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[G.R. Nos. L-33037-42. August 17, 1983.] PEOPLE OF THE PHILIPPINES, plaintiffappellant, vs. DEMETRIO JARDIN, accusedappellee.

The Solicitor-General for plaintiff-appellant. Marcos C. Lucero, Jr. for accused-appellee. DECISION GUTIERREZ, JR., J p: Two constitutional rights speedy trial and freedom from double jeopardy are interposed as defenses by the accused in this petition for review on certiorari. The petitioner asks us to review and annul the orders of the Court of First Instance of Quezon, Branch V, which dismissed the criminal cases against accused Demetrio Jardin because his constitutional right to speedy trial was allegedly violated. The criminal prosecutions originated from a letter-complaint of the Provincial Auditor of Quezon requesting the Provincial Fiscal to file the necessary criminal action under Article 217 of the Revised Penal Code against Demetrio Jardin for malversation of public funds thru falsification of public documents on six counts. LLjur The cases were assigned to Assistant Fiscal Meliton V. Angeles who set them for preliminary investigation. The accused moved to postpone the preliminary investigation twice. On the third time that the investigation was reset, the accused and his counsel failed to appear.

On the fourth resetting, the accused and his counsel again failed to appear. Inspite of their absence, the preliminary investigation was conducted and shortly afterwards, six informations were filed against the accused before the Court of First Instance of Quezon, Branch II, docketed as Criminal Cases Nos. 16052 (0043-M), 16053 (0044-M), 16054 (0045M), 16055 (0046-M), 16056 (0047-M), and 16057 (0048-M). The arraignment was set for May 9, 1967. The records show that from May 9, 1967, the arraignment was re-set for June 6; then re-set for June 26; then from August 16, the same was re-set for September 5, all because of the motions for postponement filed at the instance of the accused. (Original records [0043-M] pp. 54, 61, 66 and 69). When the arraignment of the accused was called on September 5, 1967, counsel for the accused verbally moved for reinvestigation on the ground that the accused was not given the opportunity to present his defense during the preliminary investigation. This was granted by the court and the first reinvestigation was set on November 24, 1967. On this date, however, the Investigating Fiscal motu proprio postponed said reinvestigation due to the non-appearance of accused and his counsel and re-set the date for December 21, 1967. LLpr A series of postponements was again filed by the accused causing further delays of the reinvestigation. On June 27, 1968, accused and his counsel appeared together but requested for a period of fifteen (15) days within which to file a memorandum.

In view of the expiration of the 15-day period, the Investigating Fiscal filed a manifestation before the court that the records of these cases be returned and the trial on the merits of the same be set. The court without acting on said manifestation, issued an order transferring the six (6) cases to the new branch (Branch V) of the Court of First Instance at Mauban, Quezon. Upon receipt by the latter of the records of these cases, the arraignment and trial were set for December 3, 1968. On the latter date, the counsel for the accused sought again the postponement of the arraignment and this was followed by more postponements, all at the instance of the accused. (Original records, [0043-M], pp. 90, 93, 120 and 125). On March 31, 1969, counsel for the accused moved for the postponement of the arraignment and requested the court that the records be returned again to the Office of the Fiscal for further reinvestigation. This was granted and the reinvestigation was again set for May 5, 1969. The accused and his counsel, however, failed to appear and thus, the said reinvestigation was re-set for June 2, 1969. On this date, counsel for accused requested that he be given five (5) days within which to file a written sworn statement of the accused which would constitute the defense of the latter, subject to the cross-examination of the Investigating Fiscal. Considering the fact that the period to file such sworn statement had already expired without anything being filed, the records of the cases were returned to the court which set said cases

for arraignment and trial on September 2, 1970. On this date, the accused again moved for postponement. When these cases were called for arraignment on September 8, 1970, Demetrio Jardin, pleaded not guilty to the crime as charged, after which he requested that the trial be postponed and re-set for September 29, 1970. On September 29, 1970, the trial scheduled on that day was postponed again on motion of counsel for the accused. The trial was re-set for October 12, 1970, with notice to both parties. On October 12, 1970, when the said criminal cases were called for hearing, no one appeared for the prosecution, except a state witness, Mr. Cesar Alcala of the Provincial Auditor's office who remained silent during the proceedings. Invoking his client's constitutional right to speedy trial and seizing the opportunity to take advantage of the prosecution's failure to appear on that day, the defense counsel moved for the dismissal of the cases. The respondent court granted the oral motion for dismissal "for reasons of constitutional rights of the accused Demetrio Jardin." Cdpr Two questions are now raised by the People in this appeal: I. Considering the factual setting in the criminal cases at bar, was the respondent Court correct in dismissing the cases and in predicating the dismissal on the right of the defendant to a speedy trial? II. Does the present appeal place the respondent accused in double jeopardy?

The respondent court committed a grave abuse of discretion in dismissing the cases and in basing the dismissal on the constitutional right of the accused to speedy trial. The right to a speedy trial means that the accused is free from vexatious, capricious, and oppressive delays, its salutary objective being to assure that an innocent person may be free from anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatever legitimate defense he may interpose. (See Andres v. Cacdac, 113 SCRA 216) From a perusal of the facts, it is readily seen that all the delays in the prosecution of the cases were caused by the accused himself. All the postponements of proceedings were made at his instance and for his behalf. Hence, the constitutional right to a speedy trial afforded to an accused by our Constitution cannot be invoked. From the start of the preliminary investigation of the cases up to the trial on the merits, the accused always managed to delay the proceedings through postponements and requests for reinvestigation. It would, therefore, be a mockery of the criminal justice system if the accused would be allowed to benefit from his own wrongdoings or tactical maneuvers intended to frustrate the administration of justice. By his own deliberate acts, he is deemed to have waived or abandoned his right to a speedy trial. In the case of Andres v. Cacdac, 113 SCRA 216, we ruled: "In this case, however, there was a waiver or abandonment of the right to a speedy trial in the first case when the herein petitioners

sought and obtained several postponements of the trial: first, when they asked for the deferment of the arraignment because the accused Ladislao Tacipit was not present; second, when they asked for the postponement of the trial for March 5, 1968 upon the ground that they have requested the Provincial Fiscal of Cagayan for a reinvestigation of the case; and finally, when they agreed, with the prosecution, to postpone the hearing set for November 28, 1968 to January 4, 1969" . . . . The dismissal of the criminal cases against the accused by the respondent court on the ground that his right to speedy trial had been violated was devoid of factual and legal basis. The order denying the motion for reconsideration is similarly infirm. There being no basis for the questioned orders, they are consequently null and void. prcd Would a reinstatement of the dismissed cases place the accused in double jeopardy? In order that the protection against double jeopardy may inure to the benefit of an accused, the following requisites must be present in the first prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. (Rule 117, Section 9, Rules of Court; People v. Ledesma, 73 SCRA 77). The last requisite assumes a valid acquittal and a valid acquittal presupposes a valid judgment by a court of competent jurisdiction. Since in the instant cases, the dismissal was void for having been issued without legal basis, it follows that

the acquittal brought about by the dismissal is also void. Hence, no jeopardy can attach from such acquittal. The act of respondent judge in dismissing the cases amounted to lack of jurisdiction which would prevent double jeopardy from attaching. In the case of People v. Court of Appeals 101 SCRA 450) we ruled: "Private respondents further argue that a judgment of acquittal ends the case which cannot be appealed nor reopened, otherwise, they would be put twice in jeopardy for the same offense. That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all. (Comia v. Nicolas, 29 SCRA 492 [1969]) By it, no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. (Gomez v. Concepcion, 47 Phil. 717, 722 [1925]; Chavez v. Court of Appeals, 24 SCRA 663, 685 [1968]; Paredes v. Moya, 61 SCRA 526, [1974]).". . . We also note that the dismissal of the criminal cases was upon motion and with the express consent of respondent Demetrio Jardin. For double jeopardy to attach, the general rule is that the dismissal of the case must be without the express consent of the accused. (People v. Salico, 84 Phil. 722; People v. Obsania, 23 SCRA 1249; People v. Pilpa, 79 SCRA 81; and People v. Cuevo, 104 SCRA 312).

If the accused had been denied his right to speedy trial or if some other basic right had been impaired, the doctrine of waiver of the right to invoke double jeopardy would not apply even if the accused had expressly moved for the termination of proceedings, In the instant case, however, the defendant had deliberately used all the available dilatory tactics he could utilize and abused the principle that the accused must be given every opportunity to disprove the criminal charge. The doctrine of double jeopardy was never intended for this purpose. cdrep Even as we rule that the lower court acted with grave abuse of discretion, we also rebuke the attorneys for both the defense and the prosecution and to a certain extent, the court itself because of the breach of duties to the courts and to the administration of justice apparent in this case. The duties of an attorney found in Rule 138, Section 20 include: xxx xxx xxx

The dilatory tactics of the defense counsel and the failure of both the judge and the fiscal to take effective counter measures to obviate the delaying acts constitute obstruction of justice. As aptly stated: 12.09 Obstructing the administration of justice An attorney as an officer of the court is called upon to assist in the due administration of justice. Like the court itself, he is an instrument to advance its cause. (Surigao Mineral Reservation Board v. Cloribel, G.R. No. 11071, Jan. 9, 1972, 31 SCRA 1; In re Climaco, G.R. Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107) For this reason, any act on the part of a lawyer that obstructs, perverts or impedes the administration of justice constitutes misconduct and justifies disciplinary action against him. (Cantorne v. Ducasin, 57 Phil. 23 [1932]; De los Santos v. Sagalongos, 69 Phil. 406 [1940]). Acts which amount to obstruction in the administration of justice may take many forms. They include such acts as instructing a complaining witness in a criminal action not to appear at the scheduled hearing so that the case against the client, the accused, would be dismissed. (Cantorne v. Ducasin, supra) asking a client to plead guilty to a crime which the lawyer knows his client did not commit, (Nueno v. Santos, 58 Phil. 557 [1933]) advising a client who is detained for a crime to escape from prison, (Cf. Medina v. Yan, G.R. No. 30978, Sept. 30, 1974) employing dilatory tactics to frustrate satisfaction of clearly valid claims, (Pajares v. Abad Santos, G.R. No. 29543, Nov. 29, 1969, 30 SCRA 748) prosecuting clearly frivolous cases or appeals to drain the resources of the other

(d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, . . . xxx xxx xxx

(g) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, from any corrupt motive or interest. xxx xxx xxx

party and compel him to submit out of exhaustion (Samar Mining Co. v. Arnado, G.R. No. 22304. July 30, 1968) and filing multiple petitions or complaints for a cause that has been previously rejected in the false expectation of getting favorable action. (Gabriel v. Court of Appeals, G.R. No. 43757, July 30, 1976, 72 SCRA 173; Ramos v. Potenciano, G.R. No. 27104, Dec. 20, 1976, 74 SCRA 345; Macias v. Uy Kim, G.R. No. 31174, May 30, 1972, 45 SCRA 251) Acts of this or similar nature are grounds for disciplinary action." (Agpalo, Legal Ethics, U.P. Law Center, 1980 Edition, pp. 405406) The invocation of constitutional rights by the private respondent is without merit. WHEREFORE, the petition is GRANTED and the questioned orders of the respondent court are hereby SET ASIDE. Criminal Cases Nos. 0043-M, 0044-M, 0045-M, 0046-M, 0047-M, and 0048-M are reinstated and the proper regional trial court is ordered to proceed with all deliberate speed in these cases. SO ORDERED. Melencio-Herrera and Vasquez, JJ ., concur. Teehankee, Actg. C .J ., took no part. Plana, J ., in the result. Relova, J ., for the reason that the dismissal was with the express consent of the accused, he was not in jeopardy. [G.R. No. L-23956. July 21, 1967.] ELPIDIO JAVELLANA, plaintiff-appellant, vs. NICOLAS LUTERO, Judge of the Municipal Court

of Iloilo City and the ROMAN CATHOLIC ARCHBISHOP OF JARO, defendants-appellees. Hautea & Hinojales for plaintiff and appellant. Luisito C . Hofilea for defendants and appellees. DECISION CASTRO, J p: This is an appeal from a decision of the Court of First Instance of Iloilo (CC 6425) dismissing a petition for relief directed against the judgment rendered by the municipal court of Iloilo City in its civil case 7220. On March 29, 1963 the Roman Catholic Archbishop of Jaro, Iloilo filed a detainer complaint against Elpidio Javellana with the municipal court of Iloilo City, presided by Judge Nicolas Lutero. The hearing, originally set for April 30, 1963, was postponed to May 24 for failure of the defendant to receive summons, and then postponed again to June 27 for the same reason. It was thereafter postponed to July 16, then to July 24, and finally to August 27, all at the behest of the defendant's Atty. Jose Hautea, on the grounds that "he has not finished his business transactions in Manila" and that "he hurt his right foot toe". The last postponement was granted by the municipal court with the warning that no further postponement would be entertained. When the case was called for trial on August 27, 1963, neither the defendant nor his counsel Atty. Hautea appeared although one Atty. Romy Pea who was present in court verbally moved for the postponement of the trial on the ground that Atty. Hautea was in Manila attending to a

business transaction. The plaintiff's counsel objected to the motion on the ground that the defendant and his counsel were well aware of the court's previous admonition that no further postponement of the case would be granted, and then manifested that the witnesses and the evidence for the plaintiff were ready for presentation on that date. The verbal motion for postponement was denied and the plaintiff was directed to adduce his evidence. During the presentation of the plaintiffs evidence, the municipal court received a telegram from Atty. Hautea requesting postponement of the hearing. The trial proceeded nevertheless, and, on the basis of the plaintiff's evidence, the court on the same date rendered judgment for the plaintiff and against the defendant. The latter's counsel received a copy of the decision on September 9, 1963. On the following September 11, he filed a motion to set aside judgment and for new trial. This motion was denied on September 26; a copy of the order of denial was received by him on the same date. On November 16, 1963, or about 50 days later, the defendant thru his same counsel filed a petition for relief (from the judgment of the municipal court) with the Court of First Instance of Iloilo, praying that the decision in question be set aside, that the retainer case be set for trial on the merits, and, pending determination of the petition, that an injunction issue restraining the enforcement of the decision. Counsel for the petitioner averred that his absence on the date of the trial was excusable as he attended to a very urgent business transaction in Manila; that before his departure for the latter city, he verbally informed the respondent judge that his return to Iloilo might be delayed and that he might not arrive on time for the trial of the case

