CASES REPORTED

SUPREME COURT REPORTS ANNOTATED

____________________

A.M. No. 10-1-13-SC. March 2, 2010.*

RE: SUBPOENA DUCES TECUM DATED JANUARY 11,

2010 OF ACTING DIRECTOR ALEU A. AMANTE, PIAB-
C, OFFICE OF THE OMBUDSMAN

Ombudsman; The office of the Ombudsman has full authority to

issue subpoenas including subpoena duces tecum for compulsory
attendance of witnesses and the production of documents and
information relating to matters under its investigation; Under the
Rules of Court, the issuance of subpoenas, including a subpoena
duces tecum operates under the requirements of reasonableness and
relevance.·In the appropriate case, the Office of the Ombudsman
has full authority to issue subpoenas, including subpoena duces
tecum, for compulsory attendance of witnesses and the production of
documents and information relating to matters under its
investigation. The grant of this authority, however, is not unlimited,
as the Ombudsman must nec-

_______________

* EN BANC.

2 SUPREME COURT REPORTS ANNOTATED

Re: Subpoena Duces Tecum Dated January 11, 2010 of Acting

Director Aleu A. Amante, PIAB-C, Office of the Ombudsman
essarily observe and abide by the terms of the Constitution and our
laws, the Rules of Court and the applicable jurisprudence on the
issuance, service, validity and efficacy of subpoenas. Under the
Rules of Court, the issuance of subpoenas, including a subpoena
duces tecum, operates under the requirements of reasonableness
and relevance. For the production of documents to be reasonable
and for the documents themselves to be relevant, the matter under
inquiry should, in the first place, be one that the Ombudsman can
legitimately entertain, investigate and rule upon.
Same; Supreme Court; The Court, by constitutional design is
supreme in its task of adjudication; judicial power is vested solely in
the Supreme Court and in such lower courts as may be established
by law; This constitutional scheme cannot be thwarted or subverted
through a criminal complaint that under the guise of imputing a
misdeed on the Court and its members seeks to revive and re-litigate
matters that have long been laid to rest by the Court.·A first step in
considering whether a criminal complaint (and its attendant
compulsory processes) is within the authority of the Ombudsman to
entertain (and to issue), is to consider the nature of the powers of
the Supreme Court. This Court, by constitutional design, is
supreme in its task of adjudication; judicial power is vested solely in
the Supreme Court and in such lower courts as may be established
by law. Judicial power includes the duty of the courts, not only to
settle actual controversies, but to determine whether grave abuse of
discretion amounting to lack or excess of jurisdiction has been
committed in any branch or instrumentality of government. As a
rule, all decisions and determinations in the exercise of judicial
power ultimately go to and stop at the Supreme Court whose
judgment is final. This constitutional scheme cannot be
thwarted or subverted through a criminal complaint that,
under the guise of imputing a misdeed to the Court and its
Members, seeks to revive and re-litigate matters that have
long been laid to rest by the Court. Effectively, such criminal
complaint is a collateral attack on a judgment of this Court that, by
constitutional mandate, is final and already beyond question.
Same; Same; Only the Supreme Court·not the Ombudsman·
can declare a Supreme Court judgment to be unjust.·Consistent
with the nature of the power of this Court under our constitutional

