G.R. No. 89591-96 August 13, 1990 Nagales alias "Reming".
Nagales alias "Reming". All the others were at large, including herein private respondent
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HON. BONIFACIO SANZ MACEDA, Presiding Judge of Branch 12, Regional Trial Court of
Antique, and AVELINO T. JAVELLANA, respondents.
The Solicitor General for petitioner.
PADILLA, J.:
In the morning of 11 February 1986, the late ex-Governor of Antique, Evelio Javier, was
gunned down in the plaza of San Jose, Antique.
Immediately thereafter, the authorities conducted an investigation, and as a result thereof, a
complaint against John Paloy and Vicente Vegafria was filed with the Office of the Provincial
Prosecutor.
During the preliminary investigation, private respondent Avelino T. Javellana appeared as
counsel for John Paloy and Vicente Vegafria, until Federico Carluto, Jr., executed an
affidavit, 1 dated 16 June 1986, and Evelyn Magare and Fritz Xavier their sworn
statements, 2 dated 19 February 1986 and 7 March 1986, respectively, implicating private
respondent in the killing of the late Evelio Javier.
On 29 October 1986, the then Senior State Prosecutor Tirso D.C. Velasco, now RTC Judge of
Quezon City, filed with the RTC of Antique, six (6) separate informations, 3 all dated 13
October 1986, charging private respondent Avelino T. Javellana together with John Paloy,
Vicente Vegafria, Eduardo Iran alias "Boy Muslim", alias "Muklo" Rudolfo
Pacificador Alias "Ding", Arturo F. Pacificador and several John Does, with the crime of
murder, frustrated murder and for four (4) counts of attempted murder. 4
Meanwhile, on 23 September 1986 and 27 October 1986, Romeo Nagales and Jose Delumen
executed their respective sworn statements, 5 admitting their participation in the kiling of
Evelio Javier, and implicating other persons in the commission of the crime.
On the basis of their sworn statements, the prosecution, through Senior State Prosecutor
Aurelio C. Trampe, amended the aforesaid informations by including therein the following
persons as accused, namely: Ramon Hortillano alias "Ramie", Henry Salaber alias "Henry",
Eleazar Edemne alias "Toto", Arleen Limoso alias "Arleen", Romeo Nagales alias "Reming",
Rolando C. Bernardino alias Lando Jose De Lumen alias "Marlon", Jose
Delumen alias "Winfield", Oscar
Tianzon alias "Oca", alias "Nono", alias Akong alias "Nonoy", alias "Tatang"
and alias "Dolfo". 6
On motion of Senior State Prosecutor Aurelio C. Trampe, the said criminal cases were
consolidated in Branch 12 of the RTC of Antique, presided over by respondent Judge.
Of the nineteen (19) accused, only six (6) had been apprehended and/or surrendered,
namely: John Paloy, Vicente Vegafria Rolando Bernardino, Jesus Garcia y
Amorsolo alias "Nono Picoy" Jose Delumen alias "Winfield" and Romeo
Avelino Javellana. 7 Hence, trial proceeded only as against the said six (6) accused.
On 9 May 1989, the prosecution moved to discharge the accused Jose Delumen and Romeo
Nagales, claiming that their testimonies were absolutely necessary against accused Rolando
Bernardino as well as the other accused, including private respondent who was then at-
large.
On 11 May 1989, the court a quo granted the motion to discharge Romeo Nagales but
denied it as regards Jose Delumen, the latter having admitted a prior conviction for the crime
of robbery.
However, despite the discharge of Rome Nagales, the prosecution rested its case without
presenting him his state witness and reserved its right to present him as a witness against
the other accused who were then at-large.
On 12 May 1989, private respondent was arrested by the Constabulary Security Group (CSG)
in Parañaque, Metro Manila. On 15 May 1989, the Integrated Bar of the Philippines (IBP),
Iloilo Chapter, through its President, Atty. J.T. Barrera, enterred its appearance as counsel for
private respondent with a motion that the IBP, Iloilo Chapter be allowed to as assume
custody of the private respondent as his jailer and/or in the alternative, to confine him at the
Military Stockade at Camp Delgado and/or at the Iloilo Provincial Jail. 8
When private respondent was brought before the trial court on 7 June 1989, Atty. J.T. Barrera
manifested and moved that his motion of 15 May 1989 be heard. During the hearing,
Assistant Provincial Prosecutor John Turalba opposed the motion. The issue was heatedly
argued by the prosecution and the defense. Whereupon, private respondent pleaded that he
be allowed to approach the bench together with all the counsel, which respondent Judge
reluctantly granted. Private respondent informed the court that there exists a real and grave
danger to his life if he were to be confined in the Antique Provincial Jail. He then narrated an
incident when he, as the then counsel for John Paloy and Vicente Vegafria prior to his
inclusion as one of the respondents, was refused the right to visit and confer with his clients
by a drunk jail guard at the Antique Provincial Jail; that the said guard was toying with his
armalite rifle while standing at the gate of the provincial jail and did not allow him to enter;
that said guard aimed and pointed his armalite rifle twice at him; and that because of his
complaint, the guard was suspended but has long been back on duty of the provincial jail.
After hearing the narration, Assistant Provincial Prosecutor John Turalba withdrew his
objection. 9
Hence, on the same date, 7 June 1989, respondent Judge issued an order, 10 the pertinent
part of which reads:
. . . , without jurisdiction on the part of Prosecutor John Turalba, accused Javellana is
hereby ordered confined at PC, Stockade, Bugante Point San Jose, Antique in the
custody of the PC/INP Provincial Commander who is directed to take charge of the
custody of said accused and to bring him back to court whenever required.
On 2 August 1989, the Provincial Commander, Col. Teodulo Abayata wrote respondent
Judge:
I am in receipt of instruction from CPC to turn over Atty. Avelino Javellana to the
Provincial Jail effective immediately and for me to give feedback NLT today 2 August
1989.
Since his custody under the Provincial Commander was through the order of that
Honorable Court, request that another order be issued for me to be able to comply
(sic) the instructions from my superior officers. 11
On the same date, 2 August 1989, respondent Judge issued an order 12 granting the request
of Col. Abayata, and ordered the private respondent to be confined as a detention prisoner
at the Binirayan Rehabilitation Center, San Jose, Antique, subject to the conditions set forth
therein.
Upon receipt of the order on the same day, private respondent filed an urgent ex-parte
motion for reconsideration, 13alleging that the Binirayan Rehabilitation Center, aside from
being a little bit far and unsafe, has conditions which may not work well for his health; that
he underwent retrograde operation less than a year ago and up to the present he is still
taking medication for maintenance; that he has a history of heart treatment and very often
he takes maintenance pills and he is confronted by his unstable blood presure; that the
location of the rehabilitation center and the absence of facilities there may cause adverse
effects on his health condition; and praying that he be confined in the Provincial Jail of Iloilo
where he can be nearer to better hospital facilities.
When the aforesaid motion for private respondent was called for hearing in the afternoon of
2 August 1989, respondent Judge required the presence of Assistant Provincial Prosecutor
John Turalba. The latter appeared and reiterated the earlier objection of the Senior State
Prosecutor to the confinement of private respondent in any place other than the Provincial
Jail of Antique.
After the hearing, respondent Judge issued an order, 14 reconsidering and setting aside the
earlier order, and directed that —
. . . the accused, should in the meantime, be committed to the Angel Salazar
Memorial Hospital and subjected to a physical check-up at the expense of the
accused Javellana. The head of the said hospital is directed to submit his report
soonest on the physical condition of accused Javellana.
Meantime, while the check-up is being undertaken, the Station Commander of San
Jose, Antique is directed to take custody and provide adequate security for accused
Javellana in order to prevent his escape and to continue such custody until further
orders from the court. . . .
On 3 August 1989, the head of the hospital issued a certification on the result of the physical
check-up conducted on private respondent, thus:
As per order of your Honor, dated August 2, 1989, Atty. Avelino T. Javellana was
examined by Dr. Felipe Rosendo Muzones and his ECG examination showed that
everything is within normal limits. However, Dr. Muzones contends that the same is
not the only determinant factor as far as the condition of the heart is concerned.
Hence, he recommends that blood chemistry examination is necessary. We are sad
to inform your Honor that we do not have necessary chemicals for this type of
examination at
present. 15
In view of the aforesaid certification, the private respondent filed on the same day an Urgent
Ex-Parte Motion, 16praying that he be allowed further medical examination at the Iloilo
Mission Hospital in Iloilo City under at least two (2) police escorts. When the motion was
called in open court in the afternoon, the private respondent and the Assistant Provincial
Prosecutor appeared, and both argued for and against the motion. Thereafter, the
respondent Judge issued an order, 17 the pertinent part of which reads, as follows:
It is the considered view of the Court that whether the blood chemistry examination
is necessary or not, the fact still remains that the examination conducted on the
heart of movant is incomplete and the court will not leave to chance the condition
of the heart of movant who stands charged of a serious crime in these cases. The
Court believes that the best interest of justice may be served should the accused be
given time to be subjected to a more complete and exhaustive physical examination
particularly his heart condition, especially considering the information given in open
court by movant that his brother died at a tender age of thirty-three (33) of coronary
thrombosis and their family has a history of heart ailment and according to specialist
doctor, movant himself is prone to coronary thrombosis.
xxx xxx xxx
WHEREFORE, in view of all the foregoing, the Station Commander of San Jose,
Antique is hereby directed to assign two (2) guards to whom custody of movant
Javellana is entrusted by the Court to escort the movant Avelino Javellana to Iloilo
Mission Hospital, Iloilo City for a complete medical check-up, particularly on the
heart of Mr. Javellana. . . .
However, before private respondent and his two (2) police escorts could leave for Iloilo City,
P/Col. Magsinpoc, Station Commander of San Jose, Antique, verbally conveyed to
respondent Judge an "unforseen emergency" necessitating the "response of all personnel of
his Command" and requesting authority to recall the police escorts. In view thereof,
respondent Judge was constrained to issue on the same day, 3 August 1989, another
order, 18granting the request of the Station Commander, and directed the Provincial
Probation Officer of Antique to take custody of private respondent and to escort him to Iloilo
City for medical check-up and bring him back to court not later than 8:30 A.M. on Monday, 7
August 1989. Thus, the Provincial Probation Officer brought the private respondent to the
Iloilo Mission Hospital and left him there for a 3-day medical check-up, and thereafter
brought him back to court at 8:30 o'clock in the morning of 7 August 1989.
When the cases were called in the morning of 7 August 1989, Attys. Amelia K. del Rosario,
Arturo Alinio and J.T. Barrera entered their appearance as counsel for private respondent,
and argued that the custody of private respondent be entrusted to the IBP, Iloilo Chapter,
headed by Atty. J.T. Barrera. However, Senior State Prosecutor Aurelio C. Trampe moved that
the resolution of the incident be held in abeyance until the hearing, in the afternoon.
On the other hand, Atty. Jose A. Alegario entered his appearance as counsel for the then
recently arrested accused Oscar Tianzon, who manifested that his client was ready for
arraignment. Accordingly, the said accused was arraigned. He pleaded "not guilty."
Thereafter, the respondent Judge issued an order, 19 terminating the custody of the
Provincial Probation Officer, and, in the meantime, gave the custody of private respondent to
his lawyers, as officers of the court, ordering the confinement of accused Oscar Tianzon with
the Antique Provincial Jail Warden and setting the continuation of the hearing to 8 August
1989.
After the hearing in the afternoon, the respondent Judge issued another order, 20 deputizing
private respondent's lawyers as deputies of the court and ordered the confinement of
private respondent at the San Jose residence of Atty. Deogracias del Rosario, who happened
to be the Clerk of Court of the RTC of Antique.
On 8 August 1989, respondent Judge issued an order, 21 terminating the deputization of
private respondent's lawyers and ordered them to turn over the custody of private
respondent to the Clerk of Court and Ex-OficioProvincial Sheriff of the RTC of Antique, Atty.
Deogracias del Rosario, directing the latter to hold and detain private respondent in his
residence at San Jose, Antique and not to allow him liberty to roam around but to hold him
as a detention prisoner thereat.
Meanwhile, on 21 June 1989, Atty. J.T. Barrera filed a motion for admission to bail on behalf
of private respondent. 22 On 4 July 1989, Senior State Prosecutor Aurelio Trampe filed his
opposition 23 thereto, alleging that private respondent was charged with the crime of
murder, frustrated murder and attempted murders and that the evidence of guilt is strong;
hence, he is not entitled to bail as a matter of right.
On 26 June 1989, private respondent was arraigned, and thereafter, private respondent's
petition for bail was set for hearing on 7, 11 and 28 August 1989 to 1 September 1989, as
agreed upon by the prosecution and the
defense. 24
On 7 August 1989, Senior State Prosecutor Aurelio C. Trampe filed a motion 25 dated 3
August 1989 to discharge accused Oscar Tianzon to be utilized as a state witness, alleging
that there is an absolute necessity for his testimony against all the accused; that there is no
other direct evidence available for the proper prosecution of the offenses except the
testimony of said accused, which can be substantially corroborated in its material points by
other evidence; that the accused Tianzon does not appear to be the most guilty among the
accused, as he acted merely as a lookout and did not actually participate in the assassination
of the deceased Evelio Javier, and that he has not been previously convicted of any offense
involving moral turpitude. The hearing of the motion was set on 9 August 1989 at 2:00
o'clock in the afternoon.
The scheduled hearing on the aforesaid motion of the prosecution was, however, cancelled
and the hearing thereof was reset to 23 August 1989.
At the hearing on 23 August 1989, the prosecution adduced its evidence in support of the
motion; however, respondent Judge deferred the resolution of the motion. Thereupon, the
prosecution moved that the presentation of its evidence in opposition to private
respondent's petition for bail, which was set for hearing on 28 August 1989 and 1 September
1989, be likewise deferred on the ground that accused Oscar Tianzon is a material witness
against private respondent and that his testimony is necessary for the purpose of
determining private respondent's qualification for bail, i.e., whether the evidence of guilt is
strong.
On 28 August 1989, petitioner filed the instant petition for CERTIORARI, to annul and set
aside the orders dated 3, 7 and 8 August 1989, claiming that said orders were issued with
grave abuse of discretion and PROHIBITION to enjoin the respondent Judge from hearing
private respondent's petition for bail until he has resolved the motion to discharge accused
Oscar Tianzon, and praying that a writ of preliminary injunction and/or temporary
restraining order be issued.
As prayed for, the Court issued on 31 August 1989 a temporary restraining order, 26 ordering
the respondent Judge to cease and desist from continuing the hearing on respondent-
accused Avelino Javellana's petition for bail until after the respondent Judge has resolved the
motion to discharge Oscar Tianzon as state witness.
When private respondent's petition for bail was heard on 28 August 1989, respondent Judge
was apprised of the filing of the petition before this Court; hence, the hearing was reset to 1
September 1989.
At the afternoon hearing on 1 September 1989, the prosecution furnished respondent Judge
and the defense, copies of the restraining order issued by this Court. The respondent Judge,
however, advised the parties that the motion to discharge accused Oscar Tianzon has
already been resolved in the morning and that copies of the resolution would be available at
any time then. 27 Thereafter, respondent Judge released the resolution, 28 dated 1 September
1989, denying the prosecution's motion to discharge accused Oscar Tianzon to be utilized as
a state witness. He ruled, among others, as follows:
The court searched the records for evidence to corroborate the material points in
the aforesaid testimony of Tianzon against Javellana but found none to corroborate
his statement pointing to Javellana as the gun supplier and the plotter. Neither has
the prosecution presented evidence during the hearing to determine Tianzon's
qualification tending to corroborate the implication of Javellana nor did the
prosecution indicate to the court where such corroboration can be found by the
court.
 On the contrary, the court notes a clash of the statements of Tianzon in the question
and answer No. 45 of his affidavit with the testimonies of the previous witnesses for
the prosecution because question and answer No. 45 specifies the names of the
passengers of the two (2) nissan jeeps but the same does not mention either
accused John Paloy or Vicente Vegafria as one of the passengers of the same jeeps
while the testimonies of previous witnesses for the prosecution proclaim that they
(Paloy and Vegafria) were among the passengers of the such jeeps who alighted
therefrom at the Plaza where the late Governor Evelio Javier was killed.
Not only that. The court finds no absolute necessity to date of Tianzon's testimony
because the court earlier on May 11, 1989 dis charged accused Romeo Nagales on
motion of the Prosecutor to be utilized as a state witness. But, instead of utilizing
Nagales as a state witness, as promised by the Prosecutor, the prosecution did not
present him up to this writing but proceeded to formally offer its evidence and
thereafter rested its case.
What is more, when the prosecution asked for the discharge of state witness
Nagales, it assured the court that:
That in the instant cases, there is an absolute necessity for the testimonies
of accused Jose Delumen and Romeo Nagales as against accused Arturo
Pacificador, Rodolfo Pacificador, Avelino Javellana, Eduardo Iran, Ramon
Hortillano, Henry Salaver, Arlene Limoso, Rolando Bernardino, Oscar
Tianzon, Eleazar Edemne alias "Nono", Alias Akong
and Alias Tatang, Alias Dolfo, as shown in their sworn statements, copies
hereto attached as Annexes "A" and "B" and form part hereof;
That there is no other direct evidence available for the proper prosecution
of the offenses committed by the accused named in the next preceding
paragraph except the testimonies of said Delumen and Nagales which can be
substantially corroborated in its material points by other evidence.
But neither did the prosecutor use state witness Nagales against accused
Rolando Bernardino nor did the prosecution use his testimony against Jose
Delumen and Jesus Garcia. Consequently, there being no evidence against
accused Delumen and Garcia, on motion of their respective counsel, the
cases against these two (2) accused were dismissed.
These situation disturbs, let alone alarms, the court in the conduct of the
prosecution in these cases. The failure of the prosecution to adduce any evidence
against Delumen and Garcia appears to lend credence to the charge of accused
Javellana that the prosecution in these cases has adopted a "scandalous dual theory
of the prosecution."
Upon receipt of the resolution, the prosecution through Senior State Prosecutor Aurelio C.