as set; that he called at both the law office and the residence of the counsel for the private respondent to inform him of the desired postponement and the reason therefor, but the latter was in Bacolod at the time; that he exercised utmost diligence and precaution in the sense that while in Manila he sent a telegram to the respondent judge, asking for postponement; and that notwithstanding all the foregoing, the municipal court nevertheless proceeded with the trial in his absence and that of his client, allowed the private respondent to present his evidence ex parte, and rendered a decision against the petitioner, thus depriving the latter of his day in court. Counsel for the petitioner further asserted that his client has a good and substantial defense, which is, that the complainant had given his client an option to buy the premises subject-matter of the complaint below, and that a reopening of the case would cause the private respondent no real injury. This petition was given due course, the respondents were acquired to file their answers, and a cease-and-desist order was issued as prayed for. On February 22, 1964, after due hearing, the Court of First Instance rendered judgment dismissing the petition. Hence the present recourse. From the perspective of the environmental circumstances obtaining in this case, the present appeal is palpably devoid of merit. A counsel for any party in a judicial controversy, by mandate of the canons of legal ethics, and with due regard for the elementary standards of fair play, is duty bound to prepare for trial

with diligence and deliberate speed. This norm of conduct is no less applicable in a detainer case, such as the one at bar, even if the issues are essentially simple and uncomplicated. It is obvious that the counsel for the petitionerappellant has been remiss in this respect. The case was set for trial six times. Thrice it was postponed at the behest of the said counsel. The last postponement was granted on July 24, 1963 with the unequivocal admonition by the judge that no further postponement would be countenanced. The case was reset for hearing on August 27, 1963, which means that the appellant's counsel had more than a month's time to so adjust his schedule of activities as to obviate a conflict between his business transactions and his calendar of hearings. Came August 27, and neither he nor the appellant appeared at the trial. His absence on the latter date was not occasioned by illness or some other supervening occurrence which unavoidably and justifiably prevented him from appearing in court. In our view, it was the bounden duty of the said counsel, under the circumstances, to give preferential attention to the case. As things were, he regarded the municipal court as a mere marionette that must ever await his pleasure. This attitude on his part is censurable as it reveals more than just a modicum of disrespect for the judiciary and the established machinery of justice. Nor is his censurable conduct mitigated by the appearance in court on August 27 of another attorney who verbally moved for postponement nor by his telegram received by the municipal judge on the same date asking for continuance.

These circumstances, upon the contrary, emphasize his presumptuousness vis-a-vis the municipal judge. It is thus crystal-clear from the foregoing disquisition that the petitioner-appellant was not deprived of his day in court, and that the respondent municipal judge did not err in proceeding with the trial, allowing the private respondent to present his evidence ex parte, and thereafter rendering decision for the plaintiff-appellee. It follows that the petitioner was not entitled to the remedy of a petition for relief. Moreover, after the denial of his motion to set aside judgment and for new trial, the appellant had ample time to appeal; instead he allowed the judgment to become final and executory. His argument that an appeal would have been futile as there was no evidence upon which such appeal could be based, merits scant consideration. An appeal from the decision of a municipal court to the Court of First Instance has the effect of vacating the decision (sec. 9, Rule 40, new Rules of Court; sec. 9, Rule 40, of the old Rules), and the action is to be tried de novo without regard to the proof presented in the municipal court or the conclusions reached thereon (Colegio de San Jose vs. Sison, 56 Phil. 344, 351; Lizo vs. Carandang 73 Phil. 649; Crisostomo vs. Director of Prisons, 41 Phil. 368). To grant the appellant's petition for relief would amount to reviving his right to appeal which he had irretrievably lost through the gross inaction of his counsel (see Espinosa vs. Yatco, etc., et al., L-16435, Jan. 31, 1963, and the cases therein cited). This in law cannot be done.

Accordingly, the decision appealed from is affirmed. As this appeal is patently frivolous and dilatory, this Court, under the authority of section 3 of Rule 142 of the Rules of Court, hereby assesses treble costs against the petitioner-appellant Elpidio Javellana, said costs to be paid by his counsel, Atty. Jose Hautea. Reyes, J .B.L., Makalintal, Bengzon, J .P., Zaldivar, Sanchez, Angeles and Fernando, JJ ., concur. Concepcion, C .J . and Dizon, J ., did not take part. [G.R. No. L-35867. June 28, 1973.] FRANCISCO A. ACHACOSO, in his own behalf and in behalf of Capital Insurance & Surety Co., Inc., petitioners, vs. THE HON. COURT OF APPEALS, COTRAM, S.A., CAPITAL LIFE ASSURANCE CORP., and JOAQUIN G. GARRIDO, respondents. Rodrigo M . Nera for petitioner. Norberto J . Quisumbing & R. P. Mosqueda for private respondents. RESOLUTION TEEHANKEE, J p: The Court censures the practice of counsels who secure repeated extensions of time to file their pleadings and thereafter simply let the period lapse without submitting the pleading or even an explanation or manifestation of their failure to do so. The Court herein reprimands petitioner's counsel for such misconduct with the warning that a repetition thereof will be dealt with more severely.

Upon the filing on December 15, 1972 of the petition at bar for review of the Court of Appeals' decision dismissing petitioner's petition for mandamus filed with said court to compel the Manila court of first instance to allow petitioner's proposed appeal from its adverse judgment dismissing plaintiff's complaint, the Court per its resolution of December 2, 1972 required respondents to comment thereon. Respondents filed on February 8, 1973 an extensive eighteen page comment, and petitioner's counsel, Rodrigo M. Nera, filed on February 12, 1973 a motion for leave to file reply within 15 days from notice, alleging that there was need for such reply "in order that this Honorable Court may be fully and completely informed of the nature of the controversy which gave rise to the instant petition." The Court granted such leave per its resolution of February 23, 1973, and notice of such leave was served on counsel on February 27, 1973. On the last day for filing of the reply, viz, March 14, 1973, counsel asked for an additional 15 days averring that "due to the pressure of urgent professional work and daily trial engagements of the undersigned counsel during the original period granted, he has not had sufficient material time to complete the preparation of petitioner's reply." The Court granted the requested extension per its resolution of March 20, 1973. On the last day of the extended period for filing of the reply, viz, March 29, 1973, counsel again asked for still another 15-day extension, stating that "due to the pressure of urgent professional work and daily trial engagements of the

undersigned counsel, he has not had sufficient material time to complete the preparation of petitioner's reply. The undersigned counsel humbly apologizes that in view of his crowded schedule, he has been constrained to ask for this extension, but respectfully assures the Honorable Court that this will be the last one requested." As per its resolution of April 6, 1973, the Court granted counsel's motion for such third and last extension. The period for the filing of petitioner's reply lapsed on April 13, 1973 without counsel having filed any reply or manifestation explaining his failure to do so. Accordingly, the Court in its resolution of May 24, 1973 denying the petition for review for lack of merit, further required petitioner's counsel to show cause why disciplinary action should not be taken against him for failure to file the reply after having obtained such leave and three extensions of time within which to do so. Counsel filed in due course his verified Explanation dated June 7, 1973, stating that he was retained in the case "on a piece-work basis on the verbal understanding that all expenses for the preparation of pleadings and the cost of services of a stenographer-typist shall be furnished in advance by petitioner upon being notified thereof;" that when he asked for a third extension on March 29, 1973, he so informed petitioner and requested him to "remit the expenses for the preparation of the reply as per agreement" and that he tried to contact petitioner before the expiration of the extended period but failed to do so as petitioner "was then most of the time out of his office."

Counsel relates that it was only on May 30, 1973 when he received notice of the Court's resolution of May 24, 1973 denying the petition and requiring his explanation long after the expiration on April 13, 1973 of the extended period for the filing of the reply that he wrote petitioner and in turn asked petitioner to explain the latter's failure to comply with his request for a remittance of P500.00 to cover the necessary expenses, and that petitioner had replied that counsel's letter had been misplaced by a clerk, and hence, petitioner had "failed to act on the same." Counsel pleads that "this counsel has not the least intention of delaying the administration of justice and much less trifle with the resolutions and orders of this Honorable Court. The inability of this counsel to submit the reply within the third extension granted by this Honorable Court was due to supervening circumstances which could not be attributed to this counsel;" and that "if this poor and humble practitioner has been impelled to inaction, it surely was not intentional on his part, the truth of the matter being that this counsel was just helpless in the face of petitioner's failure to comply with his commitments aforesaid;" and that "this counsel deeply regrets this incident and hereby apologizes to this Honorable Court for all his shortcomings relative to this case, which after all were due to causes and circumstances not of his own making and far beyond his control." Counsel's explanation is far from satisfactory. If indeed he was not in a financial position to advance the necessary expenses for preparing and submitting the reply, then he could have filed timely the necessary manifestation that he was foregoing the filing of such reply on

petitioner's behalf. His inaction unduly delayed the Court's prompt disposition of the case after the filing by respondents on February 8, 1973 of their comments on the petition showing its lack of merit. The Court would have then so disposed of the petition had it not been for petitioner's plea to be given time and opportunity to file a reply to the comments in order to fully apprise the Court of the nature of the controversy, which plea the Court granted in reliance on his good faith. Yet after having obtained three extensions of time for the filing of the reply, counsel simply failed to file any reply nor to give the Court the courtesy of any explanation or manifestation for his failure to do so. Counsel readily perceived in his explanation that his conduct comes close to delaying the administration of justice and trifling with the Court's processes. It does not reflect well on counsel's conduct as an officer of the Court that after assuring the Court that the third extension requested by him "in view of his crowded schedule" and "of urgent professional work and daily trial engagements" would be the last within which period he would at last file the awaited reply, for him thereafter to let the period simply lapse without any explanation whatsoever, and worse, to wait to be found out, and have the Court require him to explain. Considering, however, that counsel's record shows no previous infractions on his part since his admission to the Philippine Bar in 1953, the Court is disposed to be lenient in this instance. ACCORDINGLY, the Court hereby administers a reprimand on Atty. Rodrigo M. Nera, with the warning that a repetition of the same or similar

acts shall be dealt with more severely. Let a copy of this resolution be filed in his personal record. Makalintal, Actg. C.J., Zaldivar, Castro, Fernando, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

[G.R. Nos. L-33037-42. August 17, 1983.] PEOPLE OF THE PHILIPPINES, plaintiffappellant, vs. DEMETRIO JARDIN, accusedappellee. The Solicitor-General for plaintiff-appellant. Marcos C. Lucero, Jr. for accused-appellee. SYLLABUS 1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; DISMISSAL OF CASE WITHOUT ANY FACTUAL OR LEGAL BASIS CONSTITUTES GRAVE ABUSE OF DISCRETION. The respondent Court committed grave abuse of discretion in dismissing the cases and in basing the dismissal on the constitutional right of the accused to speedy trial. From a perusal' of the facts, it is readily seen that all the delays in the prosecution of the cases were caused by the accused himself. 2. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; RIGHT TO A SPEEDY TRIAL DEFINED. The right to a speedy trial means that the accused is free from vexatious, capricious, and oppressive delays, its salutory objective being to assure that an innocent person may be free from anxiety and expense of a court litigation or, if otherwise, of having

his guilt determined within the shortest time possible compatible with the presentation and consideration of whatever legitimate defense be may interpose (Andres vs. Cacdac, 113 SCRA 216). 3. ID.; ID.; ID.; ID.; NOT VIOLATED WHERE DELAYS WERE CAUSED BY ACCUSED HIMSELF. All the postponements of proceeding made at the instance of the accused and for his behalf. Hence, the Constitutional right to a speedy trial afforded to an accused cannot be invoked. 4. ID.; ID.; PROTECTION AGAINST DOUBLE JEOPARDY; WHEN IT MAY INURE TO THE BENEFIT OF ACCUSED. In order that the protection against double jeopardy may inure to the benefit of an accused, the following requisites must be present in the first prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted or convicted, or the case against him was dismissed or otherwise terminated without his express consent Rule 117, Sec. 9, Rules 9 of Court; People vs. Ledesma, 73 SCRA 77). 5. ID.; ID.; ID.; VALID ACQUITTAL FROM A VALID JUDGMENT A REQUISITE. A valid acquittal presupposes a valid judgment by a court of competent jurisdiction. Since, in the instant case, the dismissal was void for having been issued without legal basis, it follows that the acquittal brought about by the dismissal is also void. Hence, up jeopardy can attached from such acquittal. 6. ID.; ID.; PROTECTION AGAINST DOUBLE JEOPARDY; NO WAIVER THEREOF WHERE

DISMISSAL WAS UPON MOTION OF THE ACCUSED BASED ON SPEEDY TRIAL; EXECUTION. If the accused had been denied his right to speedy trial or if some other basic tight had been impaired the doctrine of waiver of the right to invoke double jeopardy wound not apply even if the accused had expressly moved for the termination of Proceedings In the instant case, however, the defendant had deliberately used all the available dilatory tactics he could utilize. The doctrine of double jeopardy was never intended for this purpose. 7. ID. ADMINISTRATIVE SUPERVISION OF COURTS; EMPLOYMENT OF DILATORY TACTICS AND FAILURE TO OBVIATE THE SAME CONSTITUTE OBSTRUCTION OF JUSTICE. Even as we rule that the lower court acted with grave abuse of discretion, we also rebuke the attorney' for both the defense and the prosecution and to a certain extent, the court itself because of the breach of duties to the wants and to the administration of justice apparent in this case. The dilatory tactics of the defense counsel and the failure of both the judge and the fiscal to take effective counter measures to obviate the delaying acts constitute obstruction of justice. DECISION GUTIERREZ, JR., J p: Two constitutional rights speedy trial and freedom from double jeopardy are interposed as defenses by the accused in this petition for review on certiorari. The petitioner asks us to review and annul the orders of the Court of First Instance of Quezon, Branch V, which dismissed the criminal cases

against accused Demetrio Jardin because his constitutional right to speedy trial was allegedly violated. The criminal prosecutions originated from a letter-complaint of the Provincial Auditor of Quezon requesting the Provincial Fiscal to file the necessary criminal action under Article 217 of the Revised Penal Code against Demetrio Jardin for malversation of public funds thru falsification of public documents on six counts. LLjur The cases were assigned to Assistant Fiscal Meliton V. Angeles who set them for preliminary investigation. The accused moved to postpone the preliminary investigation twice. On the third time that the investigation was reset, the accused and his counsel failed to appear. On the fourth resetting, the accused and his counsel again failed to appear. Inspite of their absence, the preliminary investigation was conducted and shortly afterwards, six informations were filed against the accused before the Court of First Instance of Quezon, Branch II, docketed as Criminal Cases Nos. 16052 (0043-M), 16053 (0044-M), 16054 (0045M), 16055 (0046-M), 16056 (0047-M), and 16057 (0048-M). The arraignment was set for May 9, 1967. The records show that from May 9, 1967, the arraignment was re-set for June 6; then re-set for June 26; then from August 16, the same was re-set for September 5, all because of the motions for postponement filed at the instance of the accused. (Original records [0043-M] pp. 54, 61, 66 and 69).