VOL. 614, March 2, 2010 3

Re: Subpoena Duces Tecum Dated January 11, 2010 of Acting

 Director Aleu A. Amante, PIAB-C, Office of the Ombudsman

scheme, only this Court·not the Ombudsman·can declare a

Supreme Court judgment to be unjust.
Same; Same; Members of the Court are not absolutely immune
from suit during their term; The Constitution provides that the
appropriate recourse against them is to seek their removal from
office if they are guilty of culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes or betrayal
of public trust.·Under these rulings, a criminal complaint for
violation of Section 3(e) of RA 3019, based on the legal correctness of
the official acts of Justices of the Supreme Court, cannot prosper and
should not be entertained. This is not to say that Members of the
Court are absolutely immune from suit during their term, for they
are not. The Constitution provides that the appropriate recourse
against them is to seek their removal from office if they are guilty of
culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust. Only after
removal can they be criminally proceeded against for their
transgressions.
Same; Same; Republic Act No. 6770 specially grants the
Ombudsman the authority to investigate impeachable officers but
only when such investigation is warranted.·Section 22 of Republic
Act No. 6770, in fact, specifically grants the Ombudsman the
authority to investigate impeachable officers, but only when such
investigation is warranted.
Same; Same; The Supreme Court is the highest court of the land
with the power to review, revise, reverse, modify or affirm an appeal
or certiorari, as the law or the Rules of Court may provide, final
judgments and orders of the lower courts; Instances when the
Supreme Court may exercise the power over the factual findings of
the lower courts among other prerogative.·The Supreme Court is
the highest court of the land with the power to review, revise,
reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of the lower
courts. It has the authority to promulgate rules on practice,
pleadings and admission to the bar, and suspend the operation of
these rules in the interest of justice. Jurisprudence holds, too, that
the Supreme Court may exercise these powers over the factual
findings of the lower courts, among other prerogatives, in the
following instances: (1) when the findings are grounded entirely on
speculations, surmises,

4
4 SUPREME COURT REPORTS ANNOTATED

Re: Subpoena Duces Tecum Dated January 11, 2010 of Acting

Director Aleu A. Amante, PIAB-C, Office of the Ombudsman

or conjectures; (2) when the inference made is manifestly mistaken,

absurd of impossible; (3) when there is grave abuse of discretion; (4)
when the judgment is based on a misappreciation of facts; (5) when
the findings of fact are conflicting; (6) when, in making its findings,
the same are contrary to the admissions of both appellant and
appellee; (7) when the findings are contrary to those of the trial
court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitionerÊs main and reply
briefs are not disputed by the respondent; and (10) when the
findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record.
Same; Anti-Graft and Corrupt Practices Act (Republic Act No.
3019); Two ways when a public official can violate Section 3 of
Republic Act No. 3019.·A public official can violate Section 3(e) of
Republic Act No. 3019 in two ways: (1) by causing undue injury to
any party, including the Government; or (2) by giving any private
party any unwarranted benefit, advantage or preference; in either
case, these acts must be committed through manifest partiality,
evident bad faith, or gross and inexcusable negligence.
Administrative Law; Attorneys; ComplainantsÊ plain disregard,
misuse and misrepresentation of constitutional provisions constitute
serious misconduct that reflects on their fitness for continued
membership in the Philippine Bar.·The complainantsÊ errors do not
belong to the genre of plain and simple errors that lawyers commit
in the practice of their profession. Their plain disregard, misuse and
misrepresentation of constitutional provisions constitute serious
misconduct that reflects on their fitness for continued membership
in the Philippine Bar. At the very least, their transgressions are
blatant violations of Rule 10.02 of the Code of Professional
Responsibility.

ADMINISTRATIVE MATTER in the Supreme Court. Sub​-

poena Duces Tecum Dated January 11, 2010 Issued by
the Office of the Ombudsman.
The facts are stated in the resolution of the Court.

5
 VOL. 614, March 2, 2010 5
Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

RESOLUTION
PER CURIAM:
Before us for consideration are the interrelated matters
listed below.
a. The subpoena duces tecum (dated January 11,
2010 and received by this Court on January 18, 2010),
issued by the Office of the Ombudsman on the
„Chief, Office of the Administrative Services or
AUTHORIZED REPRESENTATIVE, Supreme Court,
Manila,‰ for the submission to the Office of the
Ombudsman of the latest Personal Data Sheets and
last known forwarding address of former Chief
Justice Hilario G. Davide, Jr. and former Associate
Justice Ma. Alicia Austria-Martinez. The subpoena
duces tecum was issued in relation with criminal complaint
under (b) below, pursuant to Section 13, Article XI of the
Constitution and Section 15 of Republic Act No. 6770. The
Office of the Administrative Services (OAS) referred the
matter to us on January 21, 2010 with a request for
clearance to release the specified documents and
information.
b. Copy of the criminal complaint entitled Oliver
O. Lozano and Evangeline Lozano-Endriano v.
Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J, cited
by the Ombudsman as basis for the the subpoena duces
tecum it issued. We secured a copy of this criminal
complaint from the Ombudsman to determine the legality
and propriety of the subpoena duces tecum sought.
c. Order dated February 4, 2010 (which the Court
received on February 9, 2010), signed by Acting
Director Maribeth Taytaon-Padios of the Office of
the Ombudsman (with the approval of Ombudsman
Ma. Merceditas Navarro-Gutierrez), dismissing the
Lozano complaint and referring it to the Supreme
Court for appropriate action. The order was premised
on the Memo-

