Ambaked, Jelvette LaneT.

PALE, 3-B

[A.M. SDC-97-2-P. February 24, 1997]

SOPHIA ALAWI, complainant, vs. ASHARY M. ALAUYA, Clerk of Court VI, Shari'a
District Court, Marawi City,respondent.

Sophia Alawi was (and presumably still is) a sales representative (or coordinator) of
E. B. Villarosa & Partners Co., Ltd. of Davao City, a real estate and housing company.
Ashari M. Alauya is the incumbent executive clerk of court of the 4th Judicial Shari'a
District in Marawi City. They were classmates, and used to be friends.
It appears that through Alawi's agency, a contract was executed for the purchase on
installments by Alauya of one of the housing units belonging to the above mentioned
firm (hereafter, simply Villarosa & Co.); and in connection therewith, a housing loan was
also granted to Alauya by the National Home Mortgage Finance Corporation (NHMFC).
Not long afterwards, or more precisely on December 15, 1995, Alauya addressed a
letter to the President of Villarosa & Co. advising of the termination of his contract with
the company. He wrote:
" ** I am formally and officially withdrawing from and notifying you of my intent to
terminate the Contract/Agreement entered into between me and your company, as
represented by your Sales Agent/Coordinator, SOPHIA ALAWI, of your company's
branch office here in Cagayan de Oro City, on the grounds that my consent was vitiated
by gross misrepresentation, deceit, fraud, dishonesty and abuse of confidence by the
aforesaid sales agent which made said contract void ab initio. Said sales agent acting in
bad faith perpetrated such illegal and unauthorized acts which made said contract an
Onerous Contract prejudicial to my rights and interests."
He then proceeded to expound in considerable detail and quite acerbic language on the
"grounds which could evidence the bad faith, deceit, fraud, misrepresentation,
dishonesty and abuse of confidence by the unscrupulous sales agent ** ;" and closed
with the plea that Villarosa & Co. "agree for the mutual rescission of our contract, even
as I inform you that I categorically state on record that I am terminating the contract **. I
hope I do not have to resort to any legal action before said onerous and manipulated
contract against my interest be annulled. I was actually fooled by your sales agent,
hence the need to annul the controversial contract."
Alauya sent a copy of the letter to the Vice-President of Villarosa & Co. at San
Pedro, Gusa, Cagayan de Oro City. The envelope containing it, and which actually went
through the post, bore no stamps. Instead at the right hand corner above the description
of the addressee, the words, "Free Postage PD 26," had been typed.

On the same date, December 15, 1995, Alauya also wrote to Mr. Fermin T. Arzaga,
Vice-President, Credit & Collection Group of the National Home Mortgage Finance
Corporation (NHMFC) at Salcedo Village, Makati City, repudiating as fraudulent and
void his contract with Villarosa & Co.; and asking for cancellation of his housing loan in
connection therewith, which was payable from salary deductions at the rate
of P4,338.00 a month. Among other things, he said:
" ** (T)hrough this written notice, I am terminating, as I hereby annul, cancel, rescind
and voided, the 'manipulated contract' entered into between me and the E.B. Villarosa &
Partner Co., Ltd., as represented by its sales agent/coordinator, SOPHIA ALAWI, who
maliciously and fraudulently manipulated said contract and unlawfully secured and
pursued the housing loan without my authority and against my will. Thus, the contract
itself is deemed to be void ab initio in view of the attending circumstances, that my
consent was vitiated by misrepresentation, fraud, deceit, dishonesty, and abuse of
confidence; and that there was no meeting of the minds between me and the swindling
sales agent who concealed the real facts from me."
And, as in his letter to Villarosa & Co., he narrated in some detail what he took to be the
anomalous actuations of Sophia Alawi.
Alauya wrote three other letters to Mr. Arzaga of the NHMFC, dated February 21,
1996, April 15, 1996, and May 3, 1996, in all of which, for the same reasons already
cited, he insisted on the cancellation of his housing loan and discontinuance of
deductions from his salary on account thereof. a He also wrote on January 18, 1996 to
Ms. Corazon M. Ordoez, Head of the Fiscal Management & Budget Office, and to the
Chief, Finance Division, both of this Court, to stop deductions from his salary in relation
to the loan in question, again asserting the anomalous manner by which he was
allegedly duped into entering into the contracts by "the scheming sales agent." b
The upshot was that in May, 1996, the NHMFC wrote to the Supreme Court
requesting it to stop deductions on Alauya's UHLP loan "effective May 1996," and began
negotiating with Villarosa & Co. "for the buy-back of ** (Alauya's) mortgage, and ** the
refund of ** (his) payments."c
On learning of Alauya's letter to Villarosa & Co. of December 15, 1995, Sophia Alawi
filed with this Court a verified complaint dated January 25, 1996 -- to which she
appended a copy of the letter, and of the above mentioned envelope bearing the
typewritten words, "Free Postage PD 26."[1] In that complaint, she accused Alauya of:
1. "Imputation of malicious and libelous charges with no solid grounds through manifest
ignorance and evident bad faith;"
2. "Causing undue injury to, and blemishing her honor and established reputation;"
3. "Unauthorized enjoyment of the privilege of free postage **;" and
4. Usurpation of the title of "attorney," which only regular members of the Philippine Bar
may properly use.
She deplored Alauya's references to her as "unscrupulous, swindler, forger,
manipulator, etc." without "even a bit of evidence to cloth (sic) his allegations with the
essence of truth," denouncing his imputations as irresponsible, "all concoctions, lies,
baseless and coupled with manifest ignorance and evident bad faith," and asserting that