Trampe, immediately filed a motion to inhibit 29 the respondent Judge, dated 24 August
1989, on the ground of manifest partiality to private respondent, and set it for hearing on 16
October 1989. Thereupon, the prosecution moved to defer the presentation of its evidence
in opposition to private respondent's petition for bail. Despite the opposition of the
prosecution, the respondent Judge reset the hearing on 14, 15 September 1989 to 4, 5 and 6
October 1989.
Afterwards, the prosecution filed a motion for reconsideration 30 of the order of 1 September
1989 which denied the prosecution's motion to discharge accused Oscar Tianzon.
On 4 September 1989, the Senior State Prosecutor also filed a motion 31 to reset the hearings
on 14, 15 September 1989 and 4, 5, 6 October 1989 on the petition for bail, on the grounds
that the motion to inhibit should first be resolved and also because of the pendency of the
motion for reconsideration of the order of 1 September 1989.
At the hearing on 14 September 1989, only Assistant Provincial Prosecutor John Turalba
appeared for the prosecution. He manifested that he was appearing only to reiterate the
Senior State Prosecutor's motion for deferment of the scheduled hearings on private
respondent's petition for bail. Private respondent opposed the motion. The respondent
Judge denied the motion, and directed the prosecution to present its evidence in opposition
to the private respondent's petition for bail. The Assistant Provincial Prosecutor moved for
reconsideration, claiming that his position is subservient to that of the Senior State
Prosecutor who is the duly designated principal prosecutor and as a matter of conviction, he
cannot proceed with the trial as well as with the subsequent trials which were covered by
the motion of 4 September 1989, and that, moreover, to proceed would render moot and
academic the petition for certiorari before this Court. Respondent Judge denied the motion
for reconsideration, and, again, directed the prosecution to present its evidence. At this
juncture, the Assistant Provincial Prosecutor manifested that he was not participating in the
proceedings and begged to be allowed to leave the courtroom, which the respondent Judge
refused.
Nevertheless, Assistant Provincial Prosecutor John Turalba walked out and, while walking
towards the door, respondent Judge ordered the Sheriff to arrest him. Thereafter,
respondent Judge issued an order finding Assistant Provincial Prosecutor John Turalba in
contempt of court; declaring the prosecution to have waived its right to present evidence in
opposition to private respondent's petition for bail; and considering the said petition for bail
submitted for resolution. 32 The respondent Judge imposed upon the Assistant Provincial
Prosecutor the penalty of ten (10) days imprisonment. 33
Hence, the petitioner filed with this Court a Supplemental Petition to annul and set aside the
orders of 1 September 1989 as well as the order of 14 September 1989; and to inhibit
respondent Judge from further taking cognizance of Criminal Cases Nos. 3350 to 3355; and
praying that a writ of preliminary mandatory injunction be issued directing respondent
Judge to promptly order the release of Assistant Provincial Prosecutor John Turalba from
custody on the cognizance of the Provincial Prosecutor.
As prayed for, the Court issued on 22 September 1989 a writ of preliminary mandatory
injunction. 34 However, when the respondent Judge received it on 26 September 1989,
Assistant Provincial Prosecutor John Turalba had already been released on 25 September
1989 having served his sentence.
Petitioner contends that the respondent Judge committed a grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the following orders, to wit:
(a) the order of 3 August 1989, placing custody of private respondent with the Antique
Provincial Probation Officer;
(b) the order of 7 August 1989, transferring the custody of private respondent to his own
lawyers;
(c) the Order of 8 August 1989, entrusting the custody of private respondent with the Clerk
of Court and ex-oficioProvincial Sheriff, Deogracias del Rosario; and
(d) the Order of 1 September 1989, which denied the prosecution's motion to discharge
Oscar Tianzon to be utilized as a state witness.
Petitioner further contends that respondent Judge committed a grave abuse of discretion
amounting to lack or excess of jurisdiction when he insisted on continuously hearing private
respondent's petition for bail and in ordering the arrest and commitment of Assistant
Provincial Prosecutor John Turalba in the Provincial Jail.
It has been repeatedly held that there is grave abuse of discretion justifying the issuance of a
writ of certiorari where there is a capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction; where the power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice, or personal hostility amounting to an evasion of
positive duty or to a virtual refusal to perform the duty enjoined, or to act at all in
contemplation of law. 35
In claiming that respondent Judge committed grave abuse of discretion in issuing the orders
of 3 August 1989, 7 August 1989 and 8 August 1989, petitioner argues that there was no
compelling reason for the respondent Judge to order, with undue haste, the medical "check
up" of private respondent at the Iloilo Mission Center notwithstanding the absence of any
police escort or other law enforcer to ensure that private respondent would not take flight
as he had previously done; that while all the other accused were confined in the Provincial
Jail of Antique, the respondent Judge merely "entrusted" the custody of private respondent
to his lawyers, and then to the Clerk of Court of the RTC of Antique, who is the son of one of
private respondent's lawyers; and that respondent Judge has not advanced a valid and legal
rationale for the "accommodations" afforded private respondent who, in law, occupies no
better position and no preferential rights over those of his co-accused.
The respondent Judge, however, has, to our mind, sufficiently explained in the order of 7
August 1989 the reasons behind the issuance of the aforesaid orders. He said:
The Court is aware of certain reasons why accused Javellana should not be placed in
the Provincial Jail. This was the subject of a discussion in open court before the
Presiding Judge of this court between the lawyers of Javellana and Javellana, himself
and Asst. Provincial Prosecutor John I-C. Turalba who, after hearing the particular
reason given by Javellana withdrew his opposition to the placing of Javellana other
than in the Provincial Jail of Antique and acceded that custody of Javellana be placed
at the hands of the Provincial Commander of Antique.
Recently, particulary on August 2, 1989 as well as on August 3, 1989, the court had
difficulty in securing the safety of accused Javellana. The court was left with no other
choice but to entrust his custody to the Provincial Probation Officer to escort him to
Iloilo City for a medical check-up. It is the perception of the court that there are
movements going ground, by whom is unknown yet to the court, to compel the
incarceration of accused Javellana in the Provincial Jail. The court abhors this
situation and the court will not be intimidated by anyone. It is the perception of this
court that even its lawful orders have somehow been subverted. The court's
perception of the circumstances presently obtaining on the custody and place of
detention of Javellana is a hot agenda and of grave importance, particularly his
safety and well being during detention in order that the court can try him on the
charges against him.
After serious deliberation, it is the considered view of the court that his detention be
placed somewhere else. The court hereby appoints Attys. Del Rosario, Barrera and
Alinio as deputies of the court and as such to take custody of accused Javellana
meantime that the motion to fix bail is going on and for them to bring the accused
to court whenever his presence is needed.
As earlier noted, the court perceives a movement to compel detention of the
accused in the Provincial Jail of Antique. This disturbs the court. This even lends
credence to the information by Javellana that there is indeed danger to his life if he
is placed in the Provincial Jail of Antique. This perception of the court is premised on
what appears to be a subversion of the order of the court placing custody of accused
Javellana with the Provincial Commander of Antique. The court, however, allowed,
on motion of the Provincial Commander, that Javellana be transferred to the
Binirayan Rehabilitation Center. But, on motion of Javellana for reasons of health, as
the same center is too far away and no adequate (sic) transport facilities at certain
time of the day and night are available to convey accused should an emergency
occur, accused was ordered confined at the Angel Salazar Memorial Hospital in San
Jose, Antique for check-up. Because of the incomplete results of the examination,
order was issued for his complete check-up in a hospital in Iloilo. The court ordered
the Station Commander of San Jose, Antique to provide police escorts and security
to prevent escape of accused in conducting check-up. Before the accused and his
escorts could depart, on August 3, 1989 for Iloilo City, the INP Station Commander of
San Jose begged the Presiding Judge of this Court to allow him to recall the security
personnel he has assigned and ordered to conduct accused Javellana to Iloilo City. It
left the court with no choice and no enforcers. The court, however, had to be
assured on the physical condition of accused Javellana that he will be able to face
trial against him. Accordingly, the court ordered the Provincial Probation Officer, to
 whom the custody of accused Javellana was entrusted, to escort the latter to Iloilo
City for the medical check-up. The Probation Officer earlier this morning manifested
that there was opportunity for accused Javellana to escape but despite such
opportunity he came back to court today to face the trial against him. This, to the
mind of the court is to be considered in his favor.
The aforesaid movements directed to compel the court to place Javellana in the
Provincial Jail, is (sic) to the mind of the court, as (sic) indication that should (sic) be
place there, something may happen to him and this court will not allow that thing to
happen. And as it is the considered view of the court that justice maybe better
served to deputize, as the lawyers of accused Javellana have been deputized, as
deputies of the court. As such they are now drawn from the status of private
individuals but are now the deputies of the court. In the matter of facilities, accused
Javellana is to be confined at the San Jose residence of Atty. Deogracias Del Rosario,
the son of Atty. Amelia del Rosario who happens to be the Clerk of Court of the
Regional Trial Court of Antique.
There may be truth to the Prosecutor's contention that there will be nothing to
prevent the other accused from following suit in asking that their custody likewise
(sic) be transferred to their respective lawyers.
But, such is only to request. The grant or denial thereof is a matter altogether
different.
In the present incident it is the findings (sic) of the court that indeed the life of
Javellana will be imperilled if confined elsewhere other than the place above
directed.
Considering the foregoing, the Court finds and so holds that respondent Judge did not
commit grave abuse of discretion, i.e., that he did not act "arbitrarily", "capriciously" or
"despotically" amounting to lack or excess of jurisdiction in issuing the questioned orders of
3, 7 and 8 August 1989.
Coming now to the 1 September 1989 order of respondent Judge, denying the prosecution's
motion to discharge accused Oscar Tianzon, the Court reiterates the rule that, for a writ
of certiorari to issue, it must not only be shown that the board, tribunal or officer acted
without jurisdiction, or with grave abuse of discretion, but also that there is no appeal or
other plain, speedy and adequate remedy in the ordinary course of law. 36 Thus, before filing
a petition for certiorari in a higher court, the attention of the lower court should generally be
first called to its supposed error and its correction should be sought. The reason for the rule
is that issues which the lower courts are bound to decide should not summarily be taken
from them and submitted to an appellate court without first giving such lower courts the
opportunity to dispose of the same with due deliberation. 37 In other words, all available
remedies in the lower court must first be exhausted before filing a petition for certiorari in
the higher courts.
In the case at bar, the petitioner had filed a motion for reconsideration of the order of 1
September 1989 which is still pending resolution by respondent Judge. A petition
for certiorari may not be granted where there is an appeal or other adequate remedy, like a
motion for reconsideration, which is still pending in the court below, 38 as in the present
case.
The Court, however, holds that respondent Judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when he insisted in continuously hearing private
respondent's petition for bail and in ordering the arrest and commitment of the Assistant
Provincial Prosecutor.
It is well to recall that in the restraining order issued on 31 August 1989, this Court ordered
the respondent Judge to cease and desist from continuing the hearing on private
respondent's petition for bail until after he had resolved the motion for discharge of Oscar
Tianzon as state witness. Although the aforesaid motion had already been denied in the
order of 1 September 1989, nevertheless, the prosecution had filed a motion to reconsider
the said order which is still pending resolution. Hence, the said motion has not yet been
resolved with finality. When respondent Judge, therefore, denied the prosecution's motion
for deferment of the scheduled hearings on private respondent's petition for bail and in
proceeding to hear the said motion, by ordering the prosecution to present its evidence —
which precipitated the walk-out of the Assistant Provincial Prosecutor and his consequent
arrest and commitment to the Provincial Jail — he (respondent judge) was acting in violation
of the restraining order issued by this Court. Had the respondent Judge granted the
prosecution's motion for deferment, or at least, cancelled the hearings on 14 and 15
September 1989, and instead, resolved the prosecution's motion for reconsideration of the
order of 1 September 1989, this unfortunate incident could have been avoided.
Although the matter of adjournment and postponement of trials is within the sound
discretion of the court, such discretion should always be predicated on the consideration
that more than the mere convenience of the courts or of the parties in the case, the ends of
justice and fairness should be served thereby. 39 After all, postponements and continuances
are part and parcel of our procedural system of dispensing justice. 40
Besides, contempt of court presupposes a contumacious attitude, a flouting or arrogant
belligerence, a defiance of the court. 41 And, while courts are inherently empowered to
punish for contempt to the end that they may enforce their authority, preserve their
integrity, maintain their dignity, and insure the effectiveness of the administration of
justice, 42 nevertheless, such power should be exercised on the preservative and not on the
vindictive principle, for the power to punish for contempt, being drastic and extraordinary in
its nature, should not be resorted to unless necessary in the interest of justicen 43
A perusal of the transcript of the hearing held on 14 September 1989 shows that Assistant
Provincial Prosecutor John Turalba had not made any statement that could be considered as
"contumacious" or an affront to the dignity of the court. And, while the act of Assistant
Provincial Prosecutor Turalba of "walking out" does not meet our approval — as he should
have stayed after the respondent Judge had denied his motion for permission to leave the
courtroom — yet, the respondent Judge, in ordering the incarceration of Assistant Provincial
Prosecutor Turalba, acted beyond the permissible limits of his power to punish for contempt.
And now to the question on whether or not respondent Judge should be disqualified from
further hearing Crim. Cases Nos. 3350-3355, Section 1, Rule 137 of the Rules of Court
provides:
SECTION 1. Disqualification of judges.— No judge or judicial officer shall sit in any
case in which he, or his wife or child, is pecuniarily interested as heir, legatee,
creditor or otherwise, or in which he is related to either party within the sixth
degree of consanguinity or affinity, or to counsel within the fourth degree,
computed according to the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has presided in any
inferior court when his ruling or decision is the subject of review, without the
written consent of all parties in interest, signed by them and entered upon the
records.
A judge, may in the exercise of his sound discretion, disqualify himself from sitting in
a case, for just or valid reasons other than those mentioned above.
In the case at bar, the reason relied upon for the inhibition or disqualification of respondent
Judge, i.e. manifest partiality to private respondent, is not based on any of the grounds
enumerated in the first paragraph of Section 1, Rule 137 which per se disqualifies a judge
from sitting in a case, but on the second paragraph thereof. The settled rule is that the judge
is left to decide for himself whether he will desist, for just or valid reasons, from sitting in a
case. Respondent Judge has not as yet decided whether or not he will inhibit himself from
further hearing Criminal Cases Nos. 3350-3355 in the face of the prosecution's motion to
disqualify or inhibit him. It would be premature for the Court at this stage to rule on the
matter.
WHEREFORE, the petition for certiorari is GRANTED insofar as the order of 14 September
1989 is concerned, and the said order is hereby ANNULLED and SET ASIDE. Without costs.
SO ORDERED.
[A.M. No. P-99-1287. January 26, 2001]
OFFICE OF THE COURT ADMINISTRATOR, complainant,
vs. ATTY. MISAEL M. LADAGA, Branch Clerk of Court, Regional Trial Court, Branch 133,
Makati City, respondent.
RESOLUTION
KAPUNAN, J.:
In a Letter, dated August 31, 1998, respondent Atty. Misael M. Ladaga, Branch Clerk of
Court of the Regional Trial Court of Makati, Branch 133, requested the Court Administrator,
Justice Alfredo L. Benipayo, for authority to appear as pro bono counsel of his cousin, Narcisa
Naldoza Ladaga, in Criminal Case No. 84885, entitled People vs. Narcisa Naldoza Ladaga for
Falsification of Public Document pending before the Metropolitan Trial Court of Quezon City,
Branch 40.[1] While respondents letter-request was pending action, Lisa Payoyo Andres, the
private complainant in Criminal Case No. 84885, sent a letter to the Court Administrator,
dated September 2, 1998, requesting for a certification with regard to respondents authority
to appear as counsel for the accused in the said criminal case. [2] On September 7, 1998, the
Office of the Court Administrator referred the matter to respondent for comment. [3]
In his Comment,[4] dated September 14, 1998, respondent admitted that he had
appeared in Criminal Case No. 84885 without prior authorization. He reasoned out that the
factual circumstances surrounding the criminal case compelled him to handle the defense of
his cousin who did not have enough resources to hire the services of a counsel de parte;
while, on the other hand, private complainant was a member of a powerful family who was
out to get even with his cousin. Furthermore, he rationalized that his appearance in the
criminal case did not prejudice his office nor the interest of the public since he did not take
advantage of his position. In any case, his appearances in court were covered by leave
application approved by the presiding judge.
On December 8, 1998, the Court issued a resolution denying respondents request for
authorization to appear as counsel and directing the Office of the Court Administrator to file
formal charges against him for appearing in court without the required authorization from
the Court.[5] On January 25, 1999, the Court Administrator filed the instant administrative
complaint against respondent for violating Sec. 7(b)(2) of Republic Act No. 6713, otherwise
known as the Code of Conduct and Ethical Standards for Public Officials and Employees,
which provides:
Sec. 7. Prohibited Acts and Transactions. In addition to acts and omissions of public officials
and employees now prescribed in the Constitution and existing laws, the following shall
constitute prohibited acts and transactions of any public official and employee and are
hereby declared to be unlawful:
xxx
(b) Outside employment and other activities related thereto.- Public officials and
employees during their incumbency shall not:
xxx
(2) Engage in the private practice of their profession unless authorized by the
Constitution or law, Provided, that such practice will not conflict or tend to
conflict with their official functions;
In our Resolution, dated February 9, 1999, we required respondent to comment on the
administrative complaint.
In his Comment, respondent explained that he and Ms. Ladaga are close blood cousins
who belong to a powerless family from the impoverished town of Bacauag, Surigao del
Norte. From childhood until he finished his law degree, Ms. Ladaga had always supported
and guided him while he looked up to her as a mentor and an adviser. Because of their close
relationship, Ms. Ladaga sought respondents help and advice when she was charged in
Criminal Case No. 84885 for falsification by the private complainant, Lisa Payoyo Andres,
whose only purpose in filing the said criminal case was to seek vengeance on her cousin. He
explained that his cousins discord with Ms. Andres started when the latters husband, SPO4
Pedro Andres, left the conjugal home to cohabit with Ms. Ladaga. During the course of their
illicit affair, SPO4 Andres and Ms. Ladaga begot three (3) children. The birth certificate of
their eldest child is the subject of the falsification charge against Ms. Ladaga. Respondent
stated that since he is the only lawyer in their family, he felt it to be his duty to accept Ms.