6 SUPREME COURT REPORTS ANNOTATED

 Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

randum1 issued on July 31, 2003 by Ombudsman Simeon

Marcelo who directed that all complaints against judges
and other members of the Judiciary be immediately
dismissed and referred to the Supreme Court for
appropriate action.

Our Ruling

I. The Subpoena Duces Tecum

In light of the OmbudsmanÊs dismissal order of February
4, 2010, any question relating to the legality and propriety
of the subpoena duces tecum the Ombudsman issued has
been rendered moot and academic. The subpoena duces
tecum merely drew its life and continued viability from the
underlying criminal complaint, and the complaintÊs
dismissal·belated though it may be·cannot but have the
effect of rendering the need for the subpoena duces tecum
academic.
As guide in the issuance of compulsory processes to
Members of this Court, past and present, in relation to
complaints touching on the exercise of our judicial
functions, we deem it appropriate to discuss for the record
the extent of the OmbudsmanÊs authority in these types of
complaints.
In the appropriate case, the Office of the Ombudsman
has full authority to issue subpoenas, including subpoena
duces tecum, for compulsory attendance of witnesses and
the production of documents and information relating to
matters

_______________

1 The pertinent part of the Memorandum reads:

Henceforth, on the basis of the foregoing, and in keeping with
the spirit of the stated doctrine, all criminal complaints against
judged and other members of the Supreme Court shall be
immediately DISMISSED and REFERRED to the Supreme
Court for appropriate action. The dismissal shall not in any
manner touch on the merits of the complaint, and shall be made
for the sole purpose of referring the same to the Supreme Court.
(emphasis found in the original.)
 7

VOL. 614, March 2, 2010 7

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

under its investigation.2 The grant of this authority,

however, is not unlimited, as the Ombudsman must
necessarily observe and abide by the terms of the
Constitution and our laws, the Rules of Court and the
applicable jurisprudence on the issuance, service, validity
and efficacy of subpoenas. Under the Rules of Court, the
issuance of subpoenas, including a subpoena duces tecum,
operates under the requirements of rea-

_______________

2 Section 15 of Rep. Act No. 6770 reads:

Section 15. Powers, Functions and Duties.·The Office of the
Ombudsman shall have the following powers functions and duties:
xxxx
(4)  Direct the officer concerned, in any appropriate
case, and subject to such limitations as it may provide in its
rules of procedure, to furnish it with copies of documents
relating to contracts or transactions entered into by his
office involving the disbursement or use of public funds or
properties, and report any irregularity to the Commission
on Audit for appropriate action;
(5)  Request any government agency for assistance and
information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent
records and documents.
Paragraphs 4 and 5 of Section 13, Rule XI of the Constitution
are similarly phrased:
Section 13. The Office of the Ombudsman shall have the
following functions and duties:
xxxx
(4)  Direct the officer concerned, in any appropriate
case, and subject to such limitations as may be provided by
law, to furnish it with copies of documents relating to
contracts or transactions entered into by his office involving
the disbursement or use of public funds or properties, and
report any irregularity to the Commission on Audit for
 appropriate action.
(5) Request any government agency for assistance and
information in the discharge of its responsibilities, and to
examine, if necessary, pertinent records and information.

