a falling out with President Marcos. Secondly, departing from established procedures prescribed by law for preliminary investigation, which require the submission of affidavits and counter-affidavits by the complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to the Presidential Security Command for finding investigation and report. We find such blatant departure from the established procedure as a dubious, but revealing attempt to involve an office directly under the President in the prosecutorial process, lending credence to the suspicion that the prosecution was politically motivated. We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends or other purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice even handedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may the public's perception of the of the prosecutor be enhanced.

Moreover, the long delay in resolving the case under preliminary investigation can not be justified on the basis of the facts on record. The law (P.D. No. 911) prescribes a tenday period for the prosecutor to resolve a case under preliminary investigation by him from its termination. While we agree with the respondent court that this period fixed by law is merely "directory," yet, on the other hand, it can not be disregarded or ignored completely, with absol