all her dealings with Alauya had been regular and completely transparent. She closed
with the plea that Alauya "be dismissed from the service, or be appropriately disciplined
(sic) ** "
The Court resolved to order Alauya to comment on the complaint. Conformably with
established usage that notices of resolutions emanate from the corresponding Office of
the Clerk of Court, the notice of resolution in this case was signed by Atty. Alfredo P.
Marasigan, Assistant Division Clerk of Court.[2]
Alauya first submitted a "Preliminary Comment" [3] in which he questioned the
authority of Atty. Marasigan to require an explanation of him, this power pertaining,
according to him, not to "a mere Asst. Div. Clerk of Court investigating an Executive
Clerk of Court." but only to the District Judge, the Court Administrator or the Chief
Justice, and voiced the suspicion that the Resolution was the result of a "strong link"
between Ms. Alawi and Atty. Marasigan's office. He also averred that the complaint had
no factual basis; Alawi was envious of him for being not only "the Executive Clerk of
court and ex-officio Provincial Sheriff and District Registrar," but also "a scion of a Royal
Family **."[4]
In a subsequent letter to Atty. Marasigan, but this time in much less aggressive,
even obsequious tones,[5] Alauya requested the former to give him a copy of the
complaint in order that he might comment thereon. [6] He stated that his acts as clerk of
court were done in good faith and within the confines of the law; and that Sophia Alawi
as sales agent of Villarosa & Co. had, by falsifying his signature, fraudulently bound him
to a housing loan contract entailing monthly deductions of P4,333.10 from his salary.
And in his comment thereafter submitted under date of June 5, 1996, Alauya
contended that it was he who had suffered "undue injury, mental anguish, sleepless
nights, wounded feelings and untold financial suffering," considering that in six months,
a total ofP26,028.60 had been deducted from his salary.[7] He declared that there was
no basis for the complaint; in communicating with Villarosa & Co. he had merely acted
in defense of his rights. He denied any abuse of the franking privilege, saying that he
gave P20.00 plus transportation fare to a subordinate whom he entrusted with the
mailing of certain letters; that the words: "Free Postage PD 26," were typewritten on the
envelope by some other person, an averment corroborated by the affidavit of Absamen
C. Domocao, Clerk IV (subscribed and sworn to before respondent himself, and
attached to the comment as Annex J);[8] and as far as he knew, his subordinate mailed
the letters with the use of the money he had given for postage, and if those letters were
indeed mixed with the official mail of the court, this had occurred inadvertently and
because of an honest mistake.[9]
Alauya justified his use of the title, "attorney," by the assertion that it is "lexically
synonymous" with "Counsellors-at-law," a title to which Shari'a lawyers have a rightful
claim, adding that he prefers the title of "attorney" because "counsellor" is often
mistaken for "councilor," "konsehal or the Maranao term "consial," connoting a local
legislator beholden to the mayor. Withal, he does not consider himself a lawyer.
He pleads for the Court's compassion, alleging that what he did "is expected of any
man unduly prejudiced and injured." [10] He claims he was manipulated into reposing his
trust in Alawi, a classmate and friend.[11] He was induced to sign a blank contract on
Alawi's assurance that she would show the completed document to him later for
correction, but she had since avoided him; despite "numerous letters and follow-ups" he
still does not know where the property -- subject of his supposed agreement with Alawi's