When the arraignment of the accused was called on September 5, 1967, counsel for the accused verbally moved for reinvestigation on the ground that the accused was not given the opportunity to present his defense during the preliminary investigation. This was granted by the court and the first reinvestigation was set on November 24, 1967. On this date, however, the Investigating Fiscal motu proprio postponed said reinvestigation due to the non-appearance of accused and his counsel and re-set the date for December 21, 1967. LLpr A series of postponements was again filed by the accused causing further delays of the reinvestigation. On June 27, 1968, accused and his counsel appeared together but requested for a period of fifteen (15) days within which to file a memorandum. In view of the expiration of the 15-day period, the Investigating Fiscal filed a manifestation before the court that the records of these cases be returned and the trial on the merits of the same be set. The court without acting on said manifestation, issued an order transferring the six (6) cases to the new branch (Branch V) of the Court of First Instance at Mauban, Quezon. Upon receipt by the latter of the records of these cases, the arraignment and trial were set for December 3, 1968. On the latter date, the counsel for the accused sought again the postponement of the arraignment and this was followed by more postponements, all at the instance of the accused. (Original records, [0043-M], pp. 90, 93, 120 and 125).

On March 31, 1969, counsel for the accused moved for the postponement of the arraignment and requested the court that the records be returned again to the Office of the Fiscal for further reinvestigation. This was granted and the reinvestigation was again set for May 5, 1969. The accused and his counsel, however, failed to appear and thus, the said reinvestigation was re-set for June 2, 1969. On this date, counsel for accused requested that he be given five (5) days within which to file a written sworn statement of the accused which would constitute the defense of the latter, subject to the cross-examination of the Investigating Fiscal. Considering the fact that the period to file such sworn statement had already expired without anything being filed, the records of the cases were returned to the court which set said cases for arraignment and trial on September 2, 1970. On this date, the accused again moved for postponement. When these cases were called for arraignment on September 8, 1970, Demetrio Jardin, pleaded not guilty to the crime as charged, after which he requested that the trial be postponed and re-set for September 29, 1970. On September 29, 1970, the trial scheduled on that day was postponed again on motion of counsel for the accused. The trial was re-set for October 12, 1970, with notice to both parties. On October 12, 1970, when the said criminal cases were called for hearing, no one appeared for the prosecution, except a state witness, Mr. Cesar Alcala of the Provincial Auditor's office who remained silent during the proceedings.

Invoking his client's constitutional right to speedy trial and seizing the opportunity to take advantage of the prosecution's failure to appear on that day, the defense counsel moved for the dismissal of the cases. The respondent court granted the oral motion for dismissal "for reasons of constitutional rights of the accused Demetrio Jardin." Cdpr Two questions are now raised by the People in this appeal: I. Considering the factual setting in the criminal cases at bar, was the respondent Court correct in dismissing the cases and in predicating the dismissal on the right of the defendant to a speedy trial? II. Does the present appeal place the respondent accused in double jeopardy? The respondent court committed a grave abuse of discretion in dismissing the cases and in basing the dismissal on the constitutional right of the accused to speedy trial. The right to a speedy trial means that the accused is free from vexatious, capricious, and oppressive delays, its salutary objective being to assure that an innocent person may be free from anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatever legitimate defense he may interpose. (See Andres v. Cacdac, 113 SCRA 216) From a perusal of the facts, it is readily seen that all the delays in the prosecution of the cases were caused by the accused himself. All the postponements of proceedings were made at his instance and for his behalf. Hence, the

constitutional right to a speedy trial afforded to an accused by our Constitution cannot be invoked. From the start of the preliminary investigation of the cases up to the trial on the merits, the accused always managed to delay the proceedings through postponements and requests for reinvestigation. It would, therefore, be a mockery of the criminal justice system if the accused would be allowed to benefit from his own wrongdoings or tactical maneuvers intended to frustrate the administration of justice. By his own deliberate acts, he is deemed to have waived or abandoned his right to a speedy trial. In the case of Andres v. Cacdac, 113 SCRA 216, we ruled: "In this case, however, there was a waiver or abandonment of the right to a speedy trial in the first case when the herein petitioners sought and obtained several postponements of the trial: first, when they asked for the deferment of the arraignment because the accused Ladislao Tacipit was not present; second, when they asked for the postponement of the trial for March 5, 1968 upon the ground that they have requested the Provincial Fiscal of Cagayan for a reinvestigation of the case; and finally, when they agreed, with the prosecution, to postpone the hearing set for November 28, 1968 to January 4, 1969" . . . . The dismissal of the criminal cases against the accused by the respondent court on the ground that his right to speedy trial had been violated was devoid of factual and legal basis. The order denying the motion for reconsideration is similarly infirm. There being no basis for the questioned orders, they are consequently null and void. prcd

Would a reinstatement of the dismissed cases place the accused in double jeopardy? In order that the protection against double jeopardy may inure to the benefit of an accused, the following requisites must be present in the first prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. (Rule 117, Section 9, Rules of Court; People v. Ledesma, 73 SCRA 77). The last requisite assumes a valid acquittal and a valid acquittal presupposes a valid judgment by a court of competent jurisdiction. Since in the instant cases, the dismissal was void for having been issued without legal basis, it follows that the acquittal brought about by the dismissal is also void. Hence, no jeopardy can attach from such acquittal. The act of respondent judge in dismissing the cases amounted to lack of jurisdiction which would prevent double jeopardy from attaching. In the case of People v. Court of Appeals 101 SCRA 450) we ruled: "Private respondents further argue that a judgment of acquittal ends the case which cannot be appealed nor reopened, otherwise, they would be put twice in jeopardy for the same offense. That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all. (Comia v. Nicolas, 29 SCRA 492 [1969]) By it, no rights are divested. Through it, no rights can be

attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. (Gomez v. Concepcion, 47 Phil. 717, 722 [1925]; Chavez v. Court of Appeals, 24 SCRA 663, 685 [1968]; Paredes v. Moya, 61 SCRA 526, [1974]).". . . We also note that the dismissal of the criminal cases was upon motion and with the express consent of respondent Demetrio Jardin. For double jeopardy to attach, the general rule is that the dismissal of the case must be without the express consent of the accused. (People v. Salico, 84 Phil. 722; People v. Obsania, 23 SCRA 1249; People v. Pilpa, 79 SCRA 81; and People v. Cuevo, 104 SCRA 312). If the accused had been denied his right to speedy trial or if some other basic right had been impaired, the doctrine of waiver of the right to invoke double jeopardy would not apply even if the accused had expressly moved for the termination of proceedings, In the instant case, however, the defendant had deliberately used all the available dilatory tactics he could utilize and abused the principle that the accused must be given every opportunity to disprove the criminal charge. The doctrine of double jeopardy was never intended for this purpose. cdrep Even as we rule that the lower court acted with grave abuse of discretion, we also rebuke the attorneys for both the defense and the prosecution and to a certain extent, the court itself because of the breach of duties to the courts and to the administration of justice apparent in this case.

The duties of an attorney found in Rule 138, Section 20 include: xxx xxx xxx

(d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, . . . xxx xxx xxx

(g) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, from any corrupt motive or interest. xxx xxx xxx

The dilatory tactics of the defense counsel and the failure of both the judge and the fiscal to take effective counter measures to obviate the delaying acts constitute obstruction of justice. As aptly stated: 12.09 Obstructing the administration of justice An attorney as an officer of the court is called upon to assist in the due administration of justice. Like the court itself, he is an instrument to advance its cause. (Surigao Mineral Reservation Board v. Cloribel, G.R. No. 11071, Jan. 9, 1972, 31 SCRA 1; In re Climaco, G.R. Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107) For this reason, any act on the part of a lawyer that obstructs, perverts or impedes the administration of justice constitutes misconduct and justifies disciplinary action against him. (Cantorne v. Ducasin, 57 Phil. 23 [1932]; De los Santos v. Sagalongos, 69 Phil. 406 [1940]).

Acts which amount to obstruction in the administration of justice may take many forms. They include such acts as instructing a complaining witness in a criminal action not to appear at the scheduled hearing so that the case against the client, the accused, would be dismissed. (Cantorne v. Ducasin, supra) asking a client to plead guilty to a crime which the lawyer knows his client did not commit, (Nueno v. Santos, 58 Phil. 557 [1933]) advising a client who is detained for a crime to escape from prison, (Cf. Medina v. Yan, G.R. No. 30978, Sept. 30, 1974) employing dilatory tactics to frustrate satisfaction of clearly valid claims, (Pajares v. Abad Santos, G.R. No. 29543, Nov. 29, 1969, 30 SCRA 748) prosecuting clearly frivolous cases or appeals to drain the resources of the other party and compel him to submit out of exhaustion (Samar Mining Co. v. Arnado, G.R. No. 22304. July 30, 1968) and filing multiple petitions or complaints for a cause that has been previously rejected in the false expectation of getting favorable action. (Gabriel v. Court of Appeals, G.R. No. 43757, July 30, 1976, 72 SCRA 173; Ramos v. Potenciano, G.R. No. 27104, Dec. 20, 1976, 74 SCRA 345; Macias v. Uy Kim, G.R. No. 31174, May 30, 1972, 45 SCRA 251) Acts of this or similar nature are grounds for disciplinary action." (Agpalo, Legal Ethics, U.P. Law Center, 1980 Edition, pp. 405406) The invocation of constitutional rights by the private respondent is without merit. WHEREFORE, the petition is GRANTED and the questioned orders of the respondent court are hereby SET ASIDE. Criminal Cases Nos. 0043-M, 0044-M, 0045-M, 0046-M, 0047-M, and 0048-M are reinstated and the proper regional trial

court is ordered to proceed with all deliberate speed in these cases. SO ORDERED. Melencio-Herrera and Vasquez, JJ ., concur. Teehankee, Actg. C .J ., took no part. Plana, J ., in the result. Relova, J ., for the reason that the dismissal was with the express consent of the accused, he was not in jeopardy. [G.R. No. L-23956. July 21, 1967.] ELPIDIO JAVELLANA, plaintiff-appellant, vs. NICOLAS LUTERO, Judge of the Municipal Court of Iloilo City and the ROMAN CATHOLIC ARCHBISHOP OF JARO, defendants-appellees. Hautea & Hinojales for plaintiff and appellant. Luisito C . Hofilea for defendants and appellees. SYLLABUS 1. ATTORNEYS-AT-LAW; DUTY OF COUNSEL IN A JUDICIAL CONTROVERSY. A counsel for any party in a judicial controversy, by mandate of the canons of legal ethics, and with due regard for the elementary standards of fair play, is duty bond to prepare for trial with diligence and deliberate speed. This norm of conduct is no less applicable in a detainer case, such as the one at bar, even if the issues are essentially simple and uncomplicated. 2. ID.; ID.; CASE AT BAR. The case was set for trial six times. Thrice it was postponed at the behest of the said counsel. The last

postponement was granted on July 24, 1963 with the unequivocal admonition by the judge that no further postponement would be countenanced. The case was reset for hearing on August 27, 1963, which means that appellant's counsel had more than a month's time to so adjust his schedule of activities as to obviate a conflict between his business transactions and his calendar of hearings. Came August 27, and neither he nor the appellant appeared at the trial. His absence on the latter date was not occasioned by illness or some other supervening occurrence which unavoidably and justifiably prevented him from appearing in court. Held: In our new, it was the bounden duty of the said counsel, under the circumstances, to give preferential attention to the case. As things were, he regarded the municipal court as a mere marionette that must ever await his pleasure. This attitude on his part is censurable as it reveals more than just a modicum of disrespect for the judiciary and the established machinery of justice. 3. REMEDIAL LAW; APPEAL; EFFECT OF APPEAL FROM MUNICIPAL COURT TO COURT OF FIRST INSTANCE. An appeal from the decision of a municipal court to the Court of First Instance has the effect of vacating the decision (Sec. 9, Rule 40, new Rules of Court; Sec. 9, Rule 40, of the old Rules), and the action is to be tried de novo without regard to the proof presented in the municipal court or the conclusions reached thereon (Colegio de San Jose vs. Sison, 56 Phil., 344; Lizo vs. Carandang, 73 Phil., 649; Crisostomo vs. Director of Prisons, 41 Phil., 368). 4. ID.; ID.; COSTS; TREBLE, COSTS WHERE APPEAL IS FRIVOLOUS. As the appeal is

patently frivolous and dilatory, this Court, under the authority of Section 3 of Rule 142 of the Rules of Court, hereby assesses treble costs against appellant, to be paid by his counsel. DECISION CASTRO, J p: This is an appeal from a decision of the Court of First Instance of Iloilo (CC 6425) dismissing a petition for relief directed against the judgment rendered by the municipal court of Iloilo City in its civil case 7220. On March 29, 1963 the Roman Catholic Archbishop of Jaro, Iloilo filed a detainer complaint against Elpidio Javellana with the municipal court of Iloilo City, presided by Judge Nicolas Lutero. The hearing, originally set for April 30, 1963, was postponed to May 24 for failure of the defendant to receive summons, and then postponed again to June 27 for the same reason. It was thereafter postponed to July 16, then to July 24, and finally to August 27, all at the behest of the defendant's Atty. Jose Hautea, on the grounds that "he has not finished his business transactions in Manila" and that "he hurt his right foot toe". The last postponement was granted by the municipal court with the warning that no further postponement would be entertained. When the case was called for trial on August 27, 1963, neither the defendant nor his counsel Atty. Hautea appeared although one Atty. Romy Pea who was present in court verbally moved for the postponement of the trial on the ground that Atty. Hautea was in Manila attending to a business transaction. The plaintiff's counsel objected to the motion on the ground that the