8 SUPREME COURT REPORTS ANNOTATED

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

sonableness and relevance.3 For the production of

documents to be reasonable and for the documents
themselves to be relevant, the matter under inquiry should,
in the first place, be one that the Ombudsman can
legitimately entertain, investigate and rule upon.
In the present case, the „matter‰ that gave rise to the
issuance of a subpoena duces tecum was a criminal
complaint filed by the complainants Lozano for the alleged
violation by retired Supreme Court Chief Justice Hilario
Davide, Jr. and retired Associate Justice Ma. Alicia
Austria-Martinez of Section 3(e) of R.A. 3019, as amended
(the Anti-Graft and Corrupt Practices Act).
A first step in considering whether a criminal complaint
(and its attendant compulsory processes) is within the
authority of the Ombudsman to entertain (and to issue), is
to consider the nature of the powers of the Supreme Court.
This Court, by constitutional design, is supreme in its task
of adjudication; judicial power is vested solely in the
Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the
courts, not only to settle actual controversies, but to
determine whether grave abuse of discretion amounting to
lack or excess of jurisdiction has been committed in any
branch or instrumentality of government.4 As a rule, all
decisions and determinations in the exercise of judicial
power ultimately go to and stop at the Supreme Court
whose judgment is final. This constitutional scheme
cannot be thwarted or subverted through a criminal
complaint that, under the guise of imputing a
misdeed to the Court and its Members, seeks to revive
and re-litigate matters that have long been laid to
rest by the Court. Effectively, such criminal complaint is a
collateral attack on a judgment of this Court that, by
constitutional mandate, is final and already beyond
question.

_______________

3 See: Sections 3 and 4, Rule 21, Rules of Court.

4 Constitution, Article VIII, Section 1.

VOL. 614, March 2, 2010 9

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

A simple jurisprudential research would easily reveal

that this Court has had the occasion to rule on the liability
of Justices of the Supreme Court for violation of Section
3(e) of R.A. 3019·the very same provision that the
complainants Lozano invoke in this case.
In the case of In re Wenceslao Laureta,5 the client of
Atty. Laureta filed a complaint with the Tanodbayan
charging Members of the Supreme Court with violation of
Section 3(e) of Republic Act No. 3019 for having knowingly,
deliberately and with bad faith rendered an unjust
resolution in a land dispute. The Court unequivocally ruled
that insofar as this Court and its Divisions are concerned, a
charge of violation of the Anti-Graft and Corrupt Practices
Act on the ground that such collective decision is „unjust‰
should not prosper; the parties cannot „relitigate in
another forum the final judgment of the Court,‰ as to do so
is to subordinate the Court, in the exercise of its judicial
functions, to another body.6

_______________

5 232 Phil. 353; 148 SCRA 382 (1987).

6 To quote the pertinent portions of Laureta, pp. 384-388:
As aptly declared in the Chief JusticeÊs Statement of December
24, 1986, which the Court hereby adopts in toto, „It is elementary
that the Supreme Court is supreme·the third great department
of government entrusted exclusively with the judicial power to
adjudicate with finality all justiciable disputes public and private.
No other department or agency may pass upon its judgments or
declare them Âunjust.Ê ‰ It is elementary that „(A)s has ever been
 stressed since the early case of Arnedo v. Llorente (18 Phil. 257,
263 [1911]) Âcontrolling and irresistible reasons of public policy and
of sound practice in the courts demand that at the risk of
occasional error, judgment of courts determining controversies
submitted to them should become final at some definite time fixed
by law or by a rule of practice recognized by law, so as to be
thereafter beyond the control even of the court which rendered
them for the purpose of correcting errors of fact or of law, into
which, in the opinion of the court it may have fallen⁄.‰
Respondents should have known that the provisions of Article
204 of the Revised Penal Code as to Ârendering knowingly unjust
judgmentÊ refer to an individual judge who does so „in any