principal, Villarosa & Co. -- is situated; [12] He says Alawi somehow got his GSIS policy
from his wife, and although she promised to return it the next day, she did not do so until
after several months. He also claims that in connection with his contract with Villarosa &
Co., Alawi forged his signature on such pertinent documents as those regarding the
down payment, clearance, lay-out, receipt of the key of the house, salary deduction,
none of which he ever saw.[13]
Averring in fine that his acts in question were done without malice, Alauya prays for
the dismissal of the complaint for lack of merit, it consisting of "fallacious, malicious and
baseless allegations," and complainant Alawi having come to the Court with unclean
hands, her complicity in the fraudulent housing loan being apparent and demonstrable.
It may be mentioned that in contrast to his two (2) letters to Assistant Clerk of Court
Marasigan (dated April 19, 1996 and April 22, 1996), and his two (2) earlier letters both
dated December 15, 1996 -- all of which he signed as "Atty. Ashary M. Alauya" -- in his
Comment of June 5, 1996, he does not use the title but refers to himself as "DATU
ASHARY M. ALAUYA."
The Court referred the case to the Office of the Court Administrator for evaluation,
report and recommendation.[14]
The first accusation against Alauya is that in his aforesaid letters, he made
"malicious and libelous charges (against Alawi) with no solid grounds through manifest
ignorance and evident bad faith," resulting in "undue injury to (her) and blemishing her
honor and established reputation." In those letters, Alauya had written inter alia that:
1) Alawi obtained his consent to the contracts in question "by gross misrepresentation,
deceit, fraud, dishonesty and abuse of confidence;"
2) Alawi acted in bad faith and perpetrated ** illegal and unauthorized acts ** **
prejudicial to ** (his) rights and interests;"
3) Alawi was an "unscrupulous (and "swindling") sales agent" who had fooled him by
"deceit, fraud, misrepresentation, dishonesty and abuse of confidence;" and
4) Alawi had maliciously and fraudulently manipulated the contract with Villarosa & Co.,
and unlawfully secured and pursued the housing loan without ** (his) authority and
against ** (his) will," and "concealed the real facts **."
Alauya's defense essentially is that in making these statements, he was merely
acting in defense of his rights, and doing only what "is expected of any man unduly
prejudiced and injured," who had suffered "mental anguish, sleepless nights, wounded
feelings and untold financial suffering," considering that in six months, a total
of P26,028.60 had been deducted from his salary.[15]
The Code of Conduct and Ethical Standards for Public Officials and Employees (RA
6713) inter alia enunciates the State policy of promoting a high standard of ethics and
utmost responsibility in the public service. [16] Section 4 of the Code commands that
"(p)ublic officials and employees ** at all times respect the rights of others, and ** refrain
from doing acts contrary to law, good morals, good customs, public policy, public order,
public safety and public interest." [17] More than once has this Court emphasized that "the
conduct and behavior of every official and employee of an agency involved in the
administration of justice, from the presiding judge to the most junior clerk, should be