Ladagas plea to be her counsel since she did not have enough funds to pay for the services
of a lawyer. Respondent also pointed out that in his seven (7) years of untainted government
service, initially with the Commission on Human Rights and now with the judiciary, he had
performed his duties with honesty and integrity and that it was only in this particular case
that he had been administratively charged for extending a helping hand to a close relative by
giving a free legal assistance for humanitarian purpose. He never took advantage of his
position as branch clerk of court since the questioned appearances were made in the
Metropolitan Trial Court of Quezon City and not in Makati where he is holding office. He
stressed that during the hearings of the criminal case, he was on leave as shown by his
approved leave applications attached to his comment.
In our Resolution, dated June 22, 1999, we noted respondents comment and referred
the administrative matter to the Executive Judge of the Regional Trial Court of Makati, Judge
Josefina Guevarra-Salonga, for investigation, report and recommendation.
In her Report, dated September 29, 1999, Judge Salonga made the following findings
and recommendation:
There is no question that Atty. Misael Ladaga appeared as counsel for and in behalf of his
cousin, Narcisa Naldoza Ladaga, an accused in Criminal Case No. 84-885 for Falsification of
Public Documents before the METC of Quezon City. It is also denied that the appearance of
said respondent in said case was without the previous permission of the Court.
An examination of the records shows that during the occasions that the respondent
appeared as such counsel before the METC of Quezon City, he was on official leave of
absence. Moreover, his Presiding Judge, Judge Napoleon Inoturan was aware of the case he
was handling. That the respondent appeared as pro bono counsel likewise cannot be
denied. His cousin-client Narcisa Ladaga herself positively declared that the respondent did
not receive a single centavo from her. Helpless as she was and respondent being the only
lawyer in the family, he agreed to represent her out of his compassion and high regard for
her.
It may not be amiss to point out, this is the first time that respondent ever handled a case
for a member of his family who is like a big sister to him. He appeared for free and for the
purpose of settling the case amicably. Furthermore, his Presiding Judge was aware of his
appearance as counsel for his cousin.On top of this, during all the years that he has been in
government service, he has maintained his integrity and independence.
RECOMMENDATION
In the light of the foregoing, it appearing that the respondent appeared as counsel for his
cousin without first securing permission from the court, and considering that this is his first
time to do it coupled with the fact that said appearance was not for a fee and was with the
knowledge of his Presiding Judge, it is hereby respectfully recommended that he be
REPRIMANDED with a stern warning that any repetition of such act would be dealt with
more severely.[6]
We agree with the recommendation of the investigating judge.
Respondent is charged under Sec. 7(b)(2) of the Code of Conduct and Ethical Standards
for Public Officials and Employees which prohibits civil servants from engaging in the private
practice of their profession. A similar prohibition is found under Sec. 35, Rule 138 of the
Revised Rules of Court which disallows certain attorneys from engaging in the private
practice of their profession. The said section reads:
SEC. 35. Certain attorneys not to practice.- No judge or other official or employee of the
superior courts or of the Office of the Solicitor General, shall engage in private practice as a
member of the bar or give professional advise to clients.
However, it should be clarified that private practice of a profession, specifically the law
profession in this case, which is prohibited, does not pertain to an isolated court
appearance; rather, it contemplates a succession of acts of the same nature habitually or
customarily holding ones self to the public as a lawyer.
In the case of People vs. Villanueva,[7] we explained the meaning of the term private
practice prohibited by the said section, to wit:
We believe that the isolated appearance of City Attorney Fule did not constitute private
practice, within the meaning and contemplation of the Rules.Practice is more than an
isolated appearance, for it consists in frequent or customary action, a succession of acts of
the same kind. In other words, it is frequent habitual exercise (State vs. Cotner, 127, p. 1, 87
Kan. 864, 42 LRA, N.S. 768) Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding ones self out to the public, as a lawyer and
demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644, 647). The
appearance as counsel on one occasion, is not conclusive as determinative of engagement in
the private practice of law. The following observation of the Solicitor General is noteworthy:
Essentially, the word private practice of law implies that one must have presented
himself to be in the active and continued practice of the legal profession and that his
professional services are available to the public for a compensation, as a source of his
livelihood or in consideration of his said services.
For one thing, it has never been refuted that City Attorney Fule had been given permission
by his immediate superior, the Secretary of Justice, to represent the complainant in the case
at bar, who is a relative.[8]
 Based on the foregoing, it is evident that the isolated instances when respondent
appeared as pro bono counsel of his cousin in Criminal Case No. 84885 does not constitute
the private practice of the law profession contemplated by law.
Nonetheless, while respondents isolated court appearances did not amount to a private
practice of law, he failed to obtain a written permission therefor from the head of the
Department, which is this Court as required by Section 12, Rule XVIII of the Revised Civil
Service Rules, thus:
Sec. 12. No officer or employee shall engage directly in any private business, vocation,
or profession or be connected with any commercial, credit, agricultural, or industrial
undertaking without a written permission from the head of the Department: Provided,
That this prohibition will be absolute in the case of those officers and employees whose
duties and responsibilities require that their entire time be at the disposal of the
Government; Provided, further, That if an employee is granted permission to engage in
outside activities, time so devoted outside of office hours should be fixed by the agency to
the end that it will not impair in any way the efficiency of the officer or employee: And
provided, finally, That no permission is necessary in the case of investments, made by an
officer or employee, which do not involve real or apparent conflict between his private
interests and public duties, or in any way influence him in the discharge of his duties, and he
shall not take part in the management of the enterprise or become an officer of the board of
directors.[9]
Respondent entered his appearance and attended court proceedings on numerous
occasions, i.e., May 4-15, 1998, June 18, 1998, July 13, 1998 and August 5, 1998, as borne
out by his own admission. It is true that he filed leave applications corresponding to the
dates he appeared in court. However, he failed to obtain a prior permission from the head of
the Department. The presiding judge of the court to which respondent is assigned is not the
head of the Department contemplated by law.
WHEREFORE, in view of the foregoing, respondent Atty. Misael M. Ladaga is hereby
REPRIMANDED with a stern warning that any repetition of such act would be dealt with
more severely.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.
BAR MATTER No. 914 October 1, 1999
RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,
vs.
VICENTE D. CHING, applicant.
RESOLUTION
KAPUNAN, J.:
Can a legitimate child born under the 1935 Constitution of a Filipino mother and an alien
father validly elect Philippine citizenship fourteen (14) years after he has reached the age of
majority? This is the question sought to be resolved in the present case involving the
application for admission to the Philippine Bar of Vicente D. Ching.
The facts of this case are as follows:
Vicente D. Ching, the legitimate son of the spouses Tat Ching, a Chinese citizen, and Prescila
A. Dulay, a Filipino, was born in Francia West, Tubao, La Union on 11 April 1964. Since his
birth, Ching has resided in the Philippines.
On 17 July 1998, Ching, after having completed a Bachelor of Laws course at the St. Louis
University in Baguio City, filed an application to take the 1998 Bar Examinations. In a
Resolution of this Court, dated 1 September 1998, he was allowed to take the Bar
Examinations, subject to the condition that he must submit to the Court proof of his
Philippine citizenship.
In compliance with the above resolution, Ching submitted on 18 November 1998, the
following documents:
1. Certification, dated 9 June 1986, issued by the Board of Accountancy of the
Professional Regulations Commission showing that Ching is a certified public accountant;
2. Voter Certification, dated 14 June 1997, issued by Elizabeth B. Cerezo, Election
Officer of the Commission on Elections (COMELEC) in Tubao La Union showing that Ching is a
registered voter of the said place; and
3. Certification, dated 12 October 1998, also issued by Elizabeth B. Cerezo, showing
that Ching was elected as a member of the Sangguniang Bayan of Tubao, La Union during the
12 May 1992 synchronized elections.
On 5 April 1999, the results of the 1998 Bar Examinations were released and Ching was one
of the successful Bar examinees. The oath-taking of the successful Bar examinees was
scheduled on 5 May 1999. However, because of the questionable status of Ching's
citizenship, he was not allowed to take his oath. Pursuant to the resolution of this Court,
dated 20 April 1999, he was required to submit further proof of his citizenship. In the same
resolution, the Office of the Solicitor General (OSG) was required to file a comment on
Ching's petition for admission to the bar and on the documents evidencing his Philippine
citizenship.
The OSG filed its comment on 8 July 1999, stating that Ching, being the "legitimate child of a
Chinese father and a Filipino mother born under the 1935 Constitution was a Chinese citizen
and continued to be so, unless upon reaching the age of majority he elected Philippine
citizenship" 1 in strict compliance with the provisions of Commonwealth Act No. 625 entitled
"An Act Providing for the Manner in which the Option to Elect Philippine Citizenship shall be
Declared by a Person Whose Mother is a Filipino Citizen." The OSG adds that "(w)hat he
acquired at best was only an inchoate Philippine citizenship which he could perfect by
election upon reaching the age of majority." 2 In this regard, the OSG clarifies that "two (2)
conditions must concur in order that the election of Philippine citizenship may be effective,
namely: (a) the mother of the person making the election must be a citizen of the
Philippines; and (b) said election must be made upon reaching the age of majority." 3 The
OSG then explains the meaning of the phrase "upon reaching the age of majority:"
The clause "upon reaching the age of majority" has been construed to mean
a reasonable time after reaching the age of majority which had been interpreted by
the Secretary of Justice to be three (3) years (VELAYO, supra at p. 51 citing Op., Sec.
of Justice No. 70, s. 1940, Feb. 27, 1940). Said period may be extended under certain
circumstances, as when a (sic) person concerned has always considered himself a
Filipino (ibid., citing Op. Nos. 355 and 422, s. 1955; 3, 12, 46, 86 and 97, s. 1953). But
in Cuenco, it was held that an election done after over seven (7) years was not made
within a reasonable time.
In conclusion, the OSG points out that Ching has not formally elected Philippine citizenship
and, if ever he does, it would already be beyond the "reasonable time" allowed by present
jurisprudence. However, due to the peculiar circumstances surrounding Ching's case, the
OSG recommends the relaxation of the standing rule on the construction of the phrase
"reasonable period" and the allowance of Ching to elect Philippine citizenship in accordance
with C.A. No. 625 prior to taking his oath as a member of the Philippine Bar.
On 27 July 1999, Ching filed a Manifestation, attaching therewith his Affidavit of Election of
Philippine Citizenship and his Oath of Allegiance, both dated 15 July 1999. In his
Manifestation, Ching states:
1. I have always considered myself as a Filipino;
2. I was registered as a Filipino and consistently declared myself as one in my
school records and other official documents;
3. I am practicing a profession (Certified Public Accountant) reserved for
Filipino citizens;
4. I participated in electoral process[es] since the time I was eligible to vote;
5. I had served the people of Tubao, La Union as a member of the
Sangguniang Bayan from 1992 to 1995;
6. I elected Philippine citizenship on July 15, 1999 in accordance with
Commonwealth Act No. 625;
7. My election was expressed in a statement signed and sworn to by me
before a notary public;
8. I accompanied my election of Philippine citizenship with the oath of
allegiance to the Constitution and the Government of the Philippines;
9. I filed my election of Philippine citizenship and my oath of allegiance to
(sic) the Civil Registrar of Tubao La Union, and
10. I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.
Since Ching has already elected Philippine citizenship on 15 July 1999, the question raised is
whether he has elected Philippine citizenship within a "reasonable time." In the affirmative,
whether his citizenship by election retroacted to the time he took the bar examination.
When Ching was born in 1964, the governing charter was the 1935 Constitution. Under
Article IV, Section 1(3) of the 1935 Constitution, the citizenship of a legitimate child born of a
Filipino mother and an alien father followed the citizenship of the father, unless, upon
reaching the age of majority, the child elected Philippine citizenship. 4 This right to elect
Philippine citizenship was recognized in the 1973 Constitution when it provided that "(t)hose
who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen
hundred and thirty-five" are citizens of the Philippines. 5 Likewise, this recognition by the
1973 Constitution was carried over to the 1987 Constitution which states that "(t)hose born
before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching
the age of majority" are Philippine citizens. 6 It should be noted, however, that the 1973 and
1987 Constitutional provisions on the election of Philippine citizenship should not be
understood as having a curative effect on any irregularity in the acquisition of citizenship for
those covered by the 1935 Constitution. 7 If the citizenship of a person was subject to
challenge under the old charter, it remains subject to challenge under the new charter even
if the judicial challenge had not been commenced before the effectivity of the new
Constitution. 8
C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935 Constitution,
prescribes the procedure that should be followed in order to make a valid election of
Philippine citizenship. Under Section 1 thereof, legitimate children born of Filipino mothers
may elect Philippine citizenship by expressing such intention "in a statement to be signed
and sworn to by the party concerned before any officer authorized to administer oaths, and
shall be filed with the nearest civil registry. The said party shall accompany the aforesaid
statement with the oath of allegiance to the Constitution and the Government of the
Philippines."
However, the 1935 Constitution and C.A. No. 625 did not prescribe a time period within
which the election of Philippine citizenship should be made. The 1935 Charter only provides
that the election should be made "upon reaching the age of majority." The age of majority
then commenced upon reaching twenty-one (21) years. 9 In the opinions of the Secretary of
Justice on cases involving the validity of election of Philippine citizenship, this dilemma was
resolved by basing the time period on the decisions of this Court prior to the effectivity of
the 1935 Constitution. In these decisions, the proper period for electing Philippine
citizenship was, in turn, based on the pronouncements of the Department of State of the
United States Government to the effect that the election should be made within a
"reasonable time" after attaining the age of majority. 10 The phrase "reasonable time" has
been interpreted to mean that the election should be made within three (3) years from
reaching the age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three (3) year
period is not an inflexible rule. We said:
It is true that this clause has been construed to mean a reasonable period
after reaching the age of majority, and that the Secretary of Justice has ruled that
 three (3) years is the reasonable time to elect Philippine citizenship under the
constitutional provision adverted to above, which period may be extended under
certain circumstances, as when the person concerned has always considered himself
a Filipino. 13
However, we cautioned in Cuenco that the extension of the option to elect Philippine
citizenship is not indefinite:
Regardless of the foregoing, petitioner was born on February 16, 1923. He
became of age on February 16, 1944. His election of citizenship was made on May
15, 1951, when he was over twenty-eight (28) years of age, or over seven (7) years
after he had reached the age of majority. It is clear that said election has not been
made "upon reaching the age of majority." 14
In the present case, Ching, having been born on 11 April 1964, was already thirty-five (35)
years old when he complied with the requirements of C.A. No. 625 on 15 June 1999, or over
fourteen (14) years after he had reached the age of majority. Based on the interpretation of
the phrase "upon reaching the age of majority," Ching's election was clearly beyond, by any
reasonable yardstick, the allowable period within which to exercise the privilege. It should
be stated, in this connection, that the special circumstances invoked by Ching, i.e., his
continuous and uninterrupted stay in the Philippines and his being a certified public
accountant, a registered voter and a former elected public official, cannot vest in him
Philippine citizenship as the law specifically lays down the requirements for acquisition of
Philippine citizenship by election.
Definitely, the so-called special circumstances cannot constitute what Ching erroneously
labels as informal election of citizenship. Ching cannot find a refuge in the case of In
re: Florencio Mallare, 15 the pertinent portion of which reads:
And even assuming arguendo that Ana Mallare were (sic) legally married to
an alien, Esteban's exercise of the right of suffrage when he came of age, constitutes
a positive act of election of Philippine citizenship. It has been established that
Esteban Mallare was a registered voter as of April 14, 1928, and that as early as 1925
(when he was about 22 years old), Esteban was already participating in the elections
and campaigning for certain candidate[s]. These acts are sufficient to show his
preference for Philippine citizenship. 16
Ching's reliance on Mallare is misplaced. The facts and circumstances obtaining therein are
very different from those in the present case, thus, negating its applicability. First,
Esteban Mallare was born before the effectivity of the 1935 Constitution and the enactment
of C.A. No. 625. Hence, the requirements and procedures prescribed under the 1935
Constitution and C.A. No. 625 for electing Philippine citizenship would not be applicable to
him. Second, the ruling in Mallare was an obiter since, as correctly pointed out by the OSG,
it was not necessary for Esteban Mallare to elect Philippine citizenship because he was
already a Filipino, he being a natural child of a Filipino mother. In this regard, the Court
stated:
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself
a Filipino, and no other act would be necessary to confer on him all the rights and
privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos
Co vs. Government of the Philippine Islands, 42 Phil. 543, Serra vs. Republic, L-4223,
May 12, 1952, Sy Quimsuan vs. Republic, L-4693, Feb. 16, 1953; Pitallano vs.
Republic, L-5111, June 28, 1954). Neither could any act be taken on the erroneous
belief that he is a non-filipino divest him of the citizenship privileges to which he is
rightfully entitled. 17
The ruling in Mallare was reiterated and further elaborated in Co vs. Electoral Tribunal of the
House of Representatives, 18where we held:
We have jurisprudence that defines "election" as both a formal and an informal
process.
In the case of In re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the
exercise of the right of suffrage and the participation in election exercises constitute
a positive act of election of Philippine citizenship. In the exact pronouncement of the
Court, we held:
Esteban's exercise of the right of suffrage when he came of age
constitutes a positive act of Philippine citizenship. (p. 52: emphasis supplied)
The private respondent did more than merely exercise his right of suffrage. He has
established his life here in the Philippines.
For those in the peculiar situation of the respondent who cannot be excepted
to have elected Philippine citizenship as they were already citizens, we apply the In
Re Mallare rule.
xxx xxx xxx
The filing of sworn statement or formal declaration is a requirement for
those who still have to elect citizenship. For those already Filipinos when the time to
elect came up, there are acts of deliberate choice which cannot be less binding.
Entering a profession open only to Filipinos, serving in public office where citizenship
is a qualification, voting during election time, running for public office, and other
categorical acts of similar nature are themselves formal manifestations for these
persons.