10

10 SUPREME COURT REPORTS ANNOTATED

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

The case In re Joaquin T. Borromeo7 reiterates the

Laureta ruling, particularly that (1) judgments of the
Supreme Court

_______________

case submitted to him for decision‰ and even then, it is not the
prosecutor who would pass judgment on the „unjustness‰ of the
decision rendered by him but the proper appellate court with
jurisdiction to review the same, either of the Court of Appeals
and/or the Supreme Court. Respondents should likewise know that
said penal article has no application to the members of a
collegiate court such as this Court or its Divisions who reach
their conclusions in consultation and accordingly render their
collective judgment after due deliberation. It also follows,
consequently, that a charge of violation of the Anti-Graft
and Corrupt Practices Act on the ground that such a
collective decision is „unjust‰ cannot prosper. (emphasis
supplied)
xxxx
To subject to the threat and ordeal of investigation and
prosecution, a judge, more so a member of the Supreme Court for
official acts done by him in good faith and in regular exercise of
official duty and judicial functions is to subvert and undermine the
very independence of the judiciary, and subordinate the judiciary
 to the executive. xxxx
To allow litigants to go beyond the CourtÊs resolution and claim
that the members acted „with deliberate bad faith‰ and rendered
an „unjust resolution‰ in disregard or violation of the duty of their
high office to act upon their own independent consideration and
judgment of the matter at hand would be to destroy the
authenticity, integrity and conclusiveness of such collegiate acts
and resolution and to disregard utterly the presumption of regular
performance of official duty. To allow such collateral attack would
destroy the separation of powers and undermine the role of the
Supreme Court as the final arbiter of all justiciable disputes.
Dissatisfied litigants and/or their counsels cannot without
violating the separation of powers mandated by the Constitution
relitigate in another forum the final judgment of this Court
on legal issues submitted by them and their adversaries for final
determination to and by the Supreme Court and which fall within
judicial power to determine and adjudicate exclusively vested by
the Constitution in the Supreme Court and in such inferior courts
as may be established by law.
7 311 Phil. 441, 509; 241 SCRA 405 (1995).

11

VOL. 614, March 2, 2010 11

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

are not reviewable; (2) administrative, civil and criminal

complaints against a judge should not be turned into
substitutes for appeal; (3) only courts may declare a
judgment unjust; and (4) the absurdity of the situation
where the Ombudsman is made to determine whether or
not a judgment of the Court is unjust. The Court further
discussed the requisites for the prosecution of judges, as
follows:

„That is not to say that it is not possible at all to prosecute judges

for this impropriety, of rendering an unjust judgment or
interlocutory order; but, taking account of all the foregoing
considerations, the indispensable requisites are that there be a final
declaration by a competent court in some appropriate proceeding of
the manifestly unjust character of the challenged judgment or
order, and there be also evidence of malice and bad faith, ignorance
or inexcusable negligence on the part of the judge in rendering said
judgment or order.‰

Thus, consistent with the nature of the power of this Court

under our constitutional scheme, only this Court·not the
Ombudsman·can declare a Supreme Court judgment to be
unjust.
In Alzua v. Arnalot,8 the Court ruled that „judges of
superior and general jurisdiction are not liable to respond
in civil action for damages, and provided this rationale for
this ruling: Liability to answer to everyone who might feel
himself aggrieved by the action of the judge would be
inconsistent with the possession of this freedom and would
destroy that independence without which no judiciary can
be either respectable or useful.‰ The same rationale applies
to the indiscriminate attribution of criminal liability to
judicial officials.
Plainly, under these rulings, a criminal complaint for
violation of Section 3(e) of RA 3019, based on the legal
correctness of the official acts of Justices of the Supreme
Court, cannot prosper and should not be entertained. This
is not to say that Members of the Court are absolutely
immune from suit dur-

_______________

8 21 Phil. 308, 326 (1912).

12

12 SUPREME COURT REPORTS ANNOTATED

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

ing their term, for they are not. The Constitution provides
that the appropriate recourse against them is to seek their
removal from office if they are guilty of culpable violation of
the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust.9 Only after
removal can they be criminally proceeded against for their
transgressions. While in office and thereafter, and for their
official acts that do not constitute impeachable offenses,
recourses against them and their liabilities therefor are as
defined in the above rulings.
Section 22 of Republic Act No. 6770, in fact, specifically
grants the Ombudsman the authority to investigate
impeachable officers, but only when such investigation is
warranted:

„Section 22. Investigatory Power.·The Office of the

Ombudsman shall have the power to investigate any serious
misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for
impeachment, if warranted.‰

Conversely, if a complaint against an impeachable officer is

unwarranted for lack of legal basis and for clear
misapplication of law and jurisprudence, the Ombudsman
should spare these officers from the harassment of an
unjustified investigation. The present criminal complaint
against the retired Justices is one such case where an
investigation is not warranted, based as it is on the legal
correctness of their official acts, and the Ombudsman
should have immediately recognized the criminal complaint
for what it is, instead of initially proceeding with its
investigation and issuing a subpoena duces tecum.