circumscribed with the heavy burden of responsibility. Their conduct must at all times be
characterized by, among others, strict propriety and decorum so as to earn and keep
the respect of the public for the judiciary." [18]
Now, it does not appear to the Court consistent with good morals, good customs or
public policy, or respect for the rights of others, to couch denunciations of acts believed
-- however sincerely -- to be deceitful, fraudulent or malicious, in excessively
intemperate. insulting or virulent language. Alauya is evidently convinced that he has a
right of action against Sophia Alawi. The law requires that he exercise that right with
propriety, without malice or vindictiveness, or undue harm to anyone; in a manner
consistent with good morals, good customs, public policy, public order, supra; or
otherwise stated, that he "act with justice, give everyone his due, and observe honesty
and good faith."[19] Righteous indignation, or vindication of right cannot justify resort to
vituperative language, or downright name-calling. As a member of the Shari'a Bar and
an officer of a Court, Alawi is subject to a standard of conduct more stringent than for
most other government workers. As a man of the law, he may not use language which is
abusive, offensive, scandalous, menacing, or otherwise improper.[20] As a judicial
employee, it is expected that he accord respect for the person and the rights of others at
all times, and that his every act and word should be characterized by prudence,
restraint, courtesy, dignity. His radical deviation from these salutary norms might
perhaps be mitigated, but cannot be excused, by his strongly held conviction that he
had been grievously wronged.
As regards Alauya's use of the title of "Attorney," this Court has already had
occasion to declare that persons who pass the Shari'a Bar are not full-fledged members
of the Philippine Bar, hence may only practice law before Shari'a courts. [21] While one
who has been admitted to the Shari'a Bar, and one who has been admitted to the
Philippine Bar, may both be considered "counsellors," in the sense that they give
counsel or advice in a professional capacity, only the latter is an "attorney." The title of
"attorney" is reserved to those who, having obtained the necessary degree in the study
of law and successfully taken the Bar Examinations, have been admitted to the
Integrated Bar of the Philippines and remain members thereof in good standing; and it is
they only who are authorized to practice law in this jurisdiction.
Alauya says he does not wish to use the title, "counsellor" or "counsellor-at-law,"
because in his region, there are pejorative connotations to the term, or it is confusingly
similar to that given to local legislators. The ratiocination, valid or not, is of no moment.
His disinclination to use the title of "counsellor" does not warrant his use of the title of
attorney.
Finally, respecting Alauya's alleged unauthorized use of the franking privilege, the
record contains no evidence adequately establishing the accusation.
WHEREFORE, respondent Ashari M. Alauya is hereby REPRIMANDED for the use
of excessively intemperate, insulting or virulent language, i.e., language unbecoming a
judicial officer, and for usurping the title of attorney; and he is warned that any similar or
other impropriety or misconduct in the future will be dealt with more severely.
SO ORDERED.
Davide, Jr., Melo, Francisco, and Panganiban, JJ., concur.

Ambaked, Jelvette LaneT.

PALE, 3-B
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRISCO HOLGADO, defendant-appellant.
Mauricio Carlos for appellant.
Assistant Solicitor General Manuel P. Barcelona and Solicitor Felix V. Makasiar for
appellee.
MORAN, C.J.:
Appellant Frisco Holgado was charged in the court of First Instance of Romblon with
slight illegal detention because according to the information, being a private person, he
did "feloniously and without justifiable motive, kidnap and detain one Artemia Fabreag in
the house of Antero Holgado for about eight hours thereby depriving said Artemia
Fabreag of her personal liberty." On may 8, 1948, the day set for the trial, the trial court
proceeded as follows:
Court:
Is this the case ready for trial?
Fiscal:
I am ready, your honor.

Court: to the accused.

Q. do you have an attorney or are you going to plead guilty? A. I have no lawyer and I
will plead guilty.
Court:
Arraign the accused.
Note:
Interpreter read the information to the accused in the local dialect after which he
was asked this question.
Q. What do you plead? A. I plead guilty, but I was instructed by one Mr. Ocampo.
Q. Who is that Mr. Ocampo, what is his complete name? A. Mr. Numeriano Ocampo.
The provincial fiscal is hereby ordered to investigate that man.
Fiscal:
I have investigated this case and found out that this Ocampo has nothing to do with
the case and I found no evidence against this Ocampo.
Court:
Sentenced reserved.
Two days later, or on May 10, 1948, the trial court rendered the following judgment:
[Criminal Case No. V-118]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRISCO HOLGADO defendantappellant.

SLIGHT ILLEGAL DETENTION

SENTENCE
The accused, Frisco Holgado, stands charged with the crime of kidnapping and
serious illegal detention in the following
INFORMATION
That on or about December 11, 1947, in the municipality of Concepcion,
Province of Romblon, Philippines and within the jurisdiction of this
Honorable Court, the said accused being a private individual, did then and
there wilfully, unlawfully and feloniously, and without justifiable motive,
kidnap and detain one Artemia Fabreag in the house of Antero Holgado for
about 8 hours thereby depriving said Artemia Fabreag of her personal
liberty.
Contrary to law.
This case is called for trial on May 8, 1948. Upon arraignment the accused
pleaded guilty to the information above described.