An election of Philippine citizenship presupposes that the person electing is
an alien. Or his status is doubtful because he is a national of two countries. There is
no doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one
(21).
We repeat that any election of Philippine citizenship on the part of the
private respondent would not only have been superfluous but it would also have
resulted in an absurdity. How can a Filipino citizen elect Philippine citizenship? 19
The Court, like the OSG, is sympathetic with the plight of Ching. However, even if we
consider the special circumstances in the life of Ching like his having lived in the Philippines
all his life and his consistent belief that he is a Filipino, controlling statutes and jurisprudence
constrain us to disagree with the recommendation of the OSG. Consequently, we hold that
Ching failed to validly elect Philippine citizenship. The span of fourteen (14) years that lapsed
from the time he reached the age of majority until he finally expressed his intention to elect
Philippine citizenship is clearly way beyond the contemplation of the requirement of electing
"upon reaching the age of majority." Moreover, Ching has offered no reason why he delayed
his election of Philippine citizenship. The prescribed procedure in electing Philippine
citizenship is certainly not a tedious and painstaking process. All that is required of the
elector is to execute an affidavit of election of Philippine citizenship and, thereafter, file the
same with the nearest civil registry. Ching's unreasonable and unexplained delay in making
his election cannot be simply glossed over.
Philippine citizenship can never be treated like a commodity that can be claimed when
needed and suppressed when convenient. 20 One who is privileged to elect Philippine
citizenship has only an inchoate right to such citizenship. As such, he should avail of the right
with fervor, enthusiasm and promptitude. Sadly, in this case, Ching slept on his opportunity
to elect Philippine citizenship and, as a result. this golden privilege slipped away from his
grasp.
IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D. Ching's application for
admission to the Philippine Bar.
SO ORDERED.
B. M. No. 1154 June 8, 2004
IN THE MATTER OF THE DISQUALIFICATION OF BAR EXAMINEE HARON S. MELING IN THE
2002 BAR EXAMINATIONS AND FOR DISCIPLINARY ACTION AS MEMBER OF THE PHILIPPINE
SHARI’A BAR, ATTY. FROILAN R. MELENDREZ, petitioner.
RESOLUTION
TINGA, J.:
The Court is here confronted with a Petition that seeks twin reliefs, one of which is ripe while
the other has been rendered moot by a supervening event.
The antecedents follow.
On October 14, 2002, Atty. Froilan R. Melendrez (Melendrez) filed with the Office of the Bar
Confidant (OBC) a Petition1 to disqualify Haron S. Meling (Meling) from taking the 2002 Bar
Examinations and to impose on him the appropriate disciplinary penalty as a member of the
Philippine Shari’a Bar.
In the Petition, Melendrez alleges that Meling did not disclose in his Petition to take the 2002
Bar Examinations that he has three (3) pending criminal cases before the Municipal Trial
Court in Cities (MTCC), Cotabato City, namely: Criminal Cases Noa. 15685 and 15686, both
for Grave Oral Defamation, and Criminal Case No. 15687 for Less Serious Physical Injuries.
The above-mentioned cases arose from an incident which occurred on May 21, 2001, when
Meling allegedly uttered defamatory words against Melendrez and his wife in front of media
practitioners and other people. Meling also purportedly attacked and hit the face of
Melendrez’ wife causing the injuries to the latter.
Furthermore, Melendrez alleges that Meling has been using the title "Attorney" in his
communications, as Secretary to the Mayor of Cotabato City, despite the fact that he is not a
member of the Bar. Attached to the Petition is an indorsement letter which shows that
Meling used the appellation and appears on its face to have been received by the
Sangguniang Panglungsod of Cotabato City on November 27, 2001.
Pursuant to this Court’s R E S O L U T I O N2 dated December 3, 2002, Meling filed
his Answer with the OBC.
In his Answer,3 Meling explains that he did not disclose the criminal cases filed against him
by Melendrez because retired Judge Corocoy Moson, their former professor, advised him to
settle his misunderstanding with Melendrez. Believing in good faith that the case would be
settled because the said Judge has moral ascendancy over them, he being their former
professor in the College of Law, Meling considered the three cases that actually arose from a
single incident and involving the same parties as "closed and terminated." Moreover, Meling
denies the charges and adds that the acts complained of do not involve moral turpitude.
As regards the use of the title "Attorney," Meling admits that some of his communications
really contained the word "Attorney" as they were, according to him, typed by the office
clerk.
In its Report and Recommendation4 dated December 8, 2003, the OBC disposed of the
charge of non-disclosure against Meling in this wise:
The reasons of Meling in not disclosing the criminal cases filed against him in his
petition to take the Bar Examinations are ludicrous. He should have known that only
the court of competent jurisdiction can dismiss cases, not a retired judge nor a law
professor. In fact, the cases filed against Meling are still pending. Furthermore,
granting arguendo that these cases were already dismissed, he is still required to
disclose the same for the Court to ascertain his good moral character. Petitions to
take the Bar Examinations are made under oath, and should not be taken lightly by
an applicant.
The merit of the cases against Meling is not material in this case. What matters is his act of
concealing them which constitutes dishonesty.
In Bar Matter 1209, the Court stated, thus:
It has been held that good moral character is what a person really is, as
distinguished from good reputation or from the opinion generally entertained of
him, the estimate in which he is held by the public in the place where he is known.
Moral character is not a subjective term but one which corresponds to objective
reality. The standard of personal and professional integrity is not satisfied by such
 conduct as it merely enables a person to escape the penalty of criminal law. Good
moral character includes at least common honesty.
The non-disclosure of Meling of the criminal cases filed against him makes him also
answerable under Rule 7.01 of the Code of Professional Responsibility which states
that "a lawyer shall be answerable for knowingly making a false statement or
suppressing a material fact in connection with his application for admission to the
bar."5
As regards Meling’s use of the title "Attorney", the OBC had this to say:
Anent the issue of the use of the appellation "Attorney" in his letters, the
explanation of Meling is not acceptable. Aware that he is not a member of the Bar,
there was no valid reason why he signed as "attorney" whoever may have typed the
letters.
Although there is no showing that Meling is engaged in the practice of law, the fact
is, he is signing his communications as "Atty. Haron S. Meling" knowing fully well
that he is not entitled thereto. As held by the Court in Bar Matter 1209, the
unauthorized use of the appellation "attorney" may render a person liable for
indirect contempt of court.6
Consequently, the OBC recommended that Meling not be allowed to take the Lawyer’s Oath
and sign the Roll of Attorneys in the event that he passes the Bar Examinations. Further, it
recommended that Meling’s membership in the Shari’a Bar be suspended until further
orders from the Court.7
We fully concur with the findings and recommendation of the OBC. Meling, however, did not
pass the 2003 Bar Examinations. This renders the Petition, insofar as it seeks to prevent
Meling from taking the Lawyer’s Oath and signing the Roll of Attorneys, moot and academic.
On the other hand, the prayer in the same Petition for the Court to impose the appropriate
sanctions upon him as a member of the Shari’a Bar is ripe for resolution and has to be acted
upon.
Practice of law, whether under the regular or the Shari’a Court, is not a matter of right but
merely a privilege bestowed upon individuals who are not only learned in the law but who
are also known to possess good moral character. 8 The requirement of good moral character
is not only a condition precedent to admission to the practice of law, its continued
possession is also essential for remaining in the practice of law. 9
The standard form issued in connection with the application to take the 2002 Bar
Examinations requires the applicant to aver that he or she "has not been charged with any
act or omission punishable by law, rule or regulation before a fiscal, judge, officer or
administrative body, or indicted for, or accused or convicted by any court or tribunal of, any
offense or crime involving moral turpitude; nor is there any pending case or charge against
him/her." Despite the declaration required by the form, Meling did not reveal that he has
three pending criminal cases. His deliberate silence constitutes concealment, done under
oath at that.
The disclosure requirement is imposed by the Court to determine whether there is
satisfactory evidence of good moral character of the applicant. 10 The nature of whatever
cases are pending against the applicant would aid the Court in determining whether he is
endowed with the moral fitness demanded of a lawyer. By concealing the existence of such
cases, the applicant then flunks the test of fitness even if the cases are ultimately proven to
be unwarranted or insufficient to impugn or affect the good moral character of the
applicant.
Meling’s concealment of the fact that there are three (3) pending criminal cases against him
speaks of his lack of the requisite good moral character and results in the forfeiture of the
privilege bestowed upon him as a member of the Shari’a Bar.
Moreover, his use of the appellation "Attorney", knowing fully well that he is not entitled to
its use, cannot go unchecked. In Alawi v. Alauya,11 the Court had the occasion to discuss the
impropriety of the use of the title "Attorney" by members of the Shari’a Bar who are not
likewise members of the Philippine Bar. The respondent therein, an executive clerk of court
of the 4th Judicial Shari’a District in Marawi City, used the title "Attorney" in several
correspondence in connection with the rescission of a contract entered into by him in his
private capacity. The Court declared 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. 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 "counselors," in the sense that they give counsel or advice
in a professional capacity, only the latter is an "attorney." The title "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. 12
The judiciary has no place for dishonest officers of the court, such as Meling in this case. The
solemn task of administering justice demands that those who are privileged to be part of
service therein, from the highest official to the lowliest employee, must not only be
competent and dedicated, but likewise live and practice the virtues of honesty and integrity.
Anything short of this standard would diminish the public's faith in the Judiciary and
constitutes infidelity to the constitutional tenet that a public office is a public trust.
In Leda v. Tabang, supra, the respondent concealed the fact of his marriage in his application
to take the Bar examinations and made conflicting submissions before the Court. As a result,
we found the respondent grossly unfit and unworthy to continue in the practice of law and
suspended him therefrom until further orders from the Court.
WHEREFORE, the Petition is granted insofar as it seeks the imposition of appropriate
sanctions upon Haron S. Meling as a member of the Philippine Shari’a Bar. Accordingly, the
membership of Haron S. Meling in the Philippine Shari’a Bar is hereby SUSPENDED until
further orders from the Court, the suspension to take effect immediately. Insofar as
the Petition seeks to prevent Haron S. Meling from taking the Lawyer’s Oath and signing the
Roll of Attorneys as a member of the Philippine Bar, the same is DISMISSED for having
become moot and academic.
Copies of this Decision shall be circulated to all the Shari’a Courts in the country for their
information and guidance.
SO ORDERED.
[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.
DECISION
NARVASA, C.J.:
Sophia Alawi was (and presumably still is) a sales representative (or coordinator) of E. B.
Villarosa & Partners Co., Ltd. of Davao City, a real estate and housing company. Ashari M.
Alauya is the incumbent executive clerk of court of the 4th Judicial Shari'a District in Marawi
City. They were classmates, and used to be friends.
It appears that through Alawi's agency, a contract was executed for the purchase on
installments by Alauya of one of the housing units belonging to the above mentioned firm
(hereafter, simply Villarosa & Co.); and in connection therewith, a housing loan was also
granted to Alauya by the National Home Mortgage Finance Corporation (NHMFC).
Not long afterwards, or more precisely on December 15, 1995, Alauya addressed a
letter to the President of Villarosa & Co. advising of the termination of his contract with the
company. He wrote:
" ** I am formally and officially withdrawing from and notifying you of my intent to
terminate the Contract/Agreement entered into between me and your company, as
represented by your Sales Agent/Coordinator, SOPHIA ALAWI, of your company's branch
office here in Cagayan de Oro City, on the grounds that my consent was vitiated by gross
misrepresentation, deceit, fraud, dishonesty and abuse of confidence by the aforesaid sales
agent which made said contract void ab initio. Said sales agent acting in bad faith
perpetrated such illegal and unauthorized acts which made said contract an Onerous
Contract prejudicial to my rights and interests."
He then proceeded to expound in considerable detail and quite acerbic language on the
"grounds which could evidence the bad faith, deceit, fraud, misrepresentation, dishonesty
and abuse of confidence by the unscrupulous sales agent ** ;" and closed with the plea that
Villarosa & Co. "agree for the mutual rescission of our contract, even as I inform you that I
categorically state on record that I am terminating the contract **. I hope I do not have to
resort to any legal action before said onerous and manipulated contract against my interest
be annulled. I was actually fooled by your sales agent, hence the need to annul the
controversial contract."
Alauya sent a copy of the letter to the Vice-President of Villarosa & Co. at San Pedro,
Gusa, Cagayan de Oro City. The envelope containing it, and which actually went through the
post, bore no stamps. Instead at the right hand corner above the description of the
addressee, the words, "Free Postage PD 26," had been typed.
On the same date, December 15, 1995, Alauya also wrote to Mr. Fermin T. Arzaga, Vice-
President, Credit & Collection Group of the National Home Mortgage Finance Corporation
(NHMFC) at Salcedo Village, Makati City, repudiating as fraudulent and void his contract with
Villarosa & Co.; and asking for cancellation of his housing loan in connection therewith,
which was payable from salary deductions at the rate of P4,338.00 a month. Among other
things, he said:
" ** (T)hrough this written notice, I am terminating, as I hereby annul, cancel, rescind and
voided, the 'manipulated contract' entered into between me and the E.B. Villarosa & Partner
Co., Ltd., as represented by its sales agent/coordinator, SOPHIA ALAWI, who maliciously and
fraudulently manipulated said contract and unlawfully secured and pursued the housing
loan without my authority and against my will. Thus, the contract itself is deemed to be
void ab initio in view of the attending circumstances, that my consent was vitiated by
misrepresentation, fraud, deceit, dishonesty, and abuse of confidence; and that there was no
meeting of the minds between me and the swindling sales agent who concealed the real
facts from me."
And, as in his letter to Villarosa & Co., he narrated in some detail what he took to be the
anomalous actuations of Sophia Alawi.
Alauya wrote three other letters to Mr. Arzaga of the NHMFC, dated February 21, 1996,
April 15, 1996, and May 3, 1996, in all of which, for the same reasons already cited, he
insisted on the cancellation of his housing loan and discontinuance of deductions from his
salary on account thereof.a He also wrote on January 18, 1996 to Ms. Corazon M. Ordoez,
Head of the Fiscal Management & Budget Office, and to the Chief, Finance Division, both of
this Court, to stop deductions from his salary in relation to the loan in question, again
asserting the anomalous manner by which he was allegedly duped into entering into the
contracts by "the scheming sales agent."b
The upshot was that in May, 1996, the NHMFC wrote to the Supreme Court requesting
it to stop deductions on Alauya's UHLP loan "effective May 1996," and began negotiating
with Villarosa & Co. "for the buy-back of ** (Alauya's) mortgage, and ** the refund of **
(his) payments."c
On learning of Alauya's letter to Villarosa & Co. of December 15, 1995, Sophia Alawi
filed with this Court a verified complaint dated January 25, 1996 -- to which she appended a
copy of the letter, and of the above mentioned envelope bearing the typewritten words,
"Free Postage PD 26."[1] In that complaint, she accused Alauya of:
1. "Imputation of malicious and libelous charges with no solid grounds through manifest
ignorance and evident bad faith;"
2. "Causing undue injury to, and blemishing her honor and established reputation;"
3. "Unauthorized enjoyment of the privilege of free postage **;" and
4. Usurpation of the title of "attorney," which only regular members of the Philippine Bar
may properly use.
She deplored Alauya's references to her as "unscrupulous, swindler, forger, manipulator,
etc." without "even a bit of evidence to cloth (sic) his allegations with the essence of truth,"
denouncing his imputations as irresponsible, "all concoctions, lies, baseless and coupled
with manifest ignorance and evident bad faith," and asserting that all her dealings with
Alauya had been regular and completely transparent. She closed with the plea that Alauya
"be dismissed from the 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 of P26,028.60
had been deducted from his salary. [7] He declared that there was no basis for the complaint;
in communicating with Villarosa & Co. he had merely acted in defense of his rights. He
denied any abuse of the franking privilege, saying that he gave P20.00 plus transportation
fare to a subordinate whom he entrusted with the mailing of certain letters; that the words:
"Free Postage PD 26," were typewritten on the envelope by some other person, an averment
corroborated by the affidavit of Absamen C. Domocao, Clerk IV (subscribed and sworn to
before respondent himself, and attached to the comment as Annex J); [8] and as far as he
knew, his subordinate mailed the letters with the use of the money he had given for postage,
and if those letters were indeed mixed with the official mail of the court, this had occurred
inadvertently and because of an honest mistake. [9]
Alauya justified his use of the title, "attorney," by the assertion that it is "lexically
synonymous" with "Counsellors-at-law," a title to which Shari'a lawyers have a rightful claim,
adding that he prefers the title of "attorney" because "counsellor" is often mistaken for
"councilor," "konsehal or the Maranao term "consial," connoting a local legislator beholden
to the mayor. Withal, he does not consider himself a lawyer.
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.
A.C. No. 4838 July 29, 2003
EMILIO GRANDE, Complainant,
vs.
ATTY. EVANGELINE DE SILVA, Respondent.
DECISION
YNARES-SANTIAGO, J.:
Complainant Emilio Grande was the private offended party in Criminal Cases Nos. 96-1346 to
96-1353, filed with the Regional Trial Court of Marikina City, Branch 273, for Estafa and
Violation of Batas Pambansa Bilang 22, entitled "People of the Philippines, Plaintiff versus
Sergio Natividad, Accused." During the proceedings, respondent Atty. Evangeline de Silva,
counsel for the accused, tendered to complainant Check No. 0023638 in the amount of
P144,768.00, drawn against her account with the Philippine National Bank, as settlement of
the civil aspect of the case against her client. Complainant refused to accept the check, but
respondent assured him that the same will be paid upon its presentment to her drawee
bank. She manifested that as a lawyer, she would not issue a check which is not sufficiently
funded. Thus, respondent was prevailed upon by complainant to accept the check.
Consequently, he desisted from participating as a complaining witness in the criminal case,
which led to the dismissal of the same and the release of the accused, Sergio Natividad.