defendant and his counsel were well aware of the court's previous admonition that no further postponement of the case would be granted, and then manifested that the witnesses and the evidence for the plaintiff were ready for presentation on that date. The verbal motion for postponement was denied and the plaintiff was directed to adduce his evidence. During the presentation of the plaintiffs evidence, the municipal court received a telegram from Atty. Hautea requesting postponement of the hearing. The trial proceeded nevertheless, and, on the basis of the plaintiff's evidence, the court on the same date rendered judgment for the plaintiff and against the defendant. The latter's counsel received a copy of the decision on September 9, 1963. On the following September 11, he filed a motion to set aside judgment and for new trial. This motion was denied on September 26; a copy of the order of denial was received by him on the same date. On November 16, 1963, or about 50 days later, the defendant thru his same counsel filed a petition for relief (from the judgment of the municipal court) with the Court of First Instance of Iloilo, praying that the decision in question be set aside, that the retainer case be set for trial on the merits, and, pending determination of the petition, that an injunction issue restraining the enforcement of the decision. Counsel for the petitioner averred that his absence on the date of the trial was excusable as he attended to a very urgent business transaction in Manila; that before his departure for the latter city, he verbally informed the respondent judge that his return to Iloilo might be delayed and that he might not arrive on time for the trial of the case as set; that he called at both the law office and the residence of the counsel for the private

respondent to inform him of the desired postponement and the reason therefor, but the latter was in Bacolod at the time; that he exercised utmost diligence and precaution in the sense that while in Manila he sent a telegram to the respondent judge, asking for postponement; and that notwithstanding all the foregoing, the municipal court nevertheless proceeded with the trial in his absence and that of his client, allowed the private respondent to present his evidence ex parte, and rendered a decision against the petitioner, thus depriving the latter of his day in court. Counsel for the petitioner further asserted that his client has a good and substantial defense, which is, that the complainant had given his client an option to buy the premises subject-matter of the complaint below, and that a reopening of the case would cause the private respondent no real injury. This petition was given due course, the respondents were acquired to file their answers, and a cease-and-desist order was issued as prayed for. On February 22, 1964, after due hearing, the Court of First Instance rendered judgment dismissing the petition. Hence the present recourse. From the perspective of the environmental circumstances obtaining in this case, the present appeal is palpably devoid of merit. A counsel for any party in a judicial controversy, by mandate of the canons of legal ethics, and with due regard for the elementary standards of fair play, is duty bound to prepare for trial with diligence and deliberate speed. This norm of conduct is no less applicable in a detainer

case, such as the one at bar, even if the issues are essentially simple and uncomplicated. It is obvious that the counsel for the petitionerappellant has been remiss in this respect. The case was set for trial six times. Thrice it was postponed at the behest of the said counsel. The last postponement was granted on July 24, 1963 with the unequivocal admonition by the judge that no further postponement would be countenanced. The case was reset for hearing on August 27, 1963, which means that the appellant's counsel had more than a month's time to so adjust his schedule of activities as to obviate a conflict between his business transactions and his calendar of hearings. Came August 27, and neither he nor the appellant appeared at the trial. His absence on the latter date was not occasioned by illness or some other supervening occurrence which unavoidably and justifiably prevented him from appearing in court. In our view, it was the bounden duty of the said counsel, under the circumstances, to give preferential attention to the case. As things were, he regarded the municipal court as a mere marionette that must ever await his pleasure. This attitude on his part is censurable as it reveals more than just a modicum of disrespect for the judiciary and the established machinery of justice. Nor is his censurable conduct mitigated by the appearance in court on August 27 of another attorney who verbally moved for postponement nor by his telegram received by the municipal judge on the same date asking for continuance. These circumstances, upon the contrary,

emphasize his presumptuousness vis-a-vis the municipal judge. It is thus crystal-clear from the foregoing disquisition that the petitioner-appellant was not deprived of his day in court, and that the respondent municipal judge did not err in proceeding with the trial, allowing the private respondent to present his evidence ex parte, and thereafter rendering decision for the plaintiff-appellee. It follows that the petitioner was not entitled to the remedy of a petition for relief. Moreover, after the denial of his motion to set aside judgment and for new trial, the appellant had ample time to appeal; instead he allowed the judgment to become final and executory. His argument that an appeal would have been futile as there was no evidence upon which such appeal could be based, merits scant consideration. An appeal from the decision of a municipal court to the Court of First Instance has the effect of vacating the decision (sec. 9, Rule 40, new Rules of Court; sec. 9, Rule 40, of the old Rules), and the action is to be tried de novo without regard to the proof presented in the municipal court or the conclusions reached thereon (Colegio de San Jose vs. Sison, 56 Phil. 344, 351; Lizo vs. Carandang 73 Phil. 649; Crisostomo vs. Director of Prisons, 41 Phil. 368). To grant the appellant's petition for relief would amount to reviving his right to appeal which he had irretrievably lost through the gross inaction of his counsel (see Espinosa vs. Yatco, etc., et al., L-16435, Jan. 31, 1963, and the cases therein cited). This in law cannot be done. Accordingly, the decision appealed from is affirmed. As this appeal is patently frivolous and

dilatory, this Court, under the authority of section 3 of Rule 142 of the Rules of Court, hereby assesses treble costs against the petitioner-appellant Elpidio Javellana, said costs to be paid by his counsel, Atty. Jose Hautea. Reyes, J .B.L., Makalintal, Bengzon, J .P., Zaldivar, Sanchez, Angeles and Fernando, JJ ., concur. Concepcion, C .J . and Dizon, J ., did not take part. [G.R. No. L-35867. June 28, 1973.] FRANCISCO A. ACHACOSO, in his own behalf and in behalf of Capital Insurance & Surety Co., Inc., petitioners, vs. THE HON. COURT OF APPEALS, COTRAM, S.A., CAPITAL LIFE ASSURANCE CORP., and JOAQUIN G. GARRIDO, respondents. Rodrigo M . Nera for petitioner. Norberto J . Quisumbing & R. P. Mosqueda for private respondents. RESOLUTION TEEHANKEE, J p: The Court censures the practice of counsels who secure repeated extensions of time to file their pleadings and thereafter simply let the period lapse without submitting the pleading or even an explanation or manifestation of their failure to do so. The Court herein reprimands petitioner's counsel for such misconduct with the warning that a repetition thereof will be dealt with more severely.

Upon the filing on December 15, 1972 of the petition at bar for review of the Court of Appeals' decision dismissing petitioner's petition for mandamus filed with said court to compel the Manila court of first instance to allow petitioner's proposed appeal from its adverse judgment dismissing plaintiff's complaint, the Court per its resolution of December 2, 1972 required respondents to comment thereon. Respondents filed on February 8, 1973 an extensive eighteen page comment, and petitioner's counsel, Rodrigo M. Nera, filed on February 12, 1973 a motion for leave to file reply within 15 days from notice, alleging that there was need for such reply "in order that this Honorable Court may be fully and completely informed of the nature of the controversy which gave rise to the instant petition." The Court granted such leave per its resolution of February 23, 1973, and notice of such leave was served on counsel on February 27, 1973. On the last day for filing of the reply, viz, March 14, 1973, counsel asked for an additional 15 days averring that "due to the pressure of urgent professional work and daily trial engagements of the undersigned counsel during the original period granted, he has not had sufficient material time to complete the preparation of petitioner's reply." The Court granted the requested extension per its resolution of March 20, 1973. On the last day of the extended period for filing of the reply, viz, March 29, 1973, counsel again asked for still another 15-day extension, stating that "due to the pressure of urgent professional work and daily trial engagements of the

undersigned counsel, he has not had sufficient material time to complete the preparation of petitioner's reply. The undersigned counsel humbly apologizes that in view of his crowded schedule, he has been constrained to ask for this extension, but respectfully assures the Honorable Court that this will be the last one requested." As per its resolution of April 6, 1973, the Court granted counsel's motion for such third and last extension. The period for the filing of petitioner's reply lapsed on April 13, 1973 without counsel having filed any reply or manifestation explaining his failure to do so. Accordingly, the Court in its resolution of May 24, 1973 denying the petition for review for lack of merit, further required petitioner's counsel to show cause why disciplinary action should not be taken against him for failure to file the reply after having obtained such leave and three extensions of time within which to do so. Counsel filed in due course his verified Explanation dated June 7, 1973, stating that he was retained in the case "on a piece-work basis on the verbal understanding that all expenses for the preparation of pleadings and the cost of services of a stenographer-typist shall be furnished in advance by petitioner upon being notified thereof;" that when he asked for a third extension on March 29, 1973, he so informed petitioner and requested him to "remit the expenses for the preparation of the reply as per agreement" and that he tried to contact petitioner before the expiration of the extended period but failed to do so as petitioner "was then most of the time out of his office."

Counsel relates that it was only on May 30, 1973 when he received notice of the Court's resolution of May 24, 1973 denying the petition and requiring his explanation long after the expiration on April 13, 1973 of the extended period for the filing of the reply that he wrote petitioner and in turn asked petitioner to explain the latter's failure to comply with his request for a remittance of P500.00 to cover the necessary expenses, and that petitioner had replied that counsel's letter had been misplaced by a clerk, and hence, petitioner had "failed to act on the same." Counsel pleads that "this counsel has not the least intention of delaying the administration of justice and much less trifle with the resolutions and orders of this Honorable Court. The inability of this counsel to submit the reply within the third extension granted by this Honorable Court was due to supervening circumstances which could not be attributed to this counsel;" and that "if this poor and humble practitioner has been impelled to inaction, it surely was not intentional on his part, the truth of the matter being that this counsel was just helpless in the face of petitioner's failure to comply with his commitments aforesaid;" and that "this counsel deeply regrets this incident and hereby apologizes to this Honorable Court for all his shortcomings relative to this case, which after all were due to causes and circumstances not of his own making and far beyond his control." Counsel's explanation is far from satisfactory. If indeed he was not in a financial position to advance the necessary expenses for preparing and submitting the reply, then he could have filed timely the necessary manifestation that he was foregoing the filing of such reply on

petitioner's behalf. His inaction unduly delayed the Court's prompt disposition of the case after the filing by respondents on February 8, 1973 of their comments on the petition showing its lack of merit. The Court would have then so disposed of the petition had it not been for petitioner's plea to be given time and opportunity to file a reply to the comments in order to fully apprise the Court of the nature of the controversy, which plea the Court granted in reliance on his good faith. Yet after having obtained three extensions of time for the filing of the reply, counsel simply failed to file any reply nor to give the Court the courtesy of any explanation or manifestation for his failure to do so. Counsel readily perceived in his explanation that his conduct comes close to delaying the administration of justice and trifling with the Court's processes. It does not reflect well on counsel's conduct as an officer of the Court that after assuring the Court that the third extension requested by him "in view of his crowded schedule" and "of urgent professional work and daily trial engagements" would be the last within which period he would at last file the awaited reply, for him thereafter to let the period simply lapse without any explanation whatsoever, and worse, to wait to be found out, and have the Court require him to explain. Considering, however, that counsel's record shows no previous infractions on his part since his admission to the Philippine Bar in 1953, the Court is disposed to be lenient in this instance. ACCORDINGLY, the Court hereby administers a reprimand on Atty. Rodrigo M. Nera, with the warning that a repetition of the same or similar

acts shall be dealt with more severely. Let a copy of this resolution be filed in his personal record. Makalintal, Actg. C.J., Zaldivar, Castro, Fernando, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Copyright 1994-1999 CD Techno l o g i e s A s i a, I n c.

G.R. No. L-31684 June 28, 1973 EVANGELISTA & CO., vs. ESTRELLA ABAD SANTOS SECOND DIVISION [G.R. No. L-31684. June 28, 1973.] EVANGELISTA & CO., DOMINGO C. EVANGELISTA, JR., CONCHITA B. NAVARRO and LEONARDA ATIENZA ABAD SANTOS, petitioners, vs. ESTRELLA ABAD SANTOS, respondent. Leonardo Abola for petitioners. Baizas, Alberto & Associates for respondent. DECISION MAKALINTAL, Actg., C .J p: On October 9, 1954 a co-partnership was formed under the name of "Evangelista & Co." On June 7, 1955 the Articles of Co-partnership were amended so as to include herein respondent, Estrella Abad Santos, as industrial partner, with herein petitioners Domingo C.