The offense committed by the accused is kidnapping and serious illegal detention
as defined by article 267 of the Revised Penal Code as amended by section 2 of
Republic Act No. 18 and punished by reclusion temporal in it minimum period to
death. Applying indeterminate sentence law the penalty shall be prision mayor in
its maximum degree to reclusion temporal in the medium degree as minimum, or
ten years (10) and one (1) day of prision mayor to twenty (20) years, with the
accessory penalties provided for by law, with costs. The accused is entitled to
one-half of his preventive imprisonment.
It must be noticed that in the caption of the case as it appears in the judgment above
quoted, the offense charged is named SLIGHT ILLEGAL DETENTION while in the body
of the judgment if is said that the accused "stands charged with the crime of kidnapping
and serious illegal detention." In the formation filed by the provincial fiscal it is said that
he "accuses Frisco Holgado of the crime of slight illegal detention." The facts alleged in
said information are not clear as to whether the offense is named therein or capital
offense of "kidnapping and serious illegal detention" as found by the trial judge in his
judgment. Since the accused-appellant pleaded guilty and no evidence appears to have
been presented by either party, the trial judge must have deduced the capital offense
from the facts pleaded in the information.
Under the circumstances, particularly the qualified plea given by the accused who was
unaided by counsel, it was not prudent, to say the least, for the trial court to render such
a serious judgment finding the accused guilty of a capital offense, and imposing upon
him such a heavy penalty as ten years and one day of prision mayor to twenty years,
without absolute any evidence to determine and clarify the true facts of the case.
The proceedings in the trial court are irregular from the beginning. It is expressly
provided in our rules of Court, Rule 112, section 3, that:
If the defendant appears without attorney, he must be informed by the court that
it is his right to have attorney being arraigned., and must be asked if he desires
the aid of attorney, the Court must assign attorney de oficio to defend him. A
reasonable time must be allowed for procuring attorney.
Under this provision, when a defendant appears without attorney, the court has four
important duties to comply with: 1 It must inform the defendant that it is his right to
have attorney before being arraigned; 2 After giving him such information the court
must ask him if he desires the aid of an attorney; 3 If he desires and is unable to
employ attorney, the court must assign attorney de oficio to defend him; and 4 If the
accused desires to procure an attorney of his own the court must grant him a
reasonable time therefor.
Not one of these duties had been complied with by the trial court. The record discloses
that said court did not inform the accused of his right to have an attorney nor did it ask
him if he desired the aid of one. The trial court failed to inquire whether or not the
accused was to employ an attorney, to grant him reasonable time to procure or assign
an attorney de oficio. The question asked by the court to the accused was "Do you have
an attorney or are you going to plead guilty?" Not only did such a question fail to inform
the accused that it was his right to have an attorney before arraignment, but, what is
worse, the question was so framed that it could have been construed by the accused as
a suggestion from the court that he plead guilt if he had no attorney. And this is a denial
of fair hearing in violation of the due process clause contained in our Constitution.

One of the great principles of justice guaranteed by our Constitution is that "no person
shall be held to answer for a criminal offense without due process of law", and that all
accused "shall enjoy the right to be heard by himself and counsel." In criminal cases
there can be no fair hearing unless the accused be given the 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 the law, particularly in the rules of procedure, and, without counsel, he may
be convicted not because he is guilty but because he does not know how to establish
his innocence. 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 if he so desires and he is
poor grant him a reasonable time to procure an attorney of his own.
It must be added, in the instant case, that the accused who was unaided by counsel
pleaded guilty but with the following qualification: "but I was instructed by one Mr.
Ocampo." The trial court failed to inquire as to the true import of this qualification. the
record does not show whether the supposed instructions was real and whether it had
reference to the commission of the offense or to the making of the plea guilty. No
investigation was opened by the court on this matter in the presence of the accused and
there is now no way of determining whether the supposed instruction is a good defense
or may vitiate the voluntariness of the confession. Apparently the court became satisfied
with the fiscal's information that he had investigated Mr. Ocampo and found that the
same had nothing to do with this case. Such attitude of the court was wrong for the
simple reason that a mere statement of the fiscal was not sufficient to overcome a
qualified plea of the accused. But above all, the court should have seen to it that the
accused be assisted by counsel specially because of the qualified plea given by him
and the seriousness of the offense found to be capital by the court.
The judgment appealed from is reversed and the case is remanded to the Court below
for a new arraignment and a new trial after the accused is apprised of his right to have
and to be assisted by counsel. So ordered.