When complainant deposited the check, the same was returned unpaid by the drawee bank
for the reason: "Account Closed." On June 19, 1997, complainant wrote a letter to
respondent demanding that she pay the face value of the check. 1 However, his demand was
ignored by respondent; hence, he instituted a criminal complaint against her for Estafa and
Violation of Batas Pambansa Bilang 22 with the Office of the City Prosecutor of Marikina,
which was docketed as I.S. No. 97-1036. On September 22, 1997, the Marikina City
Prosecutor filed the necessary information for violation of Batas Pambansa Bilang 22 against
respondent Atty. Evangeline de Silva.2
On November 10, 1997, complainant filed the instant administrative complaint for
disbarment of respondent for deceit and violation of the Lawyer’s Oath. 3
In a Resolution dated February 2, 1998 sent to respondent’s given address at Carmelo
Compound, Newton Avenue, Mayamot, Antipolo City, she was required to comment on the
complaint within ten (10) days from notice. 4 However, it was returned unserved with the
notation "Moved".5 The Assistant National Secretary of the IBP submitted the latest address
of respondent as 274 M.H. Del Pilar Street, Pasig City. 6
On June 20, 2001, another resolution requiring respondent to comment on the
administrative complaint filed against her was served at the aforesaid address. This was
again returned unserved with the notation: "Refused". Thus, the case was referred to the IBP
Commission on Bar Discipline (IBP-CBD) for investigation, report and recommendation. 7
In a Report dated December 6, 2001, Investigating Commissioner Florimond C. Rous found
respondent guilty of deceit, gross misconduct and violation of the Lawyer’s Oath. Thus, he
recommended that respondent be suspended from the practice of law for two (2) years.
On October 19, 2002, the IBP Board of Governors passed Resolution No. XV-2002-554 which
adopted the recommendation of the Investigating Commissioner that respondent be
suspended from the practice of law for two (2) years.
We fully agree with the findings and recommendation of the IBP Board of Governors.
The record shows that respondent prevailed upon complainant to accept her personal check
by way of settlement for the civil liability of her client, Sergio Natividad, with the assurance
that the check will have sufficient funds when presented for payment. In doing so, she
deceived complainant into withdrawing his complaint against her client in exchange for a
check which she drew against a closed account.
It is clear that the breach of trust committed by respondent in issuing a bouncing check
amounted to deceit and constituted a violation of her oath, for which she should be
accordingly penalized.8 Such an act constitutes gross misconduct and the penalties for such
malfeasance is prescribed by Rule 138, Section 27of the Rules of Court, to wit:
SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefore. – A
member of the bar may be disbarred or suspended from his office as attorney by the
Supreme Court for any deceit, malpractice or other gross misconduct in such office, grossly
immoral conduct or by reason of his conviction of a crime involving moral turpitude, or for
any violation of the oath which he is required to take before the admission to practice, or for
a willful disobedience appearing as attorney for a party without authority to do so.
The nature of the office of an attorney requires that a lawyer shall be a person of good moral
character. Since this qualification is a condition precedent to a license to enter upon the
practice of law, the maintenance thereof is equally essential during the continuance of the
practice and the exercise of the privilege. Gross misconduct which puts the lawyer’s moral
character in serious doubt may render her unfit to continue in the practice of law. 9
The loss of moral character of a lawyer for any reason whatsoever shall warrant her
suspension or disbarment,10because it is important that members of the legal brotherhood
must conform to the highest standards of morality. 11Any wrongdoing which indicates moral
unfitness for the profession, whether it be professional or non-professional, justifies
disciplinary action. Thus, a lawyer may be disciplined for evading payment of a debt validly
incurred. Such conduct is unbecoming and does not speak well of a member of the bar, for a
lawyer’s professional and personal conduct must at all times be kept beyond reproach and
above suspicion.12
Moreover, the attitude of respondent in deliberately refusing to accept the notices served on
her betrays a deplorably willful character or disposition which stains the nobility of the legal
profession.13 Her conduct not only underscores her utter lack of respect for authority; it also
brings to the fore a darker and more sinister character flaw in her psyche which renders
highly questionable her moral fitness to continue in the practice of law: a defiance for law
and order which is at the very core of her profession.
Such defiance is anathema to those who seek a career in the administration of justice
because obedience to the dictates of the law and justice is demanded of every lawyer. How
else would respondent even endeavor to serve justice and uphold the law when she disdains
to follow even simple directives? Indeed, the first and foremost command of the Code of
Professional Responsibility could not be any clearer:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LEGAL PROCESSES.
Needless to state, respondent’s persistent refusal to comply with lawful orders directed at
her with not even an explanation for doing so is contumacious conduct which merits no
compassion. The duty of a lawyer is to uphold the integrity and dignity of the legal
profession at all times. She can only do this by faithfully performing her duties to society, to
the bar, to the courts and to her clients. 14 We can not tolerate any misconduct that tends to
besmirch the fair name of an honorable profession.
WHEREFORE, in view of the foregoing, respondent ATTY. EVANGELINE DE SILVA is
SUSPENDED from the practice of law for a period of Two (2) Years, effective upon receipt
hereof. Let copies of this Decision be entered in her record as attorney and be furnished the
Integrated Bar of the Philippines and all courts in the country for their information and
guidance.
SO ORDERED.

B.M. No. 712 March 19, 1997
RE: PETITION OF AL ARGOSINO TO TAKE THE LAWYERS OATH
RESOLUTION
PADILLA, J.:
Petitioner Al Caparros Argosino passed the bar examinations held in 1993. The Court
however deferred his oath-taking due to his previous conviction for Reckless Imprudence
Resulting In Homicide.
The criminal case which resulted in petitioner's conviction, arose from the death of a
neophyte during fraternity initiation rites sometime in September 1991. Petitioner and
seven (7) other accused initially entered pleas of not guilty to homicide charges. The eight
(8) accused later withdrew their initial pleas and upon re-arraignment all pleaded guilty to
reckless imprudence resulting in homicide.
On the basis of such pleas, the trial court rendered judgment dated 11 February 1993
imposing on each of the accused a sentence of imprisonment of from two (2) years four (4)
months :and one (1) day to four (4) years.
On 18 June 1993, the trial court granted herein petitioner's application for probation.
On 11 April 1994, the trial court issued an order approving a report dated 6 April 1994
submitted by the Probation Officer recommending petitioner's discharge from probation.
On 14 April 1994, petitioner filed before this Court a petition to be allowed to take the
lawyer's oath based on the order of his discharge from probation.
On 13 July 1995, the Court through then Senior Associate Justice Florentino P. Feliciano
issued a resolution requiring petitioner Al C. Argosino to submit to the Court evidence that
he may now be regarded as complying with the requirement of good moral character
imposed upon those seeking admission to the bar.
In compliance with the above resolution, petitioner submitted no less than fifteen (15)
certifications/letters executed by among others two (2) senators, five (5) trial court judges,
and six (6) members of religious orders. Petitioner likewise submitted evidence that a
scholarship foundation had been established in honor of Raul Camaligan, the hazing victim,
through joint efforts of the latter's family and the eight (8) accused in the criminal case.
On 26 September 1995, the Court required Atty. Gilbert Camaligan, father of Raul, to
comment on petitioner's prayer to be allowed to take the lawyer's oath.
In his comment dated 4 December 1995, Atty. Camaligan states that:
a. He still believes that the infliction of severe physical injuries which led to the death of his
son was deliberate rather than accidental. The offense therefore was not only homicide but
murder since the accused took advantage of the neophyte's helplessness implying abuse of
confidence, taking advantage of superior strength and treachery.
b. He consented to the accused's plea of guilt to the lesser offense of reckless imprudence
resulting in homicide only out of pity for the mothers of the accused and a pregnant wife of
one of the accused who went to their house on Christmas day 1991 and Maundy Thursday
1992, literally on their knees, crying and begging for forgiveness and compassion. They also
told him that the father of one of the accused had died of a heart attack upon learning of his
son's involvement in the incident.
c. As a Christian, he has forgiven petitioner and his co-accused for the death of his son.
However, as a loving father who had lost a son whom he had hoped would succeed him in
his law practice, he still feels the pain of an untimely demise and the stigma of the gruesome
manner of his death.
d. He is not in a position to say whether petitioner is now morally fit for admission to the bar.
He therefore submits the matter to the sound discretion of the Court.
The practice of law is a privilege granted only to those who possess the strict intellectual and
moral qualifications required of lawyers who are instruments in the effective and efficient
administration of justice. It is the sworn duty of this Court not only to "weed out" lawyers
who have become a disgrace to the noble profession of the law but, also of equal
importance, to prevent "misfits" from taking the lawyer's oath, thereby further tarnishing
the public image of lawyers which in recent years has undoubtedly become less than
irreproachable.
The resolution of the issue before us required weighing and reweighing of the reasons for
allowing or disallowing petitioner's admission to the practice of law. The senseless beatings
inflicted upon Raul Camaligan constituted evident absence of that moral fitness required for
admission to the bar since they were totally irresponsible, irrelevant and uncalled for.
In the 13 July 1995 resolution in this case we stated:
. . . participation in the prolonged and mindless physical behavior, [which]
makes impossible a finding that the participant [herein petitioner] was then
possessed of good moral character. 1
In the same resolution, however, we stated that the Court is prepared to consider de
novo the question of whether petitioner has purged himself of the obvious deficiency in
moral character referred to above.
Before anything else, the Court understands and shares the sentiment of Atty. Gilbert
Camaligan. The death of one's child is, for a parent, a most traumatic experience. The
suffering becomes even more pronounced and profound in cases where the death is due to
causes other than natural or accidental but due to the reckless imprudence of third parties.
The feeling then becomes a struggle between grief and anger directed at the cause of death.
Atty. Camaligan's statement before the Court- manifesting his having forgiven the accused is
no less than praiseworthy and commendable. It is exceptional for a parent, given the
circumstances in this case, to find room for forgiveness.
However, Atty. Camaligan admits that he is still not in a position to state if petitioner is now
morally fit to be a lawyer.
After a very careful evaluation of this case, we resolve to allow petitioner Al Caparros
Argosino to take the lawyer's oath, sign the Roll of Attorneys and practice the legal
profession with the following admonition:
In allowing Mr. Argosino to take the lawyer's oath, the Court recognizes that Mr. Argosino is
not inherently of bad moral fiber. On the contrary, the various certifications show that he is a
devout Catholic with a genuine concern for civic duties and public service.
The Court is persuaded that Mr. Argosino has exerted all efforts to atone for the death of
Raul Camaligan. We are prepared to give him the benefit of the doubt, taking judicial notice
of the general tendency of youth to be rash, temerarious and uncalculating.
We stress to Mr. Argosino that the lawyer's oath is NOT a mere ceremony or formality for
practicing law. Every lawyer should at ALL TIMES weigh his actions according to the sworn
promises he makes when taking the lawyer's oath. If all lawyers conducted themselves
strictly according to the lawyer's oath and the Code of Professional Responsibility, the
administration of justice will undoubtedly be faster, fairer and easier for everyone
concerned.
The Court sincerely hopes that Mr. Argosino will continue with the assistance he has been
giving to his community. As a lawyer he will now be in a better position to render legal and
other services to the more unfortunate members of society.
PREMISES CONSIDERED, petitioner Al Caparros Argosino is hereby ALLOWED to take the
lawyer's oath on a date to be set by the Court, to sign the Roll of Attorneys and, thereafter,
to practice the legal profession.
SO ORDERED.
[A.C. No. 4148. July 30, 1998]
REMEDIOS RAMIREZ TAPUCAR, complainant, vs. ATTY. LAURO L. TAPUCAR, respondent.
DECISION
PER CURIAM:
In a letter-complaint dated November 22, 1993, complainant Remedios Ramirez
Tapucar sought the disbarment of her husband, Atty. Lauro L. Tapucar, on the ground of
continuing grossly immoral conduct for cohabiting with a certain Elena (Helen) Pea under
scandalous circumstances.[1]
Prior to this complaint, respondent was already administratively charged four times for
conduct unbecoming an officer of the court. in Administrative Matter No. 1740, resolved on
April 11, 1980, respondent, at that time the Judge of Butuan City, was meted the penalty of
six months suspension without pay,[2] while in Administrative Matter Nos. 1720, 1911 and
2300-CFI, which were consolidated, [3] this Court on January 31, 1981 ordered the separation
from service of respondent.[4]
Now he faces disbarment.
The records reveal the following facts:
From the Report and Recommendation of the Commission on Bar Discipline, it appears
that complainant and respondent were married on October 29, 1953 at the Sacred Heart
Roman Catholic Church in Quezon City. They established their residence in Antipolo, Rizal,
were eight of their eleven children were born. In 1962 respondent relocated his family to
Dadiangas, Cotabato (Now General Santos City), where his last three children were born and
where he practiced his profession until his appointment as a CFI Judge in Butuan City on
January 30, 1976.
In August, 1976, shortly after being appointed as CFI Judge, respondent began
cohabiting with a certain Elena (Helen) Pea, in Nasipit, Agusan Del Norte. On December 28,
1977 Elena gave birth to their first child, named Ofelia Sembrano Pea.
In view of this cohabitation, a certain Atty. Tranquilino Calo filed an administrative
complaint against respondent for immorality. After investigation, the penalty of suspension
from office for a period of six months without pay was meted by this Court upon
respondent.[5]
Despite this penalty, respondent still continued to cohabit with Elena, giving rise to
another charge of immorality and other administrative cases, such as conduct unbecoming
an officer of the court, and grossly immoral conduct. These cases were consolidated and
after investigation, this Court ordered his dismissal and separation from the service. [6]
But his dismissal as a judge did not impel respondent to mend his ways. He continued
living with Elena, which resulted in the birth on September 20, 1989, of their second child
named Laella Pea Tapucar. Moreover, he completely abandoned complainant and his
children by her.
Respondent later moved from Nasipit, Agusan del Norte back to Antipolo, Rizal,
bringing along Elena and their two children. And onMarch 5, 1992, respondent contracted
marriage with Elena in a ceremony solemnized by Metropolitan Trial Court Judge Isagani A.
Geronimo of Antipolo, Rizal. This was done while the respondents marriage to complainant
subsists, as nothing on record shows the dissolution thereof.
Complainant, in the meanwhile, had migrated to United States of America upon her
retirement from the government service in 1990.However, her children, who remained in
Antipolo, kept her posted of the misery they allegedly suffered because of their fathers acts,
including deception and intrigues against them. Thus, despite having previously withdrawn a
similar case which she filed in 1976, complainant was forced to file the present petition for
disbarment under the compulsion of the material impulse to shield and protect her children
from the despotic and cruel acts of their own father. Complainant secured the assistance of
her eldest daughter, Atty. Ma. Susana Tapucar-Baua, to represent her in this case.
Consistent with Section 20, Rule 139-B of the Rules of Court, the matter was referred to
the Commission on Bar Discipline of the Integrated Bar of the Philippines for investigation,
report and recommendation. After conducting a thorough investigation, the Commission
through Commissioner Victor C. Fernandez recommended that respondent be disbarred,
and his name be stricken off the roll of attorneys.Mainly, this was premised on the ground
that, notwithstanding sanctions previously imposed upon him by the Honorable Supreme
Court, respondent continued the illicit liaison with Elena. [7]
In his report Commissioner Fernandez noted that, instead of contradicting the charges
against him, respondent displayed arrogance, and even made a mockery of the law and the
Court, as when he said:
I have been ordered suspended by Supreme Court for two months without pay in 1980 for
having a mistress, the same girl Ms. Elena (Helen) Pea, now my wife. Being ordered
separated in later administrative case constitute double jeopardy. If now disbarred for
marrying Ms. Elena Pea will constitute triple jeopardy. If thats the law so be it.[8]
Based on said report, the Board of Governors of the Integrated Bar of the Philippines,
passed on May 17, 1997, a Resolution adopting the Commissioners recommendation, as
follows:
RESOLUTION NO. XII-97-97
Adm. Case No. 4148
Remedios Ramirez Tapucar vs. Atty. Lauro L. Tapucar
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner in the above-titled case, herein made
part of the Resolution/Decision as Annex A; and, finding the recommendation therein to be
fully supported by the evidence on record and the applicable laws and rules, Respondent
Atty. Lauro L. Tapucar is hereby DISBARRED and that his name be stricken off the roll of
attorneys.
We find the Report and Recommendation of Commissioner Fernandez, as approved and
adopted by the Board of Governors of IBP, more than sufficient to justify and support the
foregoing Resolution, herein considered as the recommendation to this Court by said Board
pursuant to Rule 139-B, Sec. 12(b), of the Rules of Court. * We are in agreement that
respondents actuations merit the penalty of disbarment.
Well settled is the rule that good moral character is not only a condition precedent for
admission to the legal profession, but it must also remain intact in order to maintain ones
good standing in that exclusive and honored fraternity. [9] There is perhaps no profession after
that of the sacred ministry in which a high-toned morality is more imperative than that of
law.[10] The Code of Professional Responsibility mandates that:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
Rule 7.03 A lawyer shall not engage in conduct that adversely reflects on his fitness to
practice law, nor should he, whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession.*
As this Court often reminds members of the Bar, they must live up to the standards and
norms expected of the legal profession, by upholding the ideals and tenets embodied in the
Code of Professional Responsibility always. Lawyers must maintain a high standards of legal
proficiency, as well as morality including honesty, integrity and fair dealing. For they are at all
times subject to the scrutinizing eye of public opinion and community approbation. Needless
to state, those whose conduct both public and private fails this scrutiny would have to be
disciplined and, after appropriate proceedings, penalized accordingly.
Moreover, it should be recalled that respondent here was once a member of the
judiciary, a fact that aggravates this professional infractions. For having occupied that place
of honor in the Bench, he knew a judges actuations ought to be free from any appearance of
impropriety.[11] For a judge is the visible representation of the law, more importantly, of
justice. Ordinary citizens consider him as a source of strength that fortifies their will to obey
the law.[12] Indeed, a judge should avoid the slightest infraction of the law in all of his
actuations, lest it be a demoralizing example to others. [13] Surely, respondent could not have
forgotten the Code of Judicial Conduct entirely as to lose its moral imperatives. [14]
Like a judge who is held to a high standard of integrity and ethical conduct, [15] an
attorney-at-law is also invested with public trust. Judges and lawyers serve in the
administration of justice. Admittedly, as officers of the court, lawyers must ensure the faith
and confidence of the public that justice is administered with dignity and civility. A high
degree or moral integrity is expected of a lawyer in the community where he resides. He
must maintain due regard for public decency in an orderly society.