Evangelista, Jr., Leonarda Atienza Abad Santos and Conchita P. Navarro, the original capitalist partners, remaining in that capacity, with a contribution of P17,500 each. The amended Articles provided, inter alia, that "the contribution of Estrella Abad Santos consists of her industry being an industrial partner;" and that the profits and losses "shall be divided and distributed among the partners .. in the proportion of 70% for the first three partners, Domingo C. Evangelista, Jr., Conchita P. Navarro and Leonarda Atienza Abad Santos to be divided among them equally; and 30% for the fourth partner, Estrella Abad Santos." On December 17, 1963 herein respondent filed suit against the three other partners in the Court of First Instance of Manila, alleging that the partnership, which was also made a partydefendant, had been paying dividends to the partners except to her; and that notwithstanding her demands the defendants had refused and continued to refuse to let her examine the partnership books or to give her information regarding the partnership affairs or to pay her any share in the dividends declared by the partnership. She therefore prayed that the defendants be ordered to render an accounting to her of the partnership business and to pay her corresponding share in the partnership profits after such accounting, plus attorney's fees and costs. The defendants, in their answer, denied ever having declared dividends or distributed profits of the partnership; denied likewise that the plaintiff ever demanded that she be allowed to examine the partnership books; and by way of affirmative defense alleged that the amended Articles of Co-partnership did not express the

true agreement of the parties, which was that the plaintiff was not an industrial partner; that she did not in fact contribute industry to the partnership; and that her share of 30% was to be based on the profits which might be realized by the partnership only until full payment of the loan which it had obtained in December, 1955 from the Rehabilitation Finance Corporation in the sum of P30,000, for which the plaintiff had signed a promissory note as co-maker and mortgaged her property as security. The parties are in agreement that the main issue in this case is "whether the plaintiffappellee (respondent here) is an industrial partner as claimed by her or merely a profit sharer entitled to 30% of the net profits that may be realized by the partnership from June 7, 1955 until the mortgage loan from the Rehabilitation Finance Corporation shall be fully paid, as claimed by appellants (herein petitioners)." On that issue the Court of First Instance found for the plaintiff and rendered judgment "declaring her an industrial partner of Evangelista & Co., ordering the defendants to render an accounting of the business operations of the (said) partnership . . . from June 7, 1955; to pay the plaintiff such amounts as may be due as her share in the partnership profits and/or dividends after such an accounting has been properly made; to pay plaintiff attorney's fees in the sum of P2,000.00 and the costs of this suit." The defendants appealed to the Court of Appeals, which thereafter affirmed the judgment of the court a quo. In the petition before Us the petitioners have assigned the following errors:

"I. The Court of Appeals erred in finding that the respondent is an industrial partner of Evangelista & Co., notwithstanding the admitted fact that since 1954 and until after the promulgation of the decision of the appellate court the said respondent was one of the judges of the City Court of Manila, and despite its finding that respondent has been paid for services allegedly contributed by her to the partnership. In this connection the Court of Appeals erred: (A) In finding that the 'amended Articles of Co-partnership,' Exhibit 'A' is conclusive evidence that respondent was in fact made an industrial partner of Evangelista & Co. (B) In not finding that a portion of respondent's testimony quoted in the decision proves that said respondent did not hind herself to contribute her industry, and she could not, and in fact did not, because she was one of the judges of the City Court of Manila since 1954. (C) In finding that respondent did in fact contribute her industry, despite the appellate court's own finding that she has been paid for the services allegedly rendered by her, as well as for the loans of money made by her to the partnership. "II. The lower court erred in not finding that in any event the respondent was lawfully excluded from, and deprived of, her alleged share, interest and participation, as an alleged industrial partner, in the partnership Evangelista & Co., and in its profits or net income. "III. The Court of Appeals erred in affirming in toto the decision of the trial court whereby

respondent was declared an industrial partner of petitioner partnership, and petitioners were ordered to render an accounting of the business operation of the partnership from June 7, 1955, and to pay the respondent her alleged share in the net profits of the partnership plus the sum of P2,000.00 as attorney's fees and the costs of the suit, instead of dismissing respondent's complaint, with costs, against the respondent." It is quite obvious that the questions raised in the first assigned error refer to the facts as found by the Court of Appeals. The evidence presented by the parties as the trial in support of their respective positions on the issue of whether or not the respondent was an industrial partner was thoroughly analyzed by the Court of Appeals on its decision, to the extent of reproducing verbatim therein the lengthy testimony of the witnesses. It is not the function of the Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being limited to reviewing errors of law that might have been committed by the lower court. It should be observed, in this regard, that the Court of Appeals did not hold that the Articles of Co-partnership, identified in the record as Exhibit "A", was conclusive evidence that the respondent was an industrial partner of the said company, but considered it together with other factors, consisting of both testimonial and documentary evidences, in arriving at the factual conclusion expressed in the decision. The findings of the Court of Appeals on the various points raised in the first assignment of error are hereunder reproduced if only to demonstrate that the same were made after a

thorough analysis of the evidence, and hence are beyond this Court's power of review. "The aforequoted findings of the lower Court are assailed under Appellants' first assigned error, wherein it is pointed out that 'Appellee's documentary evidence does not conclusively prove that appellee was in fact admitted by appellants as industrial partner of Evangelista & Co.' and that 'The grounds relied upon by the lower Court are untenable' (Pages 21 and 26, Appellant's Brief). "The first point refers to Exhibits A, B, C, K, K-1, J, N, and S, appellants' complaint being that 'In finding that the appellee is an industrial partner of appellant Evangelista & Co., herein referred to as the partnership the lower court relied mainly on the appellee's documentary evidence, entirely disregarding facts and circumstances established by appellants' evidence which contradict the said finding' (Page 21, Appellants' Brief). The lower court could not have done otherwise but rely on the exhibits just mentioned, first, because appellants have admitted their genuineness and due execution hence they were admitted without objection by the lower court when appellee rested her case and, secondly, the said exhibits indubitably show that appellee is an industrial partner of appellant company. Appellants are virtually estopped from attempting to detract from the probative force of the said exhibits because they all bear the imprint of their knowledge and consent, and there is no credible showing that they ever protested against or opposed their contents prior to the filing of their answer to appellee's complaint. As a matter of fact, all that appellant Evangelista, Jr., would have us believe as

against the cumulative force of appellee's aforesaid documentary evidence is that appellee's Exhibit 'A', as confirmed and corroborated by the other exhibits already mentioned, does not express the true intent and agreement of the parties thereto, the real understanding between them being that appellee would be merely a profit sharer entitled to 30% of the net profits that may be realized between the partners from June 7, 1955 until the mortgage loan of P30,000.00 to be obtained from the RFC shall have been fully paid. This version,. however, is discredited not only by the aforesaid documentary evidence brought forward by appellee, but also by the fact that from June 7, 1955 up to the filing of their answer to the complaint on February 8, 1964 or a period of over eight (8) years appellants did nothing to correct the alleged false agreement of the parties contained in Exhibit 'A'. It is thus reasonable to suppose that, had appellee not filed the present action, appellants would not have advanced this obvious afterthought that Exhibit 'A' does not express the true intent and agreement of the parties thereto. "At pages 32-33 of appellants' brief, they also make much of the argument that 'there is an overriding fact which proves that the parties to the Amended Articles of Partnership, Exhibit 'A', did not contemplate to make the appellee Estrella Abad Santos, an industrial partner of Evangelista & Co. It is an admitted fact that since before the execution of the amended articles of partnership, Exhibit 'A', the appellee Estrella Abad Santos has been, and up to the present time still is, one of the judges of the City Court of Manila, devoting all her time to the performance of the duties of her public

office. This fact proves beyond peradventure that it was never contemplated between the parties, for she could not lawfully contribute her full time and industry which is the obligation of an industrial partner pursuant to Art. 1789 of the Civil Code." The Court of Appeals then proceeded to consider appellee's testimony on this point, quoting it in the decision, and then concluded as follows: "One cannot read appellee's testimony just quoted without gaining the very definite impression that, even as she was and still is a Judge of the City Court of Manila, she has rendered services for appellants without which they would not have had the wherewithal to operate the business for which appellant company was organized. Article 1767 of the New Civil Code which provides that 'By contract of partnership two or more persons bind themselves, to contribute money, property, or industry to a common fund, with the intention of dividing the profits among themselves,' does not specify the kind of industry that a partner may thus contribute, hence the said services may legitimately be considered as appellee's contribution to the common fund. Another article of the same Code relied upon by appellants reads: 'ART. 1789. An industrial partner cannot engage in business for himself, unless the partnership expressly permits him to do so; and if he should do so, the capitalist partners may either exclude him from the firm or avail themselves of the benefits which he may have obtained in violation of this provision, with a right to damages in either case.'

It is not disputed that the prohibition against an industrial partner engaging in business for himself seeks to prevent any conflict of interest between the industrial partner and the partnership, and to insure faithful compliance by said partner with his prestation. There is no pretense, however, even on the part of appellants that appellee is engaged in any business antagonistic to that of appellant company, since being a Judge of one of the branches of the City Court of Manila can hardly be characterized as a business. That appellee has faithfully complied with her prestation with respect to appellants is clearly shown by the fact that it was only after the filing of the complaint in this case and the answer thereto that appellants exercised their right of exclusion under the codal article just mentioned by alleging in their Supplemental Answer dated July 29, 1964 or after around nine (9) years from June 7, 1955 'That subsequent to the filing of defendants' answer to the complaint, the defendants reached an agreement whereby the herein plaintiff has been excluded from, and deprived of, her alleged share, interest or participation, as an alleged industrial partner, in the defendant partnership and/or in its net profits or income, on the ground that plaintiff has never contributed her industry to the partnership, and instead she has been and still is a judge of the City Court (formerly Municipal Court) of the City of Manila, devoting her time to the performance of her duties as such judge and enjoying the privileges and emoluments appertaining to the said office, aside from teaching in law school in Manila, without the express consent of the herein defendants' (Record On Appeal, pp. 24-25). Having always known appellee as a City Judge even before she joined appellant company on June 7, 1955 as an

industrial partner, why did it take appellants so many years before excluding her from said company as per aforequoted allegations? And 'how can they reconcile such exclusion with their main theory that appellee has never been such a partner because 'The real agreement evidenced by Exhibit 'A' was to grant the appellee a share of 30% of the net profits which the appellant partnership may realize from June 7, 1955, until the mortgage loan of P30,000.00 obtained from the Rehabilitation Finance Corporation shall have been fully paid.' (Appellants Brief, p. 38). "What has gone before persuades us to hold with the lower Court that appellee is an industrial partner of appellant company, with the right to demand for a formal accounting and to receive her share in the net profit that may result from such an accounting, to which right appellants take exception under their second assigned error. Our said holding is based on the following article of the New Civil Code: 'ART. 1299. Any partner shall have the right to a formal account as to partnership affairs: (1) If he is wrongfully excluded from the partnership business or possession of its property by his co-partners; (2) If the right exists under the terms of any agreement; (3) As provided by article 1807;

(4) Whenever other circumstances render it just and reasonable." We find no reason in this case to depart from the rule which limits this Court's appellate jurisdiction to reviewing only errors of law,

accepting as conclusive the factual findings of the lower court upon its own assessment of the evidence. The judgment appealed from is affirmed, with costs. Zaldivar, Castro, Fernando, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur. [G.R. No. L-22536. August 31, 1967.] DOMINGO V. AUSTRIA, petitioner, vs. HON. ANTONIO C. MASAQUEL, in his capacity as the Presiding Judge of Branch II of the Court of First Instance of Pangasinan, respondent. Primicias, Del Castillo & Macaraeg for petitioner. Antonio C . Masaquel for respondent. DECISION ZALDIVAR, J p: This is a petition for a writ of certiorari to annul or set aside the order respondent Judge Antonio Masaquel, dated February 10, 1964, in Civil Case No. 13258 of the Court of First Instance of Pangasinan, declaring petitioner Domingo V. Austria guilty of contempt of court and imposing upon him a fine of P50.00. The facts that gave rise to the incident in question are not disputed. Petitioner was one of the plaintiffs in the above-mentioned Civil Case No. 13258, 1 against Pedro Bravo for the recovery of three parcels of land one parcel being located at Bayambang and two parcels in San Carlos, in the province of Pangasinan. On April 19, 1963, after trial, respondent Judge

rendered a decision declaring the plaintiffs the owners of the three parcels of land in question and ordering the defendant to vacate the lands and pay the plaintiffs damages only with respect to the land located at Bayambang. The plaintiffs filed a motion for the immediate execution of the judgment which motion was granted by respondent Judge on May 31, 1963 and, upon the plaintiffs' having posted a surety bond in the sum of P2,000.00, the sheriff placed them in possession of the lands located at San Carlos. On May 23, 1963, Atty. Mariano C. Sicat, a former assistant or associate of respondent Judge when the latter was still in the practice of law before his appointment to the bench, entered his appearance as the new counsel for defendant Pedro Bravo, vice Atty. Antonio Resngit. On June 14, 1963, the defendant, through Atty. Sicat, filed a supersedeas bond to stay the execution of the judgment, and on June 20, 1963 respondent Judge granted the stay of execution, over the objection of plaintiffs, and ordered the sheriff to restore the possession of the lands in San Carlos to the defendant. The petitioner likewise had asked for the appointment of a receiver over the parcel of land located at Bayambang, which prayer was granted by respondent Judge on July 8, 1963; but upon the filing of a bond by the defendant for the non-appointment of a receiver, the order of receivership was set aside. On August 24, 1963, pending the approval of the defendant's amended record on appeal, Atty. Sicat filed a motion for new trial and to set aside the judgment and, over the vigorous objection of plaintiffs, the respondent Judge granted the said motion on November 7, 1963.

The hearing on the retrial was finally set for February 10, 1964. Before the opening of the court's session in the morning of February 10, 1964, Atty. Daniel Macaraeg, counsel for petitioner and his coplaintiffs, saw respondent Judge in his chamber and verbally transmitted to him the request of petitioner that he (the Judge) inhibit himself from further hearing the case upon the ground that the new counsel for the defendant, Atty. Mariano C. Sicat, was his former associate. The respondent Judge, however, rejected the request because, according to him, the reason for the request of his inhibition is not one of the grounds for disqualification of a judge provided for in the Rules of Court. Thereafter, when the case was called for hearing in open court, the following transpired, as shown by the transcript of the stenographic notes taken during said hearing: 2 "APPEARANCE: ATTY. DANIEL C. MACARAEG appeared in behalf of plaintiffs. (After the case was called) COURT: Your client is here? ATTY. MACARAEG: Yes, Your Honor COURT: Where is he? ATTY. MACARAEG:

He is here, Your Honor. COURT: What is your name? PLAINTIFF: Domingo Austria, sir. COURT: You are one of the plaintiffs in this case? DOMINGO AUSTRIA: Yes, sir. COURT: Atty. Macaraeg approached me in chambers requesting me to disqualify myself in hearing this case. Did you authorize Atty. Macaraeg to approach me verbally to disqualify myself from hearing, this case because the lawyer of the other party was my former assistant? DOMINGO AUSTRIA: Yes, sir. COURT: Is that your reason why you requested Atty. Macaraeg to approach me, requesting me to disqualify myself simply because the lawyer of the other party was my assistant? DOMINGO AUSTRIA: Yes, sir. COURT:

All right. Do you doubt the integrity of the presiding Judge to decide this case fairly and impartially because the lawyer of the other party was my former assistant? Do you doubt? Just answer the question? DOMINGO AUSTRIA: Yes, sir. COURT: The Court hereby finds you guilty of contempt of Court and you are hereby ordered to pay a fine of P50.00. ATTY. MACARAEG: With due indulgence of this Honorable Court - I have just learned, after I have conferred with you in chambers, another ground of the plaintiffs for their requesting me to ask for the disqualification of Your Honor in this case, and this ground consists of the rampant rumor coming from the defendant Pedro Bravo himself that he is boasting in San Carlos that because he has a new lawyer, that surely he is going to win this case. COURT: Why did you not wait until the case is finally decided and find out if that is true or not? ATTY. MACARAEG: And maybe, that is why the plaintiffs requested me to approach Your Honor because of that rampant rumor that Pedro Bravo is spreading. COURT:

You mean to say because of that rumor, you are going to doubt my integrity? ATTY. MACARAEG: As for me, I entertain no doubt, Your Honor. COURT: Your client expressed openly in Court his doubts on the integrity of the Court simply based on rumors and that is a ground for contempt of court, if only to maintain the faith of the people in the courts. ATTY. MACARAEG: Taking into consideration that these plaintiffs are laymen and we cannot expect from them the thinking of a lawyer, I am most respectfully praying that the Order of this Court be reconsidered. COURT: Denied. Your client should pay a fine of P50.00. We will hear this case this afternoon. ATTY. MACARAEG: Yes, Your Honor." The respondent Judge forthwith dictated the following order: 3 "Before this Court opened its sessions this morning, Atty. Daniel C. Macaraeg, counsel for the plaintiffs, approached the presiding Judge of this Court in his chambers and manifested the desire of his clients for the Judge to disqualify himself from trying the aboveentitled case for the reason that counsel for the defendant, Atty. Marciano C. Sicat was formerly

an associate of the Judge of this Court while he was still engaged in the practice of law. To this manifestation of Atty. Macaraeg, the Presiding Judge informed the latter that such fact alone does not in itself constitute a legal ground to disqualify the Presiding Judge of this Court, from trying this case. "When the above-entitled case was called for hearing, the Presiding Judge called on one of the plaintiffs who was present, namely, Domingo Austria, and inquired from the latter if it was true that he asked his lawyer Atty. Macaraeg to approach the Judge in chambers and to ask him to disqualify himself from trying this case because defendant's lawyer Atty. Sicat was formerly associated with the said Judge. To this query Domingo Austria answered in the affirmative. When he was also asked as to whether the said Domingo Austria has lost faith in the sense of fairness and justice of the Presiding Judge of this Court simply because of his former association with the defendant's lawyer, said Domingo Austria likewise answered in the affirmative. "The Court considers the actuation of the plaintiff Domingo Austria, in the premises, as offensive, insulting and a reflection on the integrity and honesty of the Presiding Judge of this Court and shows his lack of respect to the Court. The said Domingo Austria is not justified and has no reason to entertain doubts in the fairness and integrity of the Presiding Judge of this Court, simply because of the latter's former association with defendant's counsel. For this reason and in order to maintain the people's faith and respect in their courts the last bulwark in our democratic institutions the Presiding Judge declared said plaintiff Domingo

Austria in direct contempt of court and he was ordered to pay a fine of P50.00. "The Court found from the manifestation of plaintiffs' counsel Atty. Macaraeg that the basis of the statement, of Domingo Austria that he has lost his faith in the Presiding Judge of this Court is the rumors being circulated by the defendant Pedro Bravo that he will surely win in the present case because of his new lawyer, Atty. Marciano C. Sicat. The Court believes that rumors of the sort do not serve as a sufficient basis or justification for the plaintiff Domingo Austria to insinuate bias and partiality, on the part of the Court and to express openly his loss of faith and confidence in the integrity, fairness and capability of the Presiding Judge of this Court to perform his sworn duty of upholding and administering justice, without fear or favor, and by reason of which this Court denied the verbal motion to reconsider filed by counsel for the plaintiff Domingo Austria, finding him guilty of contempt of court and ordering him to pay a fine of P50.00. "SO ORDERED "Given in open court this 10th day of February, 1964, at Lingayen, Pangasinan." Petitioner Domingo Austria, accordingly, paid the fine of P50.00 under protest. Having been punished summarily for direct contempt of court, and the remedy of appeal not being available to him, petitioner filed the instant petition for certiorari before this Court. It is the position of the petitioner that under the facts and circumstances attendant to the hearing of Civil Case No. 13250 on February 10, 1963, he had not committed an act of contempt

against the court and the respondent Judge had acted in excess of his jurisdiction and with grave abuse of discretion when he declared the petitioner in direct contempt of court and imposed on him the fine of P50.00 as a penalty. After a careful study of the record, We find merit in this petition. The respondent Judge declared the petitioner in direct contempt of court. Our task, therefore, is to determine whether or not the petitioner was guilty of misbehavior in the presence of or so near a court or judge as to obstruct or interrupt the proceedings before the same, or had committed an act of disrespect toward the court or judge. 4 The respondent Judge considered the actuation of the petitioner, in the premises, as offensive, insulting, and a reflection on his integrity and honesty and a showing of lack of respect to the court. The respondent Judge considered that the petitioner was not justified and had no reason to entertain doubts in his fairness and integrity simply because the defendant's counsel was his former associate. We do not agree with the respondent Judge. It is our considered view that when the petitioner requested respondent Judge to inhibit himself from further trying the case upon the ground that the counsel for the opposite party was the former associate of the respondent Judge, petitioner did so because he was impelled by a justifiable apprehension which can occur in the mind of a litigant who sees what seems to be an advantage on the part of his adversary; and that the petitioner made his request in a manner that was not disrespectful, much less insulting

or offensive to the respondent Judge or to the court. We are in accord with the statement of respondent Judge in his memorandum that the circumstance invoked by petitioner in asking him to inhibit himself from further trying the case that Atty. Sicat was his former associate in his practice of law is not one of the grounds enumerated in the first paragraph of Section 1, Rule 137 of the new Rules of Court for disqualifying a judge. While it is true that respondent Judge may not be compelled to disqualify himself, the fact that Atty. Sicat, admittedly his former associate, was counsel for a party in the case being tried by him, may constitute a just or valid reason for him to voluntarily inhibit himself from hearing the case on a re-trial, if he so decides, pursuant to the provision of the second paragraph of Section 1 of the said Rule 137. 5 The apprehension of petitioner regarding the probable bias of respondent Judge does not appear to be groundless or entirely devoid of reason. The respondent Judge had decided the case in favor of petitioner and his co-plaintiffs, and that upon plaintiffs' timely motion and filing of bond they were already placed in possession of the lands in question pending appeal. It was when Atty. Sicat took over as new counsel for defendant that the latter was given back the properties, upon a motion to stay the execution of the judgment which was filed by said counsel and was granted by respondent Judge over the opposition of petitioner's counsel. Again, when the same counsel for defendant filed a motion for a new trial, said motion was granted by respondent Judge in spite of the vigorous objection of counsel for

the petitioner and his co-plaintiffs. And then the petitioner became aware of the fact that his adversary, the defendant Pedro Bravo, had been boasting in San Carlos that he was sure to win his case because of his new lawyer. We believe that the petitioner the layman that he is did not take a belligerent or arrogant attitude toward respondent Judge. What he did was to request his lawyer, Atty. Macaraeg, to approach respondent Judge in his chamber and suggest to him to refrain from hearing the case on the new trial, precisely in order that respondent Judge might not be embarrassed or exposed to public odium. There is nothing in the record which shows that when respondent Judge refused to disqualify himself, the petitioner insisted in asking for his disqualification. If the request of petitioner for respondent Judge to disqualify himself came to the knowledge of the public it was because respondent Judge himself brought up the matter in open court. While We consider it improper for a litigant or counsel to see a judge in chambers and talk to him about a matter related to the case pending in the court of said judge, in the case now before Us we do not consider it as an act of contempt of court when petitioner asked his counsel to see respondent Judge in his chamber and request him to disqualify himself upon a ground which respondent Judge might consider just or valid. It is one thing to act not in accordance with the rules, and another thing to act in a manner which would amount to a disrespect or an affront to the dignity of the court or judge. We believe that the circumstances that led respondent Judge to declare petitioner in direct contempt of court

do not indicate any deliberate design on the part of petitioner to disrespect respondent Judge or to cast aspersion against his integrity as a judge. On the contrary, it may be said that petitioner wanted to avoid cause for any one to doubt the integrity of respondent Judge. This is so because when a party litigant desires or suggests the voluntary disqualification of a judge, it is understood, without saying it in so many words, that said litigant having knowledge of the past or present relationship of the judge with the other party or counsel feels that no matter how upright the judge is there is peril of his being unconsciously swayed by his former connection and he may unwittingly render a biased or unfair decision. Hence, while it may be conceded that in requesting the disqualification of a judge by reason of his relation with a party or counsel there is some implication of the probability of his being partial to one side, the request can not constitute contempt of court if done honesty and in a respectful manner, as was done by petitioner in the present case. Perhaps the fault of petitioner, if at all, is his having asked his counsel to make the request to respondent Judge inside the latter's chamber. The following observation of this Court, speaking, through Mr. Justice Dizon, is relevant to the question before Us: "Petitioner invoking the provisions of section 1, Rule 126 of the Rules of Court, argues that the case of respondent judge does not fall under any one of the grounds for the disqualification of judicial officers stated therein. Assuming arguendo that a literal interpretation of the legal provision relied upon justifies petitioner's contention to a certain degree, it should not be

forgotten that, in construing and applying said legal provision, we cannot disregard its true intention nor the real ground for the disqualification of a judge or judicial officer, which is the impossibility of rendering an impartial judgment upon the matter before him. It has been said, in fact, that due process of law requires a hearing before an impartial and disinterested tribunal, and that every litigant is entitled to nothing less than the cold neutrality of an impartial judge (30 Am. Jun. p. 767). Moreover, second only to the duty of rendering a just decision, is the duty of doing it in a manner that will not arouse any suspicion as to its fairness and the integrity of the Judge. Consequently, we take it to be the true intention of the law stated in general terms that no judge shall preside in a case in which he is not wholly free, disinterested, impartial and independent (30 Am. Jur. supra) . . ." 6 (Emphasis supplied) It is in line with the above-quoted observation that this Court, in amending the Rules of Court, added the second paragraph under Section 1 of Rule 137, which provides that a judge in the exercise of his sound discretion may disqualify himself from sitting in a case for just or valid grounds other than those specifically mentioned in the first paragraph of said section. 7 "The courts should administer justice free from suspicion or bias and prejudice; otherwise, parties litigants might lost confidence in the judiciary and destroy its nobleness and decorum" 8 Respondent Judge declared petitioner in contempt of court after the latter answered "Yes, sir" to this question of the judge: "Do you doubt the integrity of the presiding Judge to

decide this case fairly and impartially because the lawyer of the other party was my former assistant? Do you doubt? Just answer the question?" We believe that petitioner had not committed an act amounting to contempt of court when he made that answer. The petitioner had not misbehaved in court, or in the presence of respondent Judge, as to obstruct or interrupt the proceedings. Neither did the petitioner act in a manner that was disrespectful to respondent Judge. When petitioner answered "Yes, sir" to the question asked by respondent Judge, petitioner simply expressed his sincere feeling under the circumstances. In order that a person may be summarily punished for direct contempt of court, it must appear that his behavior or his utterance tends to obstruct the proceedings in court, or constitutes an affront to the dignity of the court. As stated by this Court, "Contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence, a defiance of the court . . ." 9 We commend the zeal shown by respondent Judge in his effort to protect his own integrity and the dignity of the court. We are constrained to say, however, that he had gone a little farther than what was necessary under the circumstances. We are inclined to believed that respondent Judge felt offended when petitioner answered "Yes, sir" to the question adverted to in the preceding paragraph. But the petitioner was simply truthful and candid to the court when he gave that answer. It would have been unfair to respondent Judge had petitioner answered "No, sir," because then he would not be sincere with the court, and he would be inconsistent with the request that he made through his counsel for respondent Judge to

inhibit himself from further hearing the case. When respondent Judge asked that question, he necessarily expected a truthful answer from petitioner, and indeed petitioner gave him the truthful answer. We are not persuaded that in so answering petitioner meant to be disrespectful, offensive or insulting to respondent Judge. Nor do We consider that in so answering petitioner meant to cast reflection on the integrity and honesty of respondent Judge. We believe that in so answering the petitioner was simply manifesting the misgiving of an ordinary layman about the outcome of his case that is going to be tried by a judge who has been closely associated with the counsel for his adversary. The petitioner would never have expressed that misgiving of his had respondent Judge not asked him in open court a question that invoked that answer. A judge can not prevent any person even a litigant or counsel in a case before him to entertain in his mind an opinion about him as a judge. Certainly, any person is entitled to his opinion about a judge, whether that opinion is flattering to the judge, or not. It would be different if a person would deliberately and maliciously express an adverse opinion about a judge, without reason, but simply to malign and discredit the judge. In the case now before Us We believe that petitioner did not mean to malign or discredit respondent Judge in answering as he did. It can be said that petitioner was simply moved by a desire to protect his interests in the case pending before the court presided by respondent Judge. A citizen of this Republic is entitled to expect that our courts of justice are presided by judges who are free from bias and prejudice and it should not be made a court against the citizen if he so expresses himself truthfully, sincerely,

and respectfully. A judge, as a public servant, should not be so thin-skinned or sensitive as to feel hurt or offended if a citizen expresses an honest opinion about him which may not altogether be flattering to him. 10 After all, what matters is that a judge performs his duties in accordance with the dictates of his conscience and the light that God has given him. A judge should never allow himself to be moved by pride, prejudice, passion, or pettiness in the performance of his duties. And a judge should always bear in mind that the power of the court to punish for contempt should be exercised for purposes that are impersonal, because that power is intended as a safeguard not for the judges as persons but for the functions that they exercise. It is worth mentioning here that numerous cases there have been where judges, and even members of this Court, were asked to inhibit themselves from trying, or from participating in the consideration of, a case, but scarcely were the movants punished for contempt even if the grounds upon which they based their motions for disqualification are not among those provided in the rules. It Is only when there was direct imputation of bias or prejudice, or a stubborn insistence to disqualify the judge, done in a malicious, arrogant, belligerent and disrespectful manner, that movants were held in contempt of court. 11 And this liberal attitude of the courts is in keeping with the doctrine that "The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail." 12 The power to punish for

contempt, being drastic and extraordinary in its nature, should not be resorted to unless necessary in the interest of justice. 13 Wherefore, the order of respondent Judge dated February 10, 1964, in Civil Case No. 13259 of the Court of First Instance of Pangasinan, declaring petitioner in direct contempt of court and ordering him to pay a fine of P50.00, is hereby annulled and set aside; and it is ordered that the sum of P50.00, paid under protest by petitioner as a fine, be refunded to him. No costs. It is so ordered. Concepcion, C .J ., Reyes, J .B.L., Dizon, Makalintal, Bengzon, J .P., Sanchez, Castro, Angeles and Fernando, JJ ., concur. [G.R. No. L-23815. June 28, 1974.] ADELINO H. LEDESMA, petitioner, vs. HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First Instance of Negros Occidental, Branch I, Silay City, respondent. Adelino E. Ledesma in his own behalf. Hon. Rafael C. Climaco in his own behalf. DECISION FERNANDO, J p: What is assailed in this certiorari proceeding is an order of respondent Judge denying a motion filed by petitioner to be allowed to withdraw as counsel de oficio. 1 One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the Commission on Elections, he was not in a position to devote full time to the defense of the two accused. The denial by respondent