Ambaked, Jelvette LaneT.

PALE, 3-B

CRISPINO FLORES, petitioner,

vs.
HON. G. JESUS B. RUIZ, Presiding Judge, Court of First Instance of Cagayan,
PROVINCIAL WARDEN of Cagayan and LEONARDO MANDAC, represented by his
Heirs, thru the Widow DOLORES VDA. DE MANDAC, respondents.
Eliseo M. Cruz for petitioner.
Laggui & Laggui for private respondents.

DE CASTRO, J:
This is a Petition for certiorari and/or Habeas Corpus filed by petitioner Crispin Flores on
October 24, 1972 after he has been allegedly arrested and detained illegally by Order of
the respondent Judge, dated June 20, 1972, finding him guilty of indirect contempt.
(Annex A, Petition, p.11, Rollo).
From the records of this case, it appears that petitioner was actually arrested on August
28, 1972 and has since been detained in the Provincial Jail of Cagayan until his release
by virtue of a bond of P500.00 which he was allowed to file by this Court in its
Resolution dated October 31, 1972 (p. 33, Rollo), which he must have filed as he had
precisely asked to be bailed, pending his appeal from the Order of the respondent judge
dated August 10, 1972. (Annex E to Petition, p. 24, Rollo). The reason for the delayed
arrest is that petitioner was given a period up to August 1, 1972 "to inform the court
whether or not he relinquishes his possession over the land in question."
The land in question was levied upon and sold on execution on November 28, 1978 to
satisfy the award of damages in favor of Leonardo Mandac, plaintiff in Civil Case No.
1616 of the Court of First Instance of Cagayan against petitioner and his father, Doroteo
Flores, as defendants and the losing parties in said case. They failed to redeem the
property sold to the heirs of Leonardo Mandac in the auction sale. Hence, the
respondent court ordered petitioner to place in possession the heirs of Leonardo
Mandac who had in the meantime died. For his refusal to vacate the land in favor of the
heirs of Mandac, contempt proceedings were instituted against petitioner on motion of
Atty. Antonio N. Laggui as counsel of the aforementioned heirs. As previously stated,
these contempt proceedings led to his arrest and detention.
Petitioner, however, questions the legality of the proceedings for not having been
assisted by counsel during the hearing of the motion for contempt, and for not having
been duly informed of the contempt charge by being furnished a copy of the motion, or

properly "arraigned" before trial. Thus, petitioner claims to have been deprived due
process of law which voided the proceedings against him as for lack of jurisdiction of the
court to inflict the penalty imposed on him, citing Santiago vs. Alikpala, L-25133,
September 28, 1968, 25 SCRA 356.
Further, petitioner contends that his act of not surrendering possession of his levied
property does not constitute contempt, citing the case of Faustino Lagrimas vs- JP of
Camiling, et al., L-14345, July 20, 1961, 2 SCRA 793, and Chinese Commercial
Property Co. vs. Martinez, et al., L-8565, November 30, 1962, 6 SCRA 851.
1. On the issue of whether petitioner was denied due process as he claims, both
respondent judge and private respondents deny the claim of petitioner, of having been
so denied, private respondents even quoting from the transcript of the stenographic
notes the following:
COURT: Is the defendant Crispin Flores in Court?
(Interpreter calls out the name of Crispin Flores, and answered that he is present).
( The Court addresses Crispin Flores).
Q. Who is going to represent you in this case?
A. I have a lawyer but he was not able to come.
Q. Did you notify him?
A. Yes, sir, but he was not able to come today.
Q. Are you willing to go into trial in this case even in the absence of your lawyer?
A. Yes, sir.
Q. Do you need the assistance of any lawyer?
A. No more, anyway I can answer.
(pp. 1 and 2, tsn Barias June 19, 1972).
The veracity of the alleged proceedings as indicated above is denied by petitioner,
alleging that no such proceedings took place, and that, in any event, the transcript was
not signed by the stenographer. What happened according to him, is that I when
respondent judge had learned that he was without counsel, he told him (petitioner) to
deliver possession of the premises to the private respondents, and for this purpose
gave him ten (10) days to carry out that mandate. In spite of the plan of petitioner that
the hearing on that date be postponed so that his counsel of record could appear for
him or that a new counsel would be hired to appear in his behalf, the respondent judge,
however, demurred, and with the assistance of a certain Atty. Joshua Pastores,
petitioner was made to sign an understanding to deliver up the premises within the
period indicated by the judge on pain of being imprisoned." (Petitioner's Memorandum,
pp. 79-80, Rollo).
The right of the accused to counsel in criminal proceedings has never been considered
subject to waiver. The practice has always been for the trial court to provide the