A lawyer is expected at all times to uphold the integrity and dignity of the legal
profession by faithfully performing his duties to society, to the bar, to the courts and to his
clients.[16] Exacted from him, as a member of the profession charged with the responsibility
to stand as a shield in the defense of what is right, are such positive qualities of decency,
truthfulness and responsibility that have been compendiously described as moral character.
To achieve such end, every lawyer needs to strive at all times to honor and maintain the
dignity of his profession, and thus improve not only the public regard for the Bar but also the
administration of justice.
On these considerations, the Court may disbar or suspend a lawyer for misconduct,
whether in his professional or private capacity, which shows him to be wanting in moral
character, in honesty, probity, and good demeanor, thus proving unworthy to continue as an
officer of the court.[17]
The power to disbar, however, is one to be exercised with great caution, and only in a
clear case of misconduct which seriously affects the standing and character of the lawyer as
an officer of the Court of and member of the bar. [18] For disbarment proceedings are
intended to afford the parties thereto full opportunity to vindicate their cause before
disciplinary action is taken, to assure the general public that those who are tasked with the
duty of administering justice are competent, honorable, trustworthy men and women in
whom the Courts and the clients may repose full confidence.
In the case of Obusan vs. Obusan, Jr., [19] a complaint for disbarment was filed against a
member of the bar by his wife. She was able to prove that he had abandoned his wife and
their son; and that he had adulterous relations with a married but separated
woman. Respondent was not able to overcome the evidence presented by his wife that he
was guilty of grossly immoral conduct. In another case,[20] a lawyer was disbarred when he
abandoned his lawful wife and cohabited with another woman who had borne him a
child. The Court held that respondent failed to maintain the highest degree of morality
expected and required of a member of a bar.
In the present case, the record shows that despite previous sanctions imposed upon by
this Court, respondent continued his illicit liaison with a woman other than lawfully-wedded
wife. The report of the Commissioner assigned to investigate thoroughly the complaint
found respondent far from contrite; on the contrary, he exhibited a cavalier attitude, even
arrogance; in the face of charges against him. The IBP Board of Governors, tasked to
determine whether he still merited the privileges extended to a member of the legal
profession, resolved the matter against him. For indeed, evidence of grossly immoral
conduct abounds against him and could not be explained away. Keeping a mistress, entering
into another marriage while a prior one still subsists, as well as abandoning and/or
mistreating complainant and their children, show his disregard of family obligations, morality
and decency, the law and the lawyers oath. Such gross misbehavior over a long period of
time clearly shows a serious flaw in respondents character, his moral indifference to scandal
in the community, and his outright defiance of established norms. All these could not but
put the legal profession in disrepute and place the integrity of the administration of justice in
peril, hence the need for strict but appropriate disciplinary action.
IN VIEW THEREOF, respondent Atty. Lauro L. Tapucar is hereby DISBARRED. The Clerk of
Court is directed to strike out his name from the Roll of Attorneys.
SO ORDERED.
MAELOTISEA S. GARRIDO,
Complainant,
- versus -
ATTYS. ANGEL E. GARRIDO and ROMANA P.
VALENCIA,
Respondents.
Maelotisea Sipin Garrido filed a complaint-affidavit [1] and a supplemental affidavit[2] for
disbarment against the respondents Atty. Angel E. Garrido (Atty. Garrido) and Atty. Romana
P.Valencia (Atty. Valencia) before the Integrated Bar of the Philippines (IBP) Committee on
Discipline charging them with gross immorality. The complaint-affidavit states:
1. That I am the legal wife of Atty. Angel E. Garrido by virtue of our
marriage on June 23, 1962 at San Marcelino Church, Ermita, Manila
which was solemnized by Msgr. Daniel Cortes x x x
2. That our marriage blossomed into having us blessed with six (6)
children, namely, Mat Elizabeth, Arnel Angelito, Madeleine Eloiza, Arnel
Angelo, Arnel Victorino and Madonna Angeline, all surnamed Garrido;
3. x x x x
4. That on May, 1991, during my light moments with our children, one of
my daughters, Madeleine confided to me that sometime on the later
part of 1987, an unknown caller talked with her claiming that the former
is a child of my husband. I ignored it and dismissed it as a mere joke. But
when May Elizabeth, also one of my daughters told me that sometime
on August 1990, she saw my husband strolling at the Robinsons
Department Store at Ermita, Manila together with a woman and a child
who was later identified as Atty. Ramona Paguida Valencia and Angeli
Ramona Valencia Garrido, respectively x x x
5. x x x x
6. That I did not stop from unearthing the truth until I was able to secure
the Certificate of Live Birth of the child, stating among others that the
said child is their daughter and that Atty. Angel Escobar Garrido and Atty.
Romana Paguida Valencia were married at Hongkong sometime on
1978.
7. That on June 1993, my husband left our conjugal home and joined Atty.
Ramona Paguida Valencia at their residence x x x
8. That since he left our conjugal home he failed and still failing to give us
our needed financial support to the prejudice of our children who
stopped schooling because of financial constraints.
xxxx
That I am also filing a disbarment proceedings against his mistress as
alleged in the same affidavit, Atty. Romana P. Valencia considering that out
of their immoral acts I suffered not only mental anguish but also besmirch
reputation, wounded feelings and sleepless nights; x x x
In his Counter-Affidavit,[3] Atty. Garrido denied Maelotiseas charges and
imputations. By way of defense, he alleged that Maelotisea was not his legal wife, as he was
already married to Constancia David (Constancia) when he married Maelotisea. He claimed
he married Maelotisea after he and Constancia parted ways. He further alleged that
Maelotisea knew all his escapades and understood his bad boy image before she married
him in 1962. As he and Maelotisea grew apart over the years due to financial problems, Atty.
Garrido met Atty. Valencia. He became close to Atty. Valencia to whom he confided his
difficulties. Together, they resolved his personal problems and his financial difficulties with
his second family. Atty. Garrido denied that he failed to give financial support to his children
with Maelotisea, emphasizing that all his six (6) children were educated in private schools; all
graduated from college except for Arnel Victorino, who finished a special secondary course.
[4]
Atty. Garrido alleged that Maelotisea had not been employed and had not practiced her
profession for the past ten (10) years.
Atty. Garrido emphasized that all his marriages were contracted before he became a
member of the bar on May 11, 1979, with the third marriage contracted after the death of
Constancia on December 26, 1977. Likewise, his children with Maelotisea were born before
he became a lawyer.
In her Counter-Affidavit,[5] Atty. Valencia denied that she was the mistress of Atty.
Garrido. She explained that Maelotisea was not the legal wife of Atty. Garrido since the
marriage between them was void from the beginning due to the then existing marriage of
Atty. Garrido with Constancia. Atty. Valencia claimed that Maelotisea knew of the romantic
relationship between her and Atty. Garrido, as they (Maelotisea and Atty. Valencia) met in
1978. Maelotisea kept silent about her relationship with Atty. Garrido and had maintained
this silence when she (Atty. Valencia) financially helped Atty. Garrido build a house for his
second family. Atty. Valencia alleged that Maelotisea was not a proper party to this suit
because of her silence; she kept silent when things were favorable and beneficial to her. Atty.
Valencia also alleged that Maelotisea had no cause of action against her.
In the course of the hearings, the parties filed the following motions before the IBP
Commission on Bar Discipline:
First, the respondents filed a Motion for Suspension of Proceedings [6] in view of the
criminal complaint for concubinage Maelotisea filed against them, and the Petition for
Declaration of Nullity[7] (of marriage) Atty. Garrido filed to nullify his marriage to Maelotisea.
The IBP Commission on Bar Discipline denied this motion for lack of merit.
Second, the respondents filed a Motion to Dismiss[8] the complaints after the
Regional Trial Court of Quezon City declared the marriage between Atty. Garrido and
Maelotisea an absolute nullity. Since Maelotisea was never the legal wife of Atty. Garrido,
the respondents argued that she had no personality to file her complaints against them. The
respondents also alleged that they had not committed any immoral act since they married
when Atty. Garrido was already a widower, and the acts complained of were committed
before his admission to the bar. The IBP Commission on Bar Discipline also denied this
motion.[9]
Third, Maelotisea filed a motion for the dismissal of the complaints she filed against
the respondents, arguing that she wanted to maintain friendly relations with Atty. Garrido,
who is the father of her six (6) children. [10] The IBP Commission on Bar Discipline likewise
denied this motion.[11]
On April 13, 2004, Investigating Commissioner Milagros V. San Juan (Investigating
Commissioner San Juan) submitted her Report and Recommendation for the respondents
disbarment.[12] The Commission on Bar Discipline of the IBP Board of Governors (IBP Board
of Governors) approved and adopted this recommendation with modification under
Resolution No. XVI-2004-375 dated July 30, 2004. This resolution in part states:
x x x finding the recommendation fully supported by the evidence on record
and the applicable laws and rules, and considering that Atty. Garrido
exhibited conduct which lacks the degree of morality required as members
of the bar, Atty. Angel E. Garrido is hereby DISBARRED for gross immorality.
However, the case against Atty. Romana P. Valencia is hereby DISMISSED for
lack of merit of the complaint.
Atty. Garrido moved to reconsider this resolution, but the IBP Commission on Bar Discipline
denied his motion under Resolution No. XVII-2007-038 dated January 18, 2007.
Atty. Garrido now seeks relief with this Court through the present petition for review. He
submits that under the circumstances, he did not commit any gross immorality that would
warrant his disbarment. He also argues that the offenses charged have prescribed under the
IBP rules.
Additionally, Atty. Garrido pleads that he be allowed on humanitarian considerations
to retain his profession; he is already in the twilight of his life, and has kept his promise to
lead an upright and irreproachable life notwithstanding his situation.
In compliance with our Resolution dated August 25, 2009, Atty. Alicia A. Risos-Vidal
(Atty. Risos-Vidal), Director of the Commission on Bar Discipline, filed her Comment on the
petition. She recommends a modification of the penalty from disbarment to reprimand,
advancing the view that disbarment is very harsh considering that the 77-year old Atty.
Garrido took responsibility for his acts and tried to mend his ways by filing a petition for
declaration of nullity of his bigamous marriage. Atty. Risos-Vidal also notes that no other
administrative case has ever been filed against Atty. Garrido.
THE COURTS RULING
After due consideration, we resolve to adopt the findings of the IBP Board of
Governors against Atty. Garrido, and to reject its recommendation with respect to
Atty. Valencia.

General Considerations
Laws dealing with double jeopardy or with procedure such as the verification of pleadings
and prejudicial questions, or in this case, prescription of offenses or the filing of affidavits of
desistance by the complainant do not apply in the determination of a lawyers qualifications
and fitness for membership in the Bar. [13] We have so ruled in the past and we see no reason
to depart from this ruling. [14] First, admission to the practice of law is a component of the
administration of justice and is a matter of public interest because it involves service to the
public.[15] The admission qualifications are also qualifications for the continued enjoyment of
the privilege to practice law. Second, lack of qualifications or the violation of the standards
for the practice of law, like criminal cases, is a matter of public concern that the State may
inquire into through this Court. In this sense, the complainant in a disbarment case is not a
direct party whose interest in the outcome of the charge is wholly his or her own;
[16]
effectively, his or her participation is that of a witness who brought the matter to the
attention of the Court.
As applied to the present case, the time that elapsed between the immoral acts
charged and the filing of the complaint is not material in considering the qualification of Atty.
Garrido when he applied for admission to the practice of law, and his continuing
qualification to be a member of the legal profession. From this perspective, it is not
important that the acts complained of were committed before Atty. Garrido was admitted to
the practice of law. As we explained in Zaguirre v. Castillo,[17] the possession of good moral
character is both a condition precedent and a continuing requirement to warrant admission
to the bar and to retain membership in the legal profession. Admission to the bar does not
preclude a subsequent judicial inquiry, upon proper complaint, into any question concerning
the mental or moral fitness of the respondent before he became a lawyer. [18] Admission to
the practice only creates the rebuttable presumption that the applicant has all the
qualifications to become a lawyer; this may be refuted by clear and convincing evidence to
the contrary even after admission to the Bar. [19]
Parenthetically, Article VIII Section 5(5) of the Constitution recognizes
the disciplinary authority of the Court over the members of the Bar to be merely incidental
to the Court's exclusive power to admit applicants to the practice of law. Reinforcing the
implementation of this constitutional authority is Section 27, Rule 138 of the Rules of Court
which expressly states that a member of the bar may be disbarred or suspended from his
office as attorney by the Supreme Court for, among others, any deceit, grossly immoral
conduct, or violation of the oath that he is required to take before admission to the practice
of law.
In light of the public service character of the practice of law and the nature of
disbarment proceedings as a public interest concern, Maelotiseas affidavit of desistance
cannot have the effect of discontinuing or abating the disbarment proceedings. As we have
stated, Maelotisea is more of a witness than a complainant in these proceedings. We note
further that she filed her affidavits of withdrawal only after she had presented her evidence;
her evidence are now available for the Courts examination and consideration, and their
merits are not affected by her desistance. We cannot fail to note, too, that Mealotisea filed
her affidavit of desistance, not to disown or refute the evidence she had submitted, but
solely becuase of compassion (and, impliedly, out of concern for her personal financial
interest in continuing friendly relations with Atty. Garrido).
Immoral conduct involves acts that are willful, flagrant, or shameless, and that show
a moral indifference to the opinion of the upright and respectable members of the
community.[20] Immoral conduct is gross when it is so corrupt as to constitute a criminal act,
or so unprincipled as to be reprehensible to a high degree, or when committed under such
scandalous or revolting circumstances as to shock the communitys sense of decency. [21] We
make these distinctions as the supreme penalty of disbarment arising from conduct requires
grossly immoral, not simply immoral, conduct.[22]
In several cases, we applied the above standard in considering lawyers who
contracted an unlawful second marriage or multiple marriages.
In Macarrubo v. Macarrubo,[23] the respondent lawyer entered into multiple
marriages and subsequently used legal remedies to sever them. We ruled that the
respondents pattern of misconduct undermined the institutions of marriage and family
institutions that this society looks up to for the rearing of our children, for the development
of values essential to the survival and well-being of our communities, and for the
strengthening of our nation as a whole. In this light, no fate other than disbarment awaited
the wayward respondent.
In Villasanta v. Peralta,[24] the respondent lawyer married the complainant while his
marriage with his first wife was subsisting. We held that the respondents act of contracting
the second marriage was contrary to honesty, justice, decency and morality.The lack of good
moral character required by the Rules of Court disqualified the respondent from admission
to the Bar.
Similar to Villasanta was the case of Conjuangco, Jr. v. Palma,[25] where the
respondent secretly contracted a second marriage with the daughter of his client in
Hongkong. We found that the respondent exhibited a deplorable lack of that degree of
morality required of members of the Bar. In particular, he made a mockery of marriage a
sacred institution that demands respect and dignity. We also declared his act of contracting a
second marriage contrary to honesty, justice, decency and morality.
In this case, the undisputed facts gathered from the evidence and the admissions of
Atty. Garrido established a pattern of gross immoral conduct that warrants his
disbarment. His conduct was not only corrupt or unprincipled; it was reprehensible to the
highest degree.
First, Atty. Garrido admitted that he left Constancia to pursue his law studies;
thereafter and during the marriage, he had romantic relationships with other women. He
had the gall to represent to this Court that the study of law was his reason for leaving his
wife; marriage and the study of law are not mutually exclusive.
Second, he misrepresented himself to Maelotisea as a bachelor, when in truth he
was already married to Constancia.[26] This was a misrepresentation given as an excuse to
lure a woman into a prohibited relationship.
Third, Atty. Garrido contracted his second marriage with Maelotisea notwithstanding
the subsistence of his first marriage. This was an open admission, not only of an illegal
liaison, but of the commission of a crime.
Fourth, Atty. Garrido engaged in an extra-marital affair with Atty. Valencia while his
two marriages were in place and without taking into consideration the moral and emotional
implications of his actions on the two women he took as wives and on his six (6) children by
his second marriage.
Fifth, instead of making legal amends to validate his marriage with Maelotisea upon
the death of Constancia, Atty. Garrido married Atty. Valencia who bore him a daughter.
Sixth, Atty. Garrido misused his legal knowledge and convinced Atty. Valencia (who
was not then a lawyer) that he was free to marry, considering that his marriage with
Maelotisea was not valid.
Seventh, as the evidence on record implies, Atty. Garrido married Atty. Valencia in
Hongkong in an apparent attempt to accord legitimacy to a union entered into while another
marriage was in place.
Eighth, after admission to the practice of law, Atty. Garrido simultaneously cohabited
and had sexual relations with two (2) women who at one point were both his wedded wives.
He also led a double life with two (2) families for a period of more than ten (10) years.
Lastly, Atty. Garrido petitioned for the nullity of his marriage to Maelotisea. Contrary
to the position advanced by Atty. Alicia A. Risos-Vidal, this was not an act of facing up to his
responsibility or an act of mending his ways. This was an attempt, using his legal knowledge,
to escape liability for his past actions by having his second marriage declared void after the
present complaint was filed against him.
By his actions, Garrido committed multiple violations relating to the legal profession,
specifically, violations of the bar admission rules, of his lawyers oath, and of the ethical rules
of the profession.
He did not possess the good moral character required of a lawyer at the time of his
admission to the Bar.[27] As a lawyer, he violated his lawyers oath, [28] Section 20(a) of Rule 138
of the Rules of Court, [29] and Canon 1 of the Code of Professional Responsibility, [30] all of
which commonly require him to obey the laws of the land. In marrying Maelotisea, he
committed the crime of bigamy, as he entered this second marriage while his first marriage
with Constancia was subsisting. He openly admitted his bigamy when he filed his petition to
nullify his marriage to Maelotisea.
He violated ethical rules of the profession, specifically, Rule 1.01 of the Code of
Professional Responsibility, which commands that he shall not engage in unlawful,
dishonest, immoral or deceitful conduct; Canon 7 of the same Code, which demands
that [a]lawyer shall at all times uphold the integrity and dignity of the legal profession;
Rule 7.03 of the Code of Professional Responsibility, which provides that, [a] lawyer shall
not engage in conduct that adversely reflects on his fitness to practice law, nor should he,
whether in public or private life, behave in a scandalous manner to the discredit of the
legal profession.