Judge of such a plea, notwithstanding the conformity of the defendants, was due "its principal effect [being] to delay this case." 2 It was likewise noted that the prosecution had already rested and that petitioner was previously counsel de parte, his designation in the former category being precisely to protect him in his new position without prejudicing the accused. It cannot be plausibly asserted that such failure to allow withdrawal of de oficio counsel could ordinarily be characterized as a grave abuse of discretion correctible by certiorari. There is, however, the overriding concern for the right to counsel of the accused that must be taken seriously into consideration. In appropriate cases, it should tilt the balance. This is not one of them. What is easily discernible was the obvious reluctance of petitioner to comply with the responsibilities incumbent on the counsel de oficio. Then, too, even on the assumption that he continues in his position, his volume of work is likely to be very much less at present. There is not now the slightest pretext for him to shirk an obligation a member of the bar, who expects to remain in good standing, should fulfill. The petition is clearly without merit. According to the undisputed facts, petitioner, on October 13, 1964, was appointed Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then and there, he commenced to discharge its duties. As he was counsel de parte for one of the accused in a case pending in the sala of respondent Judge, he filed a motion to withdraw as such. Not only did respondent Judge deny such motion, but he also appointed him counsel de oficio for the two defendants. Subsequently, on November 3, 1964, petitioner filed an urgent motion to be

allowed to withdraw as counsel de oficio, premised on the policy of the Commission on Elections to require full time service as well as on the volume or pressure of work of petitioner, which could prevent him from handling adequately the defense. Respondent Judge, in the challenged order of November 6, 1964, denied said motion. A motion for reconsideration having proved futile, he instituted this certiorari proceeding. 3 As noted at the outset, the petition must fail. 1. The assailed order of November 6, 1964 denying the urgent motion of petitioner to withdraw as counsel de oficio speaks for itself. It began with a reminder that a crime was allegedly committed on February 17, 1962, with the proceedings having started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke of his order of October 16, 1964 which reads thus: "In view of the objection of the prosecution to the 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 3, 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, 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. Estebia 11 reiterated such a view in these words: "It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. He is to render effective assistance. The accused-defendant expects of

him due diligence, not mere perfunctory representation. . . . For, indeed a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self-interest." 12 The weakness of the petition is thus quite evident. 3. If respondent Judge were required to answer the petition, it was only due to the apprehension that considering the frame of mind of a counsel loath and reluctant to fulfill his obligation, the welfare of the accused could be prejudiced. His right to counsel could in effect be rendered nugatory. Its importance was rightfully stressed by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our 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 self-interest.

WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner. Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur. Barredo, J., did not take part. [G.R. No. L-22536. August 31, 1967.] DOMINGO V. AUSTRIA, petitioner, vs. HON. ANTONIO C. MASAQUEL, in his capacity as the Presiding Judge of Branch II of the Court of First Instance of Pangasinan, respondent. Primicias, Del Castillo & Macaraeg for petitioner. Antonio C . Masaquel for respondent. SYLLABUS 1. DIRECT CONTEMPT; REQUEST FOR JUDGE'S INHIBITION NOT CONTEMPTUOUS. Where counsel, upon request of his client, verbally requests a Judge of First Instance in chambers for the latter's inhibition to further hearing the case on the ground that opposing counsel has been the Judge's associate in the practice of law, and where the Judge himself later brings the matter up in open court and the litigant, when asked whether he doubts the integrity of the Judge to decide the case fairly on such ground, and answer "Yes Sir," in a respectfully manner, the Judge acts in excess of his jurisdiction and with grave abuse of discretion in imposing a fine of P50.00 for direct contempt. 2. ID.; RULES OF COURT, RULE 137, SEC. 1; DISQUALIFICATION OF JUDGES. Where a Judge had already decided the case for recovery

of land against a defendant and had placed the plaintiffs in possession thereof pending appeal; where another lawyer who was a former associate of the judge in the practice of law appears for the losing party and asks not only for the stay of execution but also restoration of possession to defendant and a new trial, which were all granted over the vigorous objections of counsel for plaintiffs; and where said defendant had been boasting that he was sure to win his case because of his new lawyer, may constitutes a just and valid reason for said Judge to voluntarily inhibit himself from hearing the case on a retrial, if he so desires, under the second paragraph of Sec. 1 of Rule 137 of the Rules of Court, although former association with counsel is not one of the grounds enumerated for disqualification in the first paragraph thereof. 3. ID.; EXPRESSION OF SINCERITY NOT CONTEMPTUOUS. Where a party is asked by the Judge "Do you doubt the integrity of the presiding Judge to decide this case fairly and impartially because the lawyer of the other party was my former assistant? " and answers "Yes, sir" without misbehaving in court or in the presence of the Judge as to obstruct or interrupt the proceedings, he is simply expressing his sincere feeling under the circumstances. 4. ID.; REQUISITE. In order that one may be summarily punished for direct contempt, it must appear that his behavior or his utterance tends to obstruct the proceedings in court, or constitutes an affront to the dignity of the court.

5. ID JUDGES, PERSONAL OPINIONS ABOUT THEM. A judge cannot prevent any person - even a litigant or counsel in a case before him - to entertain in his mind an opinion about him as a judge. Certainly, any person is entitled to his opinion about a judge, whether that opinion is flattering to the judge, or not. A citizen is entitled to expect that our courts of justice are presided by judges who are free from bias and prejudice and it should not be made a count against the citizen if he so expresses himself truthfully, sincerely, and respectfully. A judge, as a public servant, should not be so thin-skinned or sensitive as to feel hurt or offended if a citizen expresses honest opinion about him which may not be altogether flattering to him. 6. ID.; POWER OF CONTEMPT IS FOR THE PROTECTION OF THE COURT NOT OF THE JUDGE. A judge should always bear in mind that the power of the court to punish for contempt should be exercised for purposes that are impersonal, because that power is intended as a safeguard not for the judges as persons but for the functions that they exercise. DECISION ZALDIVAR, J p: This is a petition for a writ of certiorari to annul or set aside the order respondent Judge Antonio Masaquel, dated February 10, 1964, in Civil Case No. 13258 of the Court of First Instance of Pangasinan, declaring petitioner Domingo V. Austria guilty of contempt of court and imposing upon him a fine of P50.00. The facts that gave rise to the incident in question are not disputed. Petitioner was one

of the plaintiffs in the above-mentioned Civil Case No. 13258, 1 against Pedro Bravo for the recovery of three parcels of land one parcel being located at Bayambang and two parcels in San Carlos, in the province of Pangasinan. On April 19, 1963, after trial, respondent Judge rendered a decision declaring the plaintiffs the owners of the three parcels of land in question and ordering the defendant to vacate the lands and pay the plaintiffs damages only with respect to the land located at Bayambang. The plaintiffs filed a motion for the immediate execution of the judgment which motion was granted by respondent Judge on May 31, 1963 and, upon the plaintiffs' having posted a surety bond in the sum of P2,000.00, the sheriff placed them in possession of the lands located at San Carlos. On May 23, 1963, Atty. Mariano C. Sicat, a former assistant or associate of respondent Judge when the latter was still in the practice of law before his appointment to the bench, entered his appearance as the new counsel for defendant Pedro Bravo, vice Atty. Antonio Resngit. On June 14, 1963, the defendant, through Atty. Sicat, filed a supersedeas bond to stay the execution of the judgment, and on June 20, 1963 respondent Judge granted the stay of execution, over the objection of plaintiffs, and ordered the sheriff to restore the possession of the lands in San Carlos to the defendant. The petitioner likewise had asked for the appointment of a receiver over the parcel of land located at Bayambang, which prayer was granted by respondent Judge on July 8, 1963; but upon the filing of a bond by the defendant for the non-appointment of a receiver, the order of receivership was set aside. On August 24, 1963, pending the approval of the

defendant's amended record on appeal, Atty. Sicat filed a motion for new trial and to set aside the judgment and, over the vigorous objection of plaintiffs, the respondent Judge granted the said motion on November 7, 1963. The hearing on the retrial was finally set for February 10, 1964. Before the opening of the court's session in the morning of February 10, 1964, Atty. Daniel Macaraeg, counsel for petitioner and his coplaintiffs, saw respondent Judge in his chamber and verbally transmitted to him the request of petitioner that he (the Judge) inhibit himself from further hearing the case upon the ground that the new counsel for the defendant, Atty. Mariano C. Sicat, was his former associate. The respondent Judge, however, rejected the request because, according to him, the reason for the request of his inhibition is not one of the grounds for disqualification of a judge provided for in the Rules of Court. Thereafter, when the case was called for hearing in open court, the following transpired, as shown by the transcript of the stenographic notes taken during said hearing: 2 "APPEARANCE: ATTY. DANIEL C. MACARAEG appeared in behalf of plaintiffs. (After the case was called) COURT: Your client is here? ATTY. MACARAEG: Yes, Your Honor

COURT: Where is he? ATTY. MACARAEG: He is here, Your Honor. COURT: What is your name? PLAINTIFF: Domingo Austria, sir. COURT: You are one of the plaintiffs in this case? DOMINGO AUSTRIA: Yes, sir. COURT: Atty. Macaraeg approached me in chambers requesting me to disqualify myself in hearing this case. Did you authorize Atty. Macaraeg to approach me verbally to disqualify myself from hearing, this case because the lawyer of the other party was my former assistant? DOMINGO AUSTRIA: Yes, sir. COURT: Is that your reason why you requested Atty. Macaraeg to approach me, requesting me to disqualify myself simply because the lawyer of the other party was my assistant?

DOMINGO AUSTRIA: Yes, sir. COURT: All right. Do you doubt the integrity of the presiding Judge to decide this case fairly and impartially because the lawyer of the other party was my former assistant? Do you doubt? Just answer the question? DOMINGO AUSTRIA: Yes, sir. COURT: The Court hereby finds you guilty of contempt of Court and you are hereby ordered to pay a fine of P50.00. ATTY. MACARAEG: With due indulgence of this Honorable Court - I have just learned, after I have conferred with you in chambers, another ground of the plaintiffs for their requesting me to ask for the disqualification of Your Honor in this case, and this ground consists of the rampant rumor coming from the defendant Pedro Bravo himself that he is boasting in San Carlos that because he has a new lawyer, that surely he is going to win this case. COURT: Why did you not wait until the case is finally decided and find out if that is true or not? ATTY. MACARAEG:

And maybe, that is why the plaintiffs requested me to approach Your Honor because of that rampant rumor that Pedro Bravo is spreading. COURT: You mean to say because of that rumor, you are going to doubt my integrity? ATTY. MACARAEG: As for me, I entertain no doubt, Your Honor. COURT: Your client expressed openly in Court his doubts on the integrity of the Court simply based on rumors and that is a ground for contempt of court, if only to maintain the faith of the people in the courts. ATTY. MACARAEG: Taking into consideration that these plaintiffs are laymen and we cannot expect from them the thinking of a lawyer, I am most respectfully praying that the Order of this Court be reconsidered. COURT: Denied. Your client should pay a fine of P50.00. We will hear this case this afternoon. ATTY. MACARAEG: Yes, Your Honor." The respondent Judge forthwith dictated the following order: 3 "Before this Court opened its sessions this morning, Atty. Daniel C. Macaraeg, counsel for

the plaintiffs, approached the presiding Judge of this Court in his chambers and manifested the desire of his clients for the Judge to disqualify himself from trying the aboveentitled case for the reason that counsel for the defendant, Atty. Marciano C. Sicat was formerly an associate of the Judge of this Court while he was still engaged in the practice of law. To this manifestation of Atty. Macaraeg, the Presiding Judge informed the latter that such fact alone does not in itself constitute a legal ground to disqualify the Presiding Judge of this Court, from trying this case. "When the above-entitled case was called for hearing, the Presiding Judge called on one of the plaintiffs who was present, namely, Domingo Austria, and inquired from the latter if it was true that he asked his lawyer Atty. Macaraeg to approach the Judge in chambers and to ask him to disqualify himself from trying this case because defendant's lawyer Atty. Sicat was formerly associated with the said Judge. To this query Domingo Austria answered in the affirmative. When he was also asked as to whether the said Domingo Austria has lost faith in the sense of fairness and justice of the Presiding Judge of this Court simply because of his former association with the defendant's lawyer, said Domingo Austria likewise answered in the affirmative. "The Court considers the actuation of the plaintiff Domingo Austria, in the premises, as offensive, insulting and a reflection on the integrity and honesty of the Presiding Judge of this Court and shows his lack of respect to the Court. The said Domingo Austria is not justified and has no reason to entertain doubts in the fairness and integrity of the Presiding Judge of

this Court, simply because of the latter's former association with defendant's counsel. For this reason and in order to maintain the people's faith and respect in their courts the last bulwark in our democratic institutions the Presiding Judge declared said plaintiff Domingo Austria in direct contempt of court and he was ordered to pay a fine of P50.00. "The Court found from the manifestation of plaintiffs' counsel Atty. Macaraeg that the basis of the statement, of Domingo Austria that he has lost his faith in the Presiding Judge of this Court is the rumors being circulated by the defendant Pedro Bravo that he will surely win in the present case because of his new lawyer, Atty. Marciano C. Sicat. The Court believes that rumors of the sort do not serve as a sufficient basis or justification for the plaintiff Domingo Austria to insinuate bias and partiality, on the part of the Court and to express openly his loss of faith and confidence in the integrity, fairness and capability of the Presiding Judge of this Court to perform his sworn duty of upholding and administering justice, without fear or favor, and by reason of which this Court denied the verbal motion to reconsider filed by counsel for the plaintiff Domingo Austria, finding him guilty of contempt of court and ordering him to pay a fine of P50.00. "SO ORDERED "Given in open court this 10th day of February, 1964, at Lingayen, Pangasinan." Petitioner Domingo Austria, accordingly, paid the fine of P50.00 under protest. Having been punished summarily for direct contempt of court, and the remedy of appeal not being