accused with a counsel de officio, if he has no counsel of his own choice, or cannot
afford one. This is because
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 the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not because he is
guilty but because he does not know how to establish his innocence and
this can happen more easily to persons who are ignorant or uneducated. It
is for this reason that his 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. (People vs.
Holgado, 85 Phil. 752; See also Aguador vs. Enerio 37 SCRA 140).
On the basis of the aforequoted ruling, it cannot be disputed that the respondent court
failed in its duty designed to satisfy the constitutional right of an accused to counsel.
Petitioner, as the respondent in the contempt charge, a proceedings that partake of the
nature of a criminal prosecution, was thus denied due process. This is more so as
petitioner does not appear to have been duly notified of the contempt charge, nor was
properly "arraigned," since he was not assisted by counsel during the hearing (Santiago
vs. Alikpala, supra). Admittedly with a counsel of record, petitioner could not have
willingly submitted to go to trial when his counsel failed to appear. It is certainly much
easier to believe, that, as petitioner alleges, he asked for postponement, because of the
absence of his counsel, but that the respondent judge denied the plea, a fact not
expressly traversed in the respondent judge's comment (p. 56, Rollo). Neither has he
denied the allegation in the petition that there was a denial of petitioner's right to due
process for not having been duly informed of the contempt charge, nor was his counsel
furnished a copy thereof, as he is entitled to one as a matter of right and as a matter-of
duty of the court. All that respondent judge said in his comment is that "defendant Flores
has been granted his day in court to defend himself from the charges presented by
reason of his contumacious acts." (p. 56, Rollo).
We are, therefore, constrained to hold that the proceedings on the contempt charge has
been vitiated by lack of due process, entitling petitioner to the writ of habeas corpus he
seeks.
Habeas corpus is a high prerogative writ. It is traditionally considered as
an exceptional remedy to release a person whose liberty is illegally
restrained such as when the accused's constitutional rights are
disregarded. Such defects results in the absence or loss of 'jurisdiction
and therefore invalidates the trial and the consequent conviction of the
accused whose fundamental right was violated. That void judgment of
conviction may be challenged by collateral attack, which precisely is the
function of habeas corpus. This writ may issue even if another remedy
which is less effective may be availed of by the defendant. In Harden vs.
The Director of Prisons (81:741/1948/), Justice Tuason, speaking for the
Court, explicitly announced that "deprivation of any fundamental or
constitutional rights" justify a proceeding for habeas corpus, on the ground
of lack of jurisdiction. Abriol vs. Homeres (84 Phil. 525) is even more