As a lawyer, his community looked up to Atty. Garrido with the expectation and that he
would set a good example in promoting obedience to the Constitution and the laws. When
he violated the law and distorted it to cater to his own personal needs and selfish motives,
he discredited the legal profession and created the public impression that laws are mere
tools of convenience that can be used, bended and abused to satisfy personal whims and
desires. In this case, he also used the law to free him from unwanted relationships.
The Court has often reminded the members of the bar to live up to the standards
and norms expected of the legal profession by upholding the ideals and principles embodied
in the Code of Professional Responsibility. [31] Lawyers are bound to maintain not only a high
standard of legal proficiency, but also of morality, including honesty, integrity and fair
dealing.[32] Lawyers are at all times subject to the watchful public eye and community
approbation.[33] Needless to state, those whose conduct both public and private fail this
scrutiny have to be disciplined and, after appropriate proceedings, accordingly penalized. [34]
Atty. Valencia
We agree with the findings of Investigating Commissioner San Juan that Atty. Valencia should
be administratively liable under the circumstances for gross immorality:
x x x The contention of respondent that they were not yet lawyers in March
27, 1978 when they got married shall not afford them exemption from
sanctions, for good moral character is required as a condition precedent to
admission to the Bar. Likewise there is no distinction whether the
misconduct was committed in the lawyers professional capacity or in his
private life. Again, the claim that his marriage to complainant was void ab
initio shall not relieve respondents from responsibility x x x Although the
second marriage of the respondent was subsequently declared null and void
the fact remains that respondents exhibited conduct which lacks that degree
of morality required of them as members of the Bar. [35]
Moral character is not a subjective term but one that corresponds to objective
reality.[36] To have good moral character, a person must have the personal characteristics of
being good. It is not enough that he or she has a good reputation, i.e., the opinion generally
entertained about a person or the estimate in which he or she is held by the public in the
place where she is known.[37] The requirement of good moral character has four general
purposes, namely: (1) to protect the public; (2) to protect the public image of lawyers; (3) to
protect prospective clients; and (4) to protect errant lawyers from themselves. [38] Each
purpose is as important as the other.
Under the circumstances, we cannot overlook that prior to becoming a lawyer,
Atty. Valencia already knew that Atty. Garrido was a married man (either to Constancia or to
Maelotisea), and that he already had a family. As Atty. Garridos admitted confidante, she was
under the moral duty to give him proper advice; instead, she entered into a romantic
relationship with him for about six (6) years during the subsistence of his two marriages. In
1978, she married Atty. Garrido with the knowledge that he had an outstanding second
marriage. These circumstances, to our mind, support the conclusion that she lacked good
moral character; even without being a lawyer, a person possessed of high moral values,
whose confidential advice was sought by another with respect to the latters family
problems, would not aggravate the situation by entering into a romantic liaison with the
person seeking advice, thereby effectively alienating the other persons feelings and affection
from his wife and family.
While Atty. Valencia contends that Atty. Garridos marriage with Maelotisea was null and
void, the fact remains that he took a man away from a woman who bore him six (6)
children. Ordinary decency would have required her to ward off Atty. Garridos advances, as
he was a married man, in fact a twice-married man with both marriages subsisting at that
time; she should have said no to Atty. Garrido from the very start. Instead, she continued her
liaison with Atty. Garrido, driving him, upon the death of Constancia, away from legitimizing
his relationship with Maelotisea and their children. Worse than this, because of Atty.
Valencias presence and willingness, Atty. Garrido even left his second family and six children
for a third marriage with her. This scenario smacks of immorality even if viewed outside of
the prism of law.
We are not unmindful of Atty. Valencias expressed belief that Atty. Garridos second
marriage to Maelotisea was invalid; hence, she felt free to marry Atty. Garrido. While this
may be correct in the strict legal sense and was later on confirmed by the declaration of the
nullity of Atty. Garridos marriage to Maelotisea, we do not believe at all in the honesty of
this expressed belief.
The records show that Atty. Valencia consented to be married in Hongkong, not
within the country. Given that this marriage transpired before the declaration of the nullity
of Atty. Garridos second marriage, we can only call this Hongkong marriage a clandestine
marriage, contrary to the Filipino tradition of celebrating a marriage together with family.
Despite Atty. Valencias claim that she agreed to marry Atty. Garrido only after he showed
her proof of his capacity to enter into a subsequent valid marriage, the celebration of their
marriage in Hongkong[39] leads us to the opposite conclusion; they wanted to marry in
Hongkong for the added security of avoiding any charge of bigamy by entering into the
subsequent marriage outside Philippine jurisdiction. In this regard, we cannot help but note
that Atty. Valencia afterwards opted to retain and use her surname instead of using the
surname of her husband.Atty. Valencia, too, did not appear to mind that her husband did not
live and cohabit with her under one roof, but with his second wife and the family of this
marriage. Apparently, Atty. Valencia did not mind at all sharing her husband with another
woman. This, to us, is a clear demonstration of Atty. Valencias perverse sense of moral
values.
Measured against the definition of gross immorality, we find Atty. Valencias actions
grossly immoral. Her actions were so corrupt as to approximate a criminal act, for she
married a man who, in all appearances, was married to another and with whom he has a
family. Her actions were also unprincipled and reprehensible to a high degree; as the
confidante of Atty. Garrido, she preyed on his vulnerability and engaged in a romantic
relationship with him during the subsistence of his two previous marriages. As already
mentioned, Atty. Valencias conduct could not but be scandalous and revolting to the point of
shocking the communitys sense of decency; while she professed to be the lawfully wedded
wife, she helped the second family build a house prior to her marriage to Atty. Garrido, and
did not object to sharing her husband with the woman of his second marriage.
We find that Atty. Valencia violated Canon 7 and Rule 7.03 of the Code of
Professional Responsibility, as her behavior demeaned the dignity of and discredited the
legal profession. She simply failed in her duty as a lawyer to adhere unwaveringly to the
highest standards of morality. [40] In Barrientos v. Daarol,[41] we held that lawyers, as officers of
the court, must not only be of good moral character but must also be seen to be of good
moral character and must lead lives in accordance with the highest moral standards of the
community. Atty. Valencia failed to live up to these standards before she was admitted to the
bar and after she became a member of the legal profession.
Conclusion
Membership in the Bar is a privilege burdened with conditions. As a privilege
bestowed by law through the Supreme Court, membership in the Bar can be withdrawn
where circumstances concretely show the lawyers lack of the essential qualifications
required of lawyers. We resolve to withdraw this privilege from Atty. Angel E. Garrido and
Atty. Rowena P. Valencia for this reason.
In imposing the penalty of disbarment upon the respondents, we are aware that the
power to disbar is one to be exercised with great caution and only in clear cases of
misconduct that seriously affects the standing and character of the lawyer as a legal
professional and as an officer of the Court. [42]
We are convinced from the totality of the evidence on hand that the present case is
one of them. The records show the parties pattern of grave and immoral misconduct that
demonstrates their lack of mental and emotional fitness and moral character to qualify them
for the responsibilities and duties imposed on lawyers as professionals and as officers of the
court.
While we are keenly aware of Atty. Garridos plea for compassion and his act of
supporting his children with Maelotisea after their separation, we cannot grant his plea. The
extent of his demonstrated violations of his oath, the Rules of Court and of the Code of
Professional Responsibility overrides what under other circumstances are commendable
traits of character.
In like manner, Atty. Valencias behavior over a long period of time unequivocally
demonstrates a basic and serious flaw in her character, which we cannot simply brush aside
without undermining the dignity of the legal profession and without placing the integrity of
the administration of justice into question. She was not an on-looker victimized by the
circumstances, but a willing and knowing full participant in a love triangle whose incidents
crossed into the illicit.
WHEREFORE, premises considered, the Court resolves to:
(1) DISBAR Atty. Angel E. Garrido from the practice of law for gross immorality,
violation of the Lawyers Oath; and violation of Rule 1.01, Canon 7 and Rule 7.03
of the Code of Professional Responsibility; and
(2) DISBAR Atty. Romana P. Valencia from the practice of law for gross immorality,
violation of Canon 7 and Rule 7.03 of the Code of Professional Responsibility.
Let a copy of this Decision be attached to the personal records of Atty. Angel E.
Garrido and Atty. Romana P. Valencia in the Office of the Bar Confidant, and another copy
furnished the Integrated Bar of the Philippines.
The Clerk of Court is directed to strike out the names of Angel E. Garrido and
Rowena P. Valencia from the Roll of Attorneys.
SO ORDERED.
FERDINAND A. CRUZ, 332 Edang St., Pasay City, G.R. No. 154464
Petitioner,
- versus -
JUDGE PRISCILLA MIJARES, Presiding Judge, Regional
Trial Court, Branch 108, Pasay City, Metro Manila,
Public Respondent.
BENJAMIN MINA, JR., 332 Edang St., Pasay City,
Private Respondent.
This is a Petition for Certiorari, Prohibition and Mandamus, with prayer for the issuance of a
writ of preliminary injunction under Rule 65 of the Rules of Court. It was directly filed with
this Court assailing the Resolutions dated May 10, 2002 [1] and July 31, 2002[2] of the Regional
Trial Court (RTC), Branch 108, Pasay City, which denied the appearance of the plaintiff
Ferdinand A. Cruz, herein petitioner, as party litigant, and the refusal of the public
respondent, Judge Priscilla Mijares, to voluntarily inhibit herself from trying the case. No writ
of preliminary injunction was issued by this Court.

The antecedents:
On March 5, 2002, Ferdinand A. Cruz (petitioner) sought permission to enter his appearance
for and on his behalf, before the RTC, Branch 108, Pasay City, as the plaintiff in Civil Case No.
01-0410, for Abatement of Nuisance. Petitioner, a fourth year law student, anchors his claim
on Section 34 of Rule 138 of the Rules of Court [3] that a non-lawyer may appear before any
court and conduct his litigation personally.
During the pre-trial, Judge Priscilla Mijares required the petitioner to secure a
written permission from the Court Administrator before he could be allowed to appear as
counsel for himself, a party-litigant. Atty. Stanley Cabrera, counsel for Benjamin Mina, Jr.,
filed a Motion to Dismiss instead of a pre-trial brief to which petitioner Cruz vehemently
objected alleging that a Motion to Dismiss is not allowed after the Answer had been filed.
Judge Mijares then remarked, Hay naku, masama yung marunong pa sa Huwes. Ok? and
proceeded to hear the pending Motion to Dismiss and calendared the next hearing on May
2, 2002.
On March 6, 2002, petitioner Cruz filed a Manifestation and Motion to Inhibit,
[4]
praying for the voluntary inhibition of Judge Mijares. The Motion alleged that expected
partiality on the part of the respondent judge in the conduct of the trial could be inferred
from the contumacious remarks of Judge Mijares during the pre-trial. It asserts that the
judge, in uttering an uncalled for remark, reflects a negative frame of mind, which engenders
the belief that justice will not be served. [5]
In an Order[6] dated April 19, 2002, Judge Mijares denied the motion for inhibition
stating that throwing tenuous allegations of partiality based on the said remark is not
enough to warrant her voluntary inhibition, considering that it was said even prior to the
start of pre-trial. Petitioner filed a motion for reconsideration [7] of the said order.
On May 10, 2002, Judge Mijares denied the motion with finality. [8] In the same Order,
the trial court held that for the failure of petitioner Cruz to submit the promised document
and jurisprudence, and for his failure to satisfy the requirements or conditions under Rule
138-A of the Rules of Court, his appearance was denied.
In a motion for reconsideration, [9] petitioner reiterated that the basis of his
appearance was not Rule 138-A, but Section 34 of Rule 138. He contended that the two
Rules were distinct and are applicable to different circumstances, but the respondent judge
denied the same, still invoking Rule 138-A, in an Order [10] dated July 31, 2002.
On August 16, 2002, the petitioner directly filed with this Court, the instant petition
and assigns the following errors:
I.
THE RESPONDENT REGIONAL TRIAL COURT GRAVELY ERRED AND ABUSED
ITS DISCRETION WHEN IT DENIED THE APPEARANCE OF THE PETITIONER,
FOR AND IN THE LATTERS BEHALF, IN CIVIL CASE NO. 01-0401 [sic]
CONTRARY TO RULE 138, SECTION 34 OF THE RULES OF COURT, PROVIDING
FOR THE APPEARANCE OF NON-LAWYERS AS A PARTY LITIGANT;
II.
THE RESPONDENT COURT GRAVELY ERRED AND ABUSED ITS DISCRETION
WHEN IT DID NOT VOLUNTARILY INHIBIT DESPITE THE ADVENT OF
JURISPRUDENCE [sic] THAT SUCH AN INHIBITION IS PROPER TO PRESERVE
THE PEOPLES FAITH AND CONFIDENCE TO THE COURTS.
The core issues raised before the Court are: (1) whether the extraordinary writs
of certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules of Court may issue;
and (2) whether the respondent court acted with grave abuse of discretion amounting to
lack or excess of jurisdiction when it denied the appearance of the petitioner as party litigant
and when the judge refused to inhibit herself from trying the case.
This Courts jurisdiction to issue writs of certiorari, prohibition, mandamus and
injunction is not exclusive; it has concurrent jurisdiction with the RTCs and the Court of
Appeals. This concurrence of jurisdiction is not, however, to be taken as an absolute,
unrestrained freedom to choose the court where the application therefor will be directed.
[11]
A becoming regard of the judicial hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against the RTCs should be filed with the Court of Appeals.
[12]
The hierarchy of courts is determinative of the appropriate forum for petitions for the
extraordinary writs; and only in exceptional cases and for compelling reasons, or if
warranted by the nature of the issues reviewed, may this Court take cognizance of petitions
filed directly before it.[13]
Considering, however, that this case involves the interpretation of Section 34, Rule
138 and Rule 138-A of the Rules of Court, the Court takes cognizance of herein petition.
Nonetheless, the petitioner is cautioned not to continue his practice of filing directly before
this Court petitions under Rule 65 when the issue raised can be resolved with dispatch by
the Court of Appeals. We will not tolerate litigants who make a mockery of the judicial
hierarchy as it necessarily delays more important concerns before us.
In resolving the second issue, a comparative reading of Rule 138, Section 34 and Rule 138-A
is necessary.

Rule 138-A, or the Law Student Practice Rule, provides:
RULE 138-A
LAW STUDENT PRACTICE RULE
Section 1. Conditions for Student Practice. A law student who has
successfully completed his 3rd year of the regular four-year prescribed law
curriculum and is enrolled in a recognized law school's clinical legal
education program approved by the Supreme Court, may appear without
compensation in any civil, criminal or administrative case before any trial
court, tribunal, board or officer, to represent indigent clients accepted by
the legal clinic of the law school.
Sec. 2. Appearance. The appearance of the law student authorized by this
rule, shall be under the direct supervision and control of a member of the
Integrated Bar of the Philippines duly accredited by the law school. Any
and all pleadings, motions, briefs, memoranda or other papers to be filed,
must be signed by the supervising attorney for and in behalf of the legal
clinic.
The respondent court held that the petitioner could not appear for himself and on
his behalf because of his failure to comply with Rule 138-A. In denying petitioners
appearance, the court a quo tersely finds refuge in the fact that, on December 18, 1986, this
Court issued Circular No. 19, which eventually became Rule 138-A, and the failure of Cruz to
prove on record that he is enrolled in a recognized schools clinical legal education program
and is under supervision of an attorney duly accredited by the law school.
However, the petitioner insisted that the basis of his appearance was Section 34 of Rule 138,
which provides:
Sec. 34. By whom litigation is conducted. - In the court of a justice of the
peace, a party may conduct his litigation in person, with the aid of an agent
or friend appointed by him for that purpose, or with the aid of an
attorney. In any other court, a party may conduct his litigation
personally or by aid of an attorney, and his appearance must be either
personal or by a duly authorized member of the bar.
and is a rule distinct from Rule 138-A.
From the clear language of this provision of the Rules, it will have to be conceded
that the contention of the petitioner has merit. It recognizes the right of an individual to
represent himself in any case to which he is a party. The Rules state that a party may conduct
his litigation personally or with the aid of an attorney, and that his appearance must either
be personal or by a duly authorized member of the Bar. The individual litigant may
personally do everything in the course of proceedings from commencement to the
termination of the litigation.[14] Considering that a party personally conducting his litigation is
restricted to the same rules of evidence and procedure as those qualified to practice law,
[15]
petitioner, not being a lawyer himself, runs the risk of falling into the snares and hazards
of his own ignorance. Therefore, Cruz as plaintiff, at his own instance, can personally conduct
the litigation of Civil Case No. 01-0410. He would then be acting not as a counsel or lawyer,
but as a party exercising his right to represent himself.
The trial court must have been misled by the fact that the petitioner is a law student
and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred
in applying Rule 138-A, when the basis of the petitioners claim is Section 34 of Rule 138. The
former rule provides for conditions when a law student may appear in courts, while the
latter rule allows the appearance of a non-lawyer as a party representing himself.
The conclusion of the trial court that Rule 138-A superseded Rule 138 by virtue of
Circular No. 19 is misplaced. The Court never intended to repeal Rule 138 when it released
the guidelines for limited law student practice. In fact, it was intended as an addendum to
the instances when a non-lawyer may appear in courts and was incorporated to the Rules of
Court through Rule 138-A.
It may be relevant to recall that, in respect to the constitutional right of an accused
to be heard by himself and counsel, [16] this Court has held that during the trial, the right to
counsel cannot be waived. [17] The rationale for this ruling was articulated in People v.
Holgado,[18] where we declared that 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.
The case at bar involves a civil case, with the petitioner as plaintiff therein. The
solicitous concern that the Constitution accords the accused in a criminal prosecution
obviously does not obtain in a civil case. Thus, a party litigant in a civil case, who insists that
he can, without a lawyers assistance, effectively undertake the successful pursuit of his
claim, may be given the chance to do so. In this case, petitioner alleges that he is a law
student and impliedly asserts that he has the competence to litigate the case
himself. Evidently, he is aware of the perils incident to this decision.