available to him, petitioner filed the instant petition for certiorari before this Court. It is the position of the petitioner that under the facts and circumstances attendant to the hearing of Civil Case No. 13250 on February 10, 1963, he had not committed an act of contempt against the court and the respondent Judge had acted in excess of his jurisdiction and with grave abuse of discretion when he declared the petitioner in direct contempt of court and imposed on him the fine of P50.00 as a penalty. After a careful study of the record, We find merit in this petition. The respondent Judge declared the petitioner in direct contempt of court. Our task, therefore, is to determine whether or not the petitioner was guilty of misbehavior in the presence of or so near a court or judge as to obstruct or interrupt the proceedings before the same, or had committed an act of disrespect toward the court or judge. 4 The respondent Judge considered the actuation of the petitioner, in the premises, as offensive, insulting, and a reflection on his integrity and honesty and a showing of lack of respect to the court. The respondent Judge considered that the petitioner was not justified and had no reason to entertain doubts in his fairness and integrity simply because the defendant's counsel was his former associate. We do not agree with the respondent Judge. It is our considered view that when the petitioner requested respondent Judge to inhibit himself from further trying the case upon the ground that the counsel for the opposite party was the former associate of the respondent Judge,

petitioner did so because he was impelled by a justifiable apprehension which can occur in the mind of a litigant who sees what seems to be an advantage on the part of his adversary; and that the petitioner made his request in a manner that was not disrespectful, much less insulting or offensive to the respondent Judge or to the court. We are in accord with the statement of respondent Judge in his memorandum that the circumstance invoked by petitioner in asking him to inhibit himself from further trying the case that Atty. Sicat was his former associate in his practice of law is not one of the grounds enumerated in the first paragraph of Section 1, Rule 137 of the new Rules of Court for disqualifying a judge. While it is true that respondent Judge may not be compelled to disqualify himself, the fact that Atty. Sicat, admittedly his former associate, was counsel for a party in the case being tried by him, may constitute a just or valid reason for him to voluntarily inhibit himself from hearing the case on a re-trial, if he so decides, pursuant to the provision of the second paragraph of Section 1 of the said Rule 137. 5 The apprehension of petitioner regarding the probable bias of respondent Judge does not appear to be groundless or entirely devoid of reason. The respondent Judge had decided the case in favor of petitioner and his co-plaintiffs, and that upon plaintiffs' timely motion and filing of bond they were already placed in possession of the lands in question pending appeal. It was when Atty. Sicat took over as new counsel for defendant that the latter was given back the properties, upon a motion to stay the execution of the judgment which was filed by

said counsel and was granted by respondent Judge over the opposition of petitioner's counsel. Again, when the same counsel for defendant filed a motion for a new trial, said motion was granted by respondent Judge in spite of the vigorous objection of counsel for the petitioner and his co-plaintiffs. And then the petitioner became aware of the fact that his adversary, the defendant Pedro Bravo, had been boasting in San Carlos that he was sure to win his case because of his new lawyer. We believe that the petitioner the layman that he is did not take a belligerent or arrogant attitude toward respondent Judge. What he did was to request his lawyer, Atty. Macaraeg, to approach respondent Judge in his chamber and suggest to him to refrain from hearing the case on the new trial, precisely in order that respondent Judge might not be embarrassed or exposed to public odium. There is nothing in the record which shows that when respondent Judge refused to disqualify himself, the petitioner insisted in asking for his disqualification. If the request of petitioner for respondent Judge to disqualify himself came to the knowledge of the public it was because respondent Judge himself brought up the matter in open court. While We consider it improper for a litigant or counsel to see a judge in chambers and talk to him about a matter related to the case pending in the court of said judge, in the case now before Us we do not consider it as an act of contempt of court when petitioner asked his counsel to see respondent Judge in his chamber and request him to disqualify himself upon a ground which respondent Judge might consider just or valid. It is one thing to act not in

accordance with the rules, and another thing to act in a manner which would amount to a disrespect or an affront to the dignity of the court or judge. We believe that the circumstances that led respondent Judge to declare petitioner in direct contempt of court do not indicate any deliberate design on the part of petitioner to disrespect respondent Judge or to cast aspersion against his integrity as a judge. On the contrary, it may be said that petitioner wanted to avoid cause for any one to doubt the integrity of respondent Judge. This is so because when a party litigant desires or suggests the voluntary disqualification of a judge, it is understood, without saying it in so many words, that said litigant having knowledge of the past or present relationship of the judge with the other party or counsel feels that no matter how upright the judge is there is peril of his being unconsciously swayed by his former connection and he may unwittingly render a biased or unfair decision. Hence, while it may be conceded that in requesting the disqualification of a judge by reason of his relation with a party or counsel there is some implication of the probability of his being partial to one side, the request can not constitute contempt of court if done honesty and in a respectful manner, as was done by petitioner in the present case. Perhaps the fault of petitioner, if at all, is his having asked his counsel to make the request to respondent Judge inside the latter's chamber. The following observation of this Court, speaking, through Mr. Justice Dizon, is relevant to the question before Us: "Petitioner invoking the provisions of section 1, Rule 126 of the Rules of Court, argues that the

case of respondent judge does not fall under any one of the grounds for the disqualification of judicial officers stated therein. Assuming arguendo that a literal interpretation of the legal provision relied upon justifies petitioner's contention to a certain degree, it should not be forgotten that, in construing and applying said legal provision, we cannot disregard its true intention nor the real ground for the disqualification of a judge or judicial officer, which is the impossibility of rendering an impartial judgment upon the matter before him. It has been said, in fact, that due process of law requires a hearing before an impartial and disinterested tribunal, and that every litigant is entitled to nothing less than the cold neutrality of an impartial judge (30 Am. Jun. p. 767). Moreover, second only to the duty of rendering a just decision, is the duty of doing it in a manner that will not arouse any suspicion as to its fairness and the integrity of the Judge. Consequently, we take it to be the true intention of the law stated in general terms that no judge shall preside in a case in which he is not wholly free, disinterested, impartial and independent (30 Am. Jur. supra) . . ." 6 (Emphasis supplied) It is in line with the above-quoted observation that this Court, in amending the Rules of Court, added the second paragraph under Section 1 of Rule 137, which provides that a judge in the exercise of his sound discretion may disqualify himself from sitting in a case for just or valid grounds other than those specifically mentioned in the first paragraph of said section. 7 "The courts should administer justice free from suspicion or bias and prejudice; otherwise, parties litigants might lost confidence in the

judiciary and destroy its nobleness and decorum" 8 Respondent Judge declared petitioner in contempt of court after the latter answered "Yes, sir" to this question of the judge: "Do you doubt the integrity of the presiding Judge to decide this case fairly and impartially because the lawyer of the other party was my former assistant? Do you doubt? Just answer the question?" We believe that petitioner had not committed an act amounting to contempt of court when he made that answer. The petitioner had not misbehaved in court, or in the presence of respondent Judge, as to obstruct or interrupt the proceedings. Neither did the petitioner act in a manner that was disrespectful to respondent Judge. When petitioner answered "Yes, sir" to the question asked by respondent Judge, petitioner simply expressed his sincere feeling under the circumstances. In order that a person may be summarily punished for direct contempt of court, it must appear that his behavior or his utterance tends to obstruct the proceedings in court, or constitutes an affront to the dignity of the court. As stated by this Court, "Contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence, a defiance of the court . . ." 9 We commend the zeal shown by respondent Judge in his effort to protect his own integrity and the dignity of the court. We are constrained to say, however, that he had gone a little farther than what was necessary under the circumstances. We are inclined to believed that respondent Judge felt offended when petitioner answered "Yes, sir" to the question adverted to in the preceding paragraph. But the petitioner

was simply truthful and candid to the court when he gave that answer. It would have been unfair to respondent Judge had petitioner answered "No, sir," because then he would not be sincere with the court, and he would be inconsistent with the request that he made through his counsel for respondent Judge to inhibit himself from further hearing the case. When respondent Judge asked that question, he necessarily expected a truthful answer from petitioner, and indeed petitioner gave him the truthful answer. We are not persuaded that in so answering petitioner meant to be disrespectful, offensive or insulting to respondent Judge. Nor do We consider that in so answering petitioner meant to cast reflection on the integrity and honesty of respondent Judge. We believe that in so answering the petitioner was simply manifesting the misgiving of an ordinary layman about the outcome of his case that is going to be tried by a judge who has been closely associated with the counsel for his adversary. The petitioner would never have expressed that misgiving of his had respondent Judge not asked him in open court a question that invoked that answer. A judge can not prevent any person even a litigant or counsel in a case before him to entertain in his mind an opinion about him as a judge. Certainly, any person is entitled to his opinion about a judge, whether that opinion is flattering to the judge, or not. It would be different if a person would deliberately and maliciously express an adverse opinion about a judge, without reason, but simply to malign and discredit the judge. In the case now before Us We believe that petitioner did not mean to malign or discredit respondent Judge in answering as he did. It can be said that petitioner was simply moved by a desire to

protect his interests in the case pending before the court presided by respondent Judge. A citizen of this Republic is entitled to expect that our courts of justice are presided by judges who are free from bias and prejudice and it should not be made a court against the citizen if he so expresses himself truthfully, sincerely, and respectfully. A judge, as a public servant, should not be so thin-skinned or sensitive as to feel hurt or offended if a citizen expresses an honest opinion about him which may not altogether be flattering to him. 10 After all, what matters is that a judge performs his duties in accordance with the dictates of his conscience and the light that God has given him. A judge should never allow himself to be moved by pride, prejudice, passion, or pettiness in the performance of his duties. And a judge should always bear in mind that the power of the court to punish for contempt should be exercised for purposes that are impersonal, because that power is intended as a safeguard not for the judges as persons but for the functions that they exercise. It is worth mentioning here that numerous cases there have been where judges, and even members of this Court, were asked to inhibit themselves from trying, or from participating in the consideration of, a case, but scarcely were the movants punished for contempt even if the grounds upon which they based their motions for disqualification are not among those provided in the rules. It Is only when there was direct imputation of bias or prejudice, or a stubborn insistence to disqualify the judge, done in a malicious, arrogant, belligerent and disrespectful manner, that movants were held in contempt of court. 11 And this liberal attitude of the courts is in keeping with the

doctrine that "The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail." 12 The power to punish for contempt, being drastic and extraordinary in its nature, should not be resorted to unless necessary in the interest of justice. 13 Wherefore, the order of respondent Judge dated February 10, 1964, in Civil Case No. 13259 of the Court of First Instance of Pangasinan, declaring petitioner in direct contempt of court and ordering him to pay a fine of P50.00, is hereby annulled and set aside; and it is ordered that the sum of P50.00, paid under protest by petitioner as a fine, be refunded to him. No costs. It is so ordered. Concepcion, C .J ., Reyes, J .B.L., Dizon, Makalintal, Bengzon, J .P., Sanchez, Castro, Angeles and Fernando, JJ ., concur. [G.R. No. L-23815. June 28, 1974.] ADELINO H. LEDESMA, petitioner, vs. HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First Instance of Negros Occidental, Branch I, Silay City, respondent. Adelino E. Ledesma in his own behalf. Hon. Rafael C. Climaco in his own behalf. DECISION FERNANDO, J p: What is assailed in this certiorari proceeding is an order of respondent Judge denying a motion

filed by petitioner to be allowed to withdraw as counsel de oficio. 1 One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the Commission on Elections, he was not in a position to devote full time to the defense of the two accused. The denial by respondent Judge of such a plea, notwithstanding the conformity of the defendants, was due "its principal effect [being] to delay this case." 2 It was likewise noted that the prosecution had already rested and that petitioner was previously counsel de parte, his designation in the former category being precisely to protect him in his new position without prejudicing the accused. It cannot be plausibly asserted that such failure to allow withdrawal of de oficio counsel could ordinarily be characterized as a grave abuse of discretion correctible by certiorari. There is, however, the overriding concern for the right to counsel of the accused that must be taken seriously into consideration. In appropriate cases, it should tilt the balance. This is not one of them. What is easily discernible was the obvious reluctance of petitioner to comply with the responsibilities incumbent on the counsel de oficio. Then, too, even on the assumption that he continues in his position, his volume of work is likely to be very much less at present. There is not now the slightest pretext for him to shirk an obligation a member of the bar, who expects to remain in good standing, should fulfill. The petition is clearly without merit. According to the undisputed facts, petitioner, on October 13, 1964, was appointed Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then and there, he commenced to discharge its duties. As he was

counsel de parte for one of the accused in a case pending in the sala of respondent Judge, he filed a motion to withdraw as such. Not only did respondent Judge deny such motion, but he also appointed him counsel de oficio for the two defendants. Subsequently, on November 3, 1964, petitioner filed an urgent motion to be allowed to withdraw as counsel de oficio, premised on the policy of the Commission on Elections to require full time service as well as on the volume or pressure of work of petitioner, which could prevent him from handling adequately the defense. Respondent Judge, in the challenged order of November 6, 1964, denied said motion. A motion for reconsideration having proved futile, he instituted this certiorari proceeding. 3 As noted at the outset, the petition must fail. 1. The assailed order of November 6, 1964 denying the urgent motion of petitioner to withdraw as counsel de oficio speaks for itself. It began with a reminder that a crime was allegedly committed on February 17, 1962, with the proceedings having started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke of his order of October 16, 1964 which reads thus: "In view of the objection of the prosecution to the 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 3, 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, 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. Estebia 11 reiterated such a view in these words: "It is true that he is a court-appointed counsel. But we do say that as

such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. He is to render effective assistance. The accused-defendant expects of him due diligence, not mere perfunctory representation. . . . For, indeed a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self-interest." 12 The weakness of the petition is thus quite evident. 3. If respondent Judge were required to answer the petition, it was only due to the apprehension that considering the frame of mind of a counsel loath and reluctant to fulfill his obligation, the welfare of the accused could be prejudiced. His right to counsel could in effect be rendered nugatory. Its importance was rightfully stressed by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our

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 self-interest. WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner. Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur. Barredo, J., did not take part.

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