categorical. In that case, the action of a lower court, denying the accused
the opportunity to present proof for his defense, his motion for dismissal
failing, was held by this Court as a deprivation of his right to due process.
As was made clear by the opinion of Justice Ozaeta: 'No court of justice
under our system of government has the power to deprive him of that
right. If the accused does not waive his right to be heard but on the
contrary invokes the right, and the court denies it to him, that court no
longer has jurisdiction to proceed; it has no power to sentence the
accused without hearing him in his defense; and the sentence thus
pronounced is void and may be conaterany attacked in a habeas corpus
proceeding. (Santiago vs. Alikpala, supra.)
2. We also find as not clearly established by the pleadings and annexes, the legal basis
for the pronouncement of guilt for contempt against petitioner. What would constitute
contempt is the re-entry of the defeated party into the premises after possession thereof
has been delivered to the prevailing party by the sheriff in enforcement of the writ of
execution (Rom vs. Cobadora, L-24764, July 17, 1969, 28 SCRA 758, 763; Chinese
Commercial Property Co. vs. Martinez, et. al., L-18565, November 30, 1962, 6 SCRA
848; Faustino Lagrimas vs. JP of Camiling, et. al., L-14345, July 20,1961, 2 SCRA 793).
Thus, in the order of the respondent judge, dated September 28, 1972, (Annex G to
Petition, pp. 30-31, Rollo), it was stated that:
By virtue of the writ of execution of the decision in this case the plaintiffs
were placed in possession over the parcel described in paragraph 3 of the
complaint. Sometime in March, 1969, defendants invaded the land and
since then, they refused to vacate same. Plaintiffs, on July 2, 1969, filed
the first motion for contempt against the defendants.
The other properties of defendants were levied, foreclosed and sold to
defendants on November 28, 1968 in a public auction to satisfy the
damages awarded in the same judgment. The defendants failed to
redeem the bidded properties within the one year from the registration of
the certificate of sale of the land, and yet defendants refused to vacate
same land for which plaintiffs filed the second motion for contempt on
December 17, 1971.
The Court did not pass upon the first motion for contempt but gave due
course to the second motion for contempt.
It is altogether clear that with respect to the parcel described in paragraph 3 of the
complaint, the Mandacs were placed in possession thereof but subsequently, the
petitioner herein invaded the land and had since refused to leave it. With respect,
however, to the land in question, petitioner never vacated the same; there was,
therefore, no re-entry to speak of. According to petitioner, the sheriff who tried to enforce
the writ of possession never succeeded in locating the specific land to be delivered to
the Mandacs to be able to claim having placed the latter in possession of the land. (pp.
77- 78, Rollo). Where the defeated party asked to vacate the premises by the judgment
of the court, refuses to vacate the same on being ordered by the sheriff enforcing a writ
of execution or possession, no contempt is committed, as held in Goyena de Quizon vs.
Philippine National Bank, et al., G. R. No. L-2851, January 31, 1950, cited in Chinese
Commercial Property Co. vs. Martinez, et al., supra. In the case ofRom vs.
Cobadora, L-24764, July 17, 1969, 28 SCRA 758, Justice Teehankee, speaking for the
court said:

The order of execution issued by the lower court is address solely and
exclusively to the sheriff, who under the above-cited rules is called upon to
oust the defeated party from the property and make the delivery or
restitution by placing the prevailing party in possession of the property,
and mere refusal or unwillingness on the part of the defeated party to
relinquish the property, would not constitute contempt.
3. There is, likewise, an allegation in the petition that the Motion for Contempt was filed
by the counsel of Leonardo Mandac after the latter's death, and therefore, the motion
was unauthorized and without legal standing. From what has been said above that
petitioner is not guilty of contempt, the challenge against the legality of the motion for
contempt need not be inquired into. In fairness, however, to private respondent from his
allegation in his Answer that
7. Atty. Pedro N. Laggui had authority to file the motion for contempt
against the Petitioner on June 30, 1969; at that time, Leonardo Mandac
was still alive. Atty. Antonio N. Laggui likewise had authority to file the
motion for contempt against the Petitioner on December 17, 1971 no
longer as counsel for the deceased Leonardo Mandac for at that time
he was already dead but as counsel for his wife and children in whose
favor the corresponding deed of sale of the parcels of land sold at auction
on November 28, 1968, was executed by the Sheriff on February 12,
1970, pursuant to the Order dated January 21, 1970. (Answer, p. 69,
Rollo).
We have no hesitation to say that the Motion for Contempt has been filed with proper
authority.
For all the foregoing, the present petition should be, as it is, hereby granted, thereby
setting aside the order of the respondent judge finding petitioner guilty of indirect
contempt. No pronouncement as to costs.
SO ORDERED.