In addition, it was subsequently clarified in Bar Matter 730, that by virtue of Section
34, Rule 138, a law student may appear as an agent or a friend of a party litigant, without
need of the supervision of a lawyer, before inferior courts. Here, we have a law student who,
as party litigant, wishes to represent himself in court. We should grant his wish.
Additionally, however, petitioner contends that the respondent judge committed
manifest bias and partiality by ruling that there is no valid ground for her voluntary inhibition
despite her alleged negative demeanor during the pre-trial when she said: Hay naku,
masama yung marunong pa sa Huwes. Ok? Petitioner avers that by denying his motion, the
respondent judge already manifested conduct indicative of arbitrariness and prejudice,
causing petitioners and his co-plaintiffs loss of faith and confidence in the respondents
impartiality.
We do not agree.
It must be noted that because of this incident, the petitioner filed an administrative
case[19] against the respondent for violation of the Canons of Judicial Ethics, which we
dismissed for lack of merit on September 15, 2002. We now adopt the Courts findings of fact
in the administrative case and rule that there was no grave abuse of discretion on the part of
Judge Mijares when she did not inhibit herself from the trial of the case.
In a Motion for Inhibition, the movant must prove the ground for bias and prejudice
by clear and convincing evidence to disqualify a judge from participating in a particular trial,
[20]
as voluntary inhibition is primarily a matter of conscience and addressed to the sound
discretion of the judge. The decision on whether she should inhibit herself must be based on
her rational and logical assessment of the circumstances prevailing in the case before her.
[21]
Absent clear and convincing proof of grave abuse of discretion on the part of the judge,
this Court will rule in favor of the presumption that official duty has been regularly
performed.
WHEREFORE, the Petition is PARTIALLY GRANTED. The assailed Resolution and
Order of the Regional Trial Court, Branch 108, Pasay City are MODIFIED. Regional Trial Court,
Branch 108, Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner in Civil
Case No. 01-0410 as a party litigant.
No pronouncement as to costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO SANTOCILDES, JR. y SIGA-
AN, accused-appellant.
Where an accused was not duly represented by a member of the Philippine Bar during
trial, the judgment should be set aside and the case remanded to the trial court for a new
trial. A person who misrepresents himself as a lawyer shall be held liable for indirect
contempt of court.
Subject of the present appeal is the decision dated October 29, 1992, of the Regional
Trial Court of Iloilo City, Branch 33, convicting accused-appellant of the crime of rape,
sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the
offended party the amount of P50,000.00 and to pay the costs.
The antecedent facts of the case are as follows:
On February 17, 1992, appellant was charged with the crime of rape [1] of a girl less than
nine (9) years old, committed on December 28, 1991, in the town of Barangay San Luis, San
Joaquin, Iloilo.
Upon arraignment, appellant entered a plea of not guilty. Trial ensued and the
prosecution presented as its witnesses the victim, her mother, her six (6) year-old playmate,
and the medico-legal officer who examined the victim.
For the defense, appellant presented one German Toriales and himself. Appellant
denied committing the rape and claimed that he merely tried to stop the two girls, the
victim and her playmate, from quarreling.
On October 29, 1992, the trial court rendered a decision [2] finding appellant guilty as
charged. The dispositive portion of the decision states:
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of
rape and sentences him to suffer the penalty of reclusion perpetua together its accessory
penalty. The accused is ordered to pay the amount of P50,000.00 to the complainant and
another amount for costs, without subsidiary penalty in case of failure to pay the civil
liability and the cost.
If qualified under Art. 29 of the Revised Penal Code, as amended by R.A. 6127, as amended,
and he has agreed in writing to abide by the same rules imposed upon convicted prisoners,
he shall be credited with the full duration of his preventive imprisonment; otherwise, he
shall only be credited with 4/5 of the same.
SO ORDERED.
Hence, appellant duly filed a Notice of Appeal. [3] In his brief,[4] appellant made the
following assignment of errors:
I. THE HONORABLE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT THE
ACCUSED IS GUILTY OF RAPE INSPITE OF CONFLICTING TESTIMONIES OF THE PRIVATE
COMPLAINANT AND HER WITNESSES ON MATERIAL POINTS.
II. THAT THE ACCUSED-APPELLANT WAS DEPRIVED THOUGH NO FAULT OF HIS OWN TO BE
DEFENDED BY A PERSON AUTHORIZED TO PRACTICE LAW AMOUNTING TO DENIAL OF DUE
PROCESS.
 Considering the importance of the constitutional right to counsel, we shall now first
resolve the issue of proper representation by a member of the bar raised by appellant.
Appellant contends that he was represented during trial by a person named Gualberto
C. Ompong, who for all intents and purposes acted as his counsel and even conducted the
direct examination and cross-examinations of the witnesses. On appeal, however, appellant
secured the services of a new lawyer, Atty. Igmedio S. Prado, Jr., who discovered that
Gualberto C. Ompong is actually not a member of the bar. Further verification with the
Office of the Bar Confidant confirmed this fact. [5] Appellant therefore argues that his
deprivation of the right to counsel should necessarily result in his acquittal of the crime
charged.
The Office of the Solicitor General, on the other hand, maintains that notwithstanding
the fact that appellants counsel during trial was not a member of the bar, appellant was
afforded due process since he has been given an opportunity to be heard and the records
reveal that said person presented the evidence for the defense with the ability of a seasoned
lawyer and in general handled the case of appellant in a professional and skillful manner.
However, the right of the accused to be heard by himself and his counsel, in our view, goes
much deeper than the question of ability or skill. It lies at the heart of our adversarial system
of justice. Where the interplay of basic rights of the individual may collide with the awesome
forces of the state, we need a professional learned in the law as well as ethically committed
to defend the accused by all means fair and reasonable.
On the matter of proper representation by a member of the bar, we had occasion to
resolve a similar issue in the case of Delgado v. Court of Appeals.[6]In Delgado, petitioner and
two others were convicted by the trial court of the crime of estafa thru falsification of public
and/or official documents. One accused did not appeal. Petitioner Delgado and her
remaining co-accused appealed to the Court of Appeals, which affirmed petitioners
conviction but acquitted her co-accused. After entry of judgment, petitioner discovered that
her lawyer was not a member of the bar and moved to set aside the entry of judgment. The
Court of Appeals denied petitioners motion, hence, she filed a petition for certiorari with this
Court. The Court set aside the assailed judgment and remanded the case to the trial court
for a new trial, explaining that -
This is so because an accused person is entitled to be represented by a member of the bar in
a criminal case filed against her before the Regional Trial Court.Unless she is represented by
a lawyer, there is great danger that any defense presented in her behalf will be inadequate
considering the legal perquisites and skills needed in the court proceedings. This would
certainly be a denial of due process.[7]
Indeed, the right to counsel is of such primordial importance that even if an accused
was represented by three successive counsels from the Public Attorneys Office, the Court
has ordered the remand of a rape case when it found that accused was given mere
perfunctory representation by aforesaid counsels such that appellant was not properly and
effectively accorded the right to counsel. In the recent en banc case of People v. Bermas, G.R.
No. 120420, April 21, 1999, the Court, speaking through Justice Vitug, admonished three (3)
PAO lawyers for failing to genuinely protect the interests of the accused and for having fallen
much too short of their responsibility as officers of the court and as members of the
Bar. Verily, we can do no less where the accused was not even duly represented by a
certified member of the Philippine Bar, no matter how zealous his representation might have
been.
The presence and participation of counsel in criminal proceedings should never be
taken lightly.[8] Even the most intelligent or educated man may have no skill in the science of
the law, particularly in the rules of procedure, and, without counsel, he may be convicted
not because he is guilty but because he does not know how to establish his innocence. [9] The
right of an accused to counsel is guaranteed to minimize the imbalance in the adversarial
system where the accused is pitted against the awesome prosecutory machinery of the
State.[10] Such a right proceeds from the fundamental principle of due process which basically
means that a person must be heard before being condemned. The due process requirement
is a part of a persons basic rights; it is not a mere formality that may be dispensed with or
performed perfunctorily. [11]
The right to counsel of an accused is enshrined in no less than Article III, Sections 12
and 14 (2) of the 1987 Constitution. This constitutional mandate is reflected in Section 1 of
Rule 115 of the 1985 Rules of Criminal Procedure which declares the right of the accused at
the trial to be present in person and by counsel at every stage of the proceedings from the
arraignment to the promulgation of judgment. In turn, Section 5 of Article VIII of the 1987
Constitution vests the power to promulgate rules concerning the admission to the practice
of law to the Supreme Court. Section 1 of Rule 138 of the Rules of Court explicitly states who
are entitled to practice law in the Philippines, and Section 2 thereof clearly provides for the
requirements for all applicants for admission to the bar. Jurisprudence has also held that the
right to practice law is not a natural or constitutional right but is in the nature of a privilege
or franchise. It is limited to persons of good moral character with special qualifications duly
ascertained and certified. The right does not only presuppose in its possessor integrity, legal
standing and attainment, but also the exercise of a special privilege, highly personal and
partaking of the nature of a public trust. [12]Indeed, so strict is the regulation of the practice of
law that in Beltran, Jr. v. Abad,[13] a Bar candidate who has already successfully hurdled the
Bar examinations but has not yet taken his oath and signed the roll of attorneys, and who
was caught in the unauthorized practice of law was held in contempt of court. Under Section
3 (e) of Rule 71 of the Rules of Court, a person who undertakes the unauthorized practice of
law is liable for indirect contempt of court for assuming to be an attorney and acting as such
without authority.
WHEREFORE, the assailed judgment is SET ASIDE, and the case is hereby REMANDED to
the trial court for new trial.
With respect to the unauthorized practice of law by the person named Gualberto C.
Ompong in connection with this case, the local Chapter of the Integrated Bar of the
Philippines of Iloilo City is DIRECTED to conduct a prompt and thorough investigation
regarding this matter and to report its recommendations to the Court within ninety (90) days
from notice of this order. Let all concerned parties, including the Office of the Bar Confidant,
be each furnished a copy of this Decision for their appropriate action.
No pronouncement as to costs. SO ORDERED.
G.R. No. L-23959 November 29, 1971
PHILIPPINE ASSOCIATION OF FREE LABOR UNIONS (PAFLU), ENRIQUE ENTILA &
VICTORIANO TENAZAS petitioners,
vs.
BINALBAGAN ISABELA SUGAR COMPANY, COURT OF INDUSTRIAL RELATIONS, & QUINTIN
MUNING respondents.
Cipriano Cid & Associates for petitioners.
Ceferino Magat and Manuel C. Gonzales for respondent Quintin Muning.
REYES, J.B.L., J.:
May a non-lawyer recover attorney's fees for legal services rendered? This is the issue
presented in this petition for review of an order, dated 12 May 1964, and the en
banc resolution, dated 8 December 1964, of the Court of Industrial Relations, in its Case No.
72-ULP-Iloilo, granting respondent Quintin Muning a non-lawyer, attorney's fees for
professional services in the said case.
The above-named petitioners were complainants in Case No. 72-ULP-Iloilo entitled, "PAFLU
et al. vs. Binalbagan Isabela Sugar Co., et al." After trial, the Court of Industrial Relations
rendered a decision, on 29 March 1961, ordering the reinstatement with backwages of
complainants Enrique Entila and Victorino Tenazas. Said decision became final. On 18
October 1963, Cipriano Cid & Associates, counsel of record for the winning complainants,
filed a notice of attorney's lien equivalent to 30% of the total backwages. On 22 November
1963, Atty. Atanacio Pacis also filed a similar notice for a reasonable amount. Complainants
Entila and Tenazas on 3 December 1963, filed a manifestation indicating their non-objection
to an award of attorney's fees for 25% of their backwages, and, on the same day, Quentin
Muning filed a "Petition for the Award of Services Rendered" equivalent to 20% of the
backwages. Munings petition was opposed by Cipriano Cid & Associates the ground that he
is not a lawyer.
The records of Case No. 72-ULP-Iloilo show that the charge was filed by Cipriano Cid &
Associates through Atty. Atanacio Pacis. All the hearings were held in Bacolod City and
appearances made in behalf of the complainants were at first by Attorney Pacis and
subsequently by respondent Quintin Muning.
On 12 May 1964, the Court of Industrial Relations awarded 25% of the backwages as
compensation for professional services rendered in the case, apportioned as follows:
Attys. Cipriano Cid & Associates ............................................. 10%
Quintin Muning ......................................................................... 10%
Atty. Atanacio Pacis ................................................................. 5%
The award of 10% to Quintin Muning who is not a lawyer according to the order, is sought to
be voided in the present petition.
Respondent Muning moved in this Court to dismiss the present petition on the ground of
late filing but his motion was overruled on 20 January 1965. 1 He asked for reconsideration,
but, considering that the motion contained averments that go into the merits of the case,
this Court admitted and considered the motion for reconsideration for all purposes as
respondent's answer to the petitioner for review. 2 The case was considered submitted for
decision without respondent's brief.3
Applicable to the issue at hand is the principle enunciated in Amalgamated Laborers'
Association, et al. vs. Court of Industrial Relations, et al., L-23467, 27 March 1968,4 that an
agreement providing for the division of attorney's fees, whereby a non-lawyer union
president is allowed to share in said fees with lawyers, is condemned by Canon 34 of Legal
Ethics and is immoral and cannot be justified. An award by a court of attorney's fees is no
less immoral in the absence of a contract, as in the present case.
The provision in Section 5(b) of Republic Act No. 875 that —
In the proceeding before the Court or Hearing Examiner thereof, the parties
shall not be required to be represented by legal counsel ...
is no justification for a ruling, that the person representing the party-litigant in the Court of
Industrial Relations, even if he is not a lawyer, is entitled to attorney's fees: for the same
section adds that —
it shall be the duty and obligation of the Court or Hearing Officer to examine
and cross examine witnesses on behalf of the parties and to assist in the
orderly presentation of evidence.
thus making it clear that the representation should be exclusively entrusted to duly qualified
members of the bar.
The permission for a non-member of the bar to represent or appear or defend in the said
court on behalf of a party-litigant does not by itself entitle the representative to
compensation for such representation. For Section 24, Rule 138, of the Rules of Court,
providing —
Sec. 24. Compensation of attorney's agreement as to fees. — An attorney
shall be entitled to have and recover from his client no more than a
reasonable compensation for his services, ...
imports the existence of an attorney-client relationship as a condition to the recovery of
attorney's fees. Such a relationship cannot exist unless the client's representative in court be
a lawyer. Since respondent Muning is not one, he cannot establish an attorney-client
relationship with Enrique Entila and Victorino Tenezas or with PAFLU, and he cannot, organization is permitted to institute an action in the industrial court, 12 on behalf of its
therefore, recover attorney's fees. Certainly public policy demands that legal work in members; and the union was organized "for the promotion of the emloyees' moral, social
representation of parties litigant should be entrusted only to those possessing tested and economic well-being"; 13 hence, if an award is disadvantageous to its members, the
qualifications and who are sworn, to observe the rules and the ethics of the profession, as union may prosecute an appeal as an aggrieved party, under Section 6, Republic Act 875,
well as being subject to judicial disciplinary control for the protection of courts, clients and which provides:
the public. Sec. 6. Unfair Labor Practice cases — Appeals. — Any person aggrieved by
On the present issue, the rule in American jurisdictions is persuasive. There, it is stated: any order of the Court may appeal to the Supreme Court of the
But in practically all jurisdictions statutes have now been enacted prohibiting Philippines ...,
persons not licensed or admitted to the bar from practising law, and under since more often than not the individual unionist is not in a position to bear the financial
statutes of this kind, the great weight of authority is to the effect that burden of litigations.
compensation for legal services cannot be recovered by one who has not Petitioners allege that respondent Muning is engaged in the habitual practice of law before
been admitted to practice before the court or in the jurisdiction the services the Court of Industrial Relations, and many of them like him who are not licensed to
were rendered. 5 practice, registering their appearances as "representatives" and appearing daily before the
No one is entitled to recover compensation for services as an attorney at law said court. If true, this is a serious situation demanding corrective action that respondent
unless he has been duly admitted to practice ... and is an attorney in good court should actively pursue and enforce by positive action to that purpose. But since this
standing at the time.6 matter was not brought in issue before the court a quo, it may not be taken up in the
The reasons are that the ethics of the legal profession should not be violated; 7 that acting as present case. Petitioners, however, may file proper action against the persons alleged to be
an attorney with authority constitutes contempt of court, which is punishable by fine or illegally engaged in the practice of law.
imprisonment or both,8 and the law will not assist a person to reap the fruits or benefit of an WHEREFORE, the orders under review are hereby set aside insofar as they awarded 10% of
act or an act done in violation of law; 9 and that if were to be allowed to non-lawyers, it the backwages as attorney's fees for respondent Quintin Muning. Said orders are affirmed in
would leave the public in hopeless confusion as to whom to consult in case of necessity and all other respects. Costs against respondent Muning.
also leave the bar in a chaotic condition, aside from the fact that non-lawyers are not
amenable to disciplinary measures. 10
And the general rule above-stated (referring to non-recovery of attorney's
fees by non-lawyers) cannot be circumvented when the services were purely
legal, by seeking to recover as an "agent" and not as an attorney. 11
The weight of the reasons heretofore stated why a non-lawyer may not be awarded
attorney's fees should suffice to refute the possible argument that appearances by non-
lawyers before the Court of Industrial Relations should be excepted on the ground that said
court is a court of special jurisdiction; such special jurisdiction does not weigh the aforesaid
reasons and cannot justify an exception.
The other issue in this case is whether or not a union may appeal an award of attorney's fees
which are deductible from the backpay of some of its members. This issue arose because it
was the union PAFLU, alone, that moved for an extension of time to file the present petition
for review; union members Entila and Tenazas did not ask for extension but they were
included as petitioners in the present petition that was subsequently filed, it being
contended that, as to them (Entila and Tenazas), their inclusion in the petition as co-
petitioners was belated.
We hold that a union or legitimate labor organization may appeal an award of attorney's fees
which are deductible from the backpay of its members because such union or labor