_______________

9 Constitution, Article XI, Section 2.

13

VOL. 614, March 2, 2010 13

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

II. The OmbudsmanÊs Dismissal

of the Criminal Complant
As the OmbudsmanÊs dismissal of the criminal
complaint (Oliver O. Lozano and Evangeline Lozano-
Endriano v. Hilario G. Davide, Jr., et al., OMB-C-C-09-
0527-J) clearly implied, no complete dismissal took place as
the matter was simply „referred to the Supreme Court for
appropriate action.‰
Although it was belatedly made, we cannot fault this
Ombudsman action for the reasons we have already
discussed above. While both accused are now retired from
the service, the complaint against them still qualifies for
exclusive consideration by this Court as the acts
complained of spring from their judicial actions while they
were with the Court. From this perspective, we therefore
pass upon the prima facie merits of the complainants
LozanoÊs criminal complaint.
a. Grounds for the Dismissal of the Complaint
By its express terms, the criminal complaint stemmed
from the participation of the accused in the Resolution the
First Division of this Court issued in Heirs of Antonio Pael
v. Court of Appeals, docketed as G.R. Nos. 133547 and
133843. The retired Chief Justice and retired Associate
Justice allegedly committed the following unlawful acts:

1) Overturning the findings of fact of the CA;

2) Stating in the Resolution that the „Chin-Mallari property
overlaps the UP property,‰ when the DENR Survey Report stated
that the „UP title/property overlaps the Chin-Mallari property;‰
3) Issuing a Resolution, for which three Justices voted, to set
aside a Decision for which five Justices voted.

By these acts, the retired Members of this Court are

being held criminally accountable on the theory that they
violated the Constitution and the law in their ruling in the
cited cases, thereby causing „undue injury‰ to the parties to
these cases.

14

14 SUPREME COURT REPORTS ANNOTATED

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

After due consideration, we dismiss the criminal

complaint against retired Chief Justice Hilario G. Davide,
Jr. and retired Associate Justice Ma. Alicia Austria-
Martinez under Section 3(e) of RA 3019. We fully expound
on the reasons for this conclusion in the discussions below.
a. Contrary to the complainantsÊ position,
the Supreme Court has the power to review
the lower courtsÊ findings of fact.
The Supreme Court is the highest court of the land with
the power to review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of the lower courts.10 It
has the authority to promulgate rules on practice,
pleadings and admission to the bar, and suspend the
operation of these rules in the interest of justice.11
Jurisprudence holds, too, that the Supreme Court may
exercise these powers over the factual findings of the lower
courts, among other prerogatives, in the following
instances: (1) when the findings are grounded entirely on
speculations, surmises, or conjectures; (2) when the
inference made is manifestly mistaken, absurd of
impossible; (3) when there is grave abuse of discretion; (4)
when the judgment is based on a misappreciation of facts;
(5) when the findings of fact are conflicting; (6) when, in
making its findings, the same are contrary to the
admissions of both appellant and appellee; (7) when the
findings are contrary to those of the trial court; (8) when
the findings are conclusions without citation of specific
evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitionerÊs main and
reply briefs are not disputed by the respondent; and (10)
when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evi-

_______________

10 Constitution, Article VIII, Section 5(2).

11 Id., Section 5(5).

15

VOL. 614, March 2, 2010 15

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

dence on record.12 Thus, contrary to the complainants

LozanoÊ assertions in their complaint, the Supreme Court,
in the proper cases, can and does rule on factual
submissions before it, and even reverses the lower
courtÊs factual findings when the circumstances call for this
action.
b. Misuse of Constitutional Provisions
The complainants Lozano appear to us to have brazenly
misquoted and misused applicable constitutional provisions
to justify their case against the retired Justices. We refer
particularly to their use (or strictly, misuse) of Article X,
Section 2(3) of the 1973 Constitution which they claim
to be the governing rule that the retired Justices should
have followed in acting on the Pael case. This
constitutional provision states:

„Cases heard by a division shall be decided with the concurrence

of at least five Members, but if such required number is not
obtained the case shall be decided en banc; Provided, that no
doctrine or principle of law laid down by the Court in a decision
rendered en banc or in division may be modified or reversed except
by the Court sitting en banc.‰13

For failure to act according to these terms, the

complainants claim that the retired Justices subverted the
Constitution by reversing, by a vote of a majority of only
three members, the decision of the First Division
unanimously approved by its full membership of five
members.

_______________

12 Reyes v. Montemayor, G.R. No. 166516, September 3, 2009, 598

SCRA 61; Uy v. Villanueva, G.R. No. 157851, June 29, 2007, 526 SCRA
73, 83-84; Malison v. Court of Appeals, G.R. No. 147776, July 10, 2007,
527 SCRA 109, 117; and Buenaventura v. Republic, G.R. No. 166865,
March 2, 2007, 517 SCRA 271, 282.
13 Part of the Criminal Complaint-Affidavit for Corrupt Practices,
signed by Atty. Oliver O. Lozano and Atty. Evangeline Lozano-Endriano,
received by the Ombudsman on September 8, 2009, Ombudsman
Records, pp. 1089-1189, 1090.

16

16 SUPREME COURT REPORTS ANNOTATED

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

Had the complainants bothered to carefully consider the

facts and developments in Pael and accordingly related
these to the applicable constitutional provision, they
would have discovered that Pael was decided in 2003 when
the 1987 Constitution, not the 1973 Constitution, was
the prevailing Charter. They then would have easily
learned of the manner cases are heard and decided by
Division before the Supreme Court under the 1987
Constitution. Section 4(3), Article VIII of this
Constitution provides:

„Cases or matters heard by a division shall be decided or

resolved with the concurrence of a majority of the Members
who actually took part in the deliberations on the issues in the
case and voted thereon, and in no case, without the
concurrence of at least three of such Members. When the
required number is not obtained, the case shall be decided en banc;
Provided, that no doctrine or principle of law laid down by the court
in a decision rendered en banc or in division may be modified or
reversed except by the court sitting en banc.‰ (Emphasis supplied.)

This is the provision that governed in 2003 and still

governs to this day. Thus, the complainantsÊ argument and
basis for their criminal complaint·i.e., that in ruling on a
motion for reconsideration, all five members of the Division
should concur·is totally wrong.
c. The elements of the offense charged are
not sufficiently alleged in the complaint
A public official can violate Section 3(e) of Republic Act
No. 301914 in two ways: (1) by causing undue injury to any
party,

_______________

14 Section 3. Corrupt practices of public officers.·In addition to acts

or omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxxx

17

VOL. 614, March 2, 2010 17

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

including the Government; or (2) by giving any private

party any unwarranted benefit, advantage or preference;15
in either case, these acts must be committed through
manifest partiality, evident bad faith, or gross and
inexcusable negligence.
 „Partiality‰ is defined as a bias towards the disposition to see
and report matters as wished for, rather than as they are. „Bad
faith‰ connotes not only bad judgment or negligence, but also a
dishonest purpose, a conscious wrongdoing, or a breach of duty
amounting to fraud. „Gross negligence,‰ on the other hand, is
characterized by the want of even slight care, acting or omitting to
act in a situation where there is a duty to act, not inadvertently but
willfully and intentionally, with a conscious indifference to
consequences as far as other persons are concerned.16

The criminal complaint in this case failed to allege the

facts and circumstances showing that the retired Justices
acted with partiality, bad faith or negligence. The act of a
judicial officer in reviewing the findings of fact in a decision
and voting for its reversal cannot by itself constitute a
violation of Section 3(e) of Republic Act No. 3019 in the
absence of facts, alleged and proven, demonstrating a
dishonest purpose, conscious partiality, extrinsic fraud, or
any wrongdoing on his or

_______________

(e) Causing any undue injury to any party, including the

Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of the offices or government
corporations charged with the grant of licenses or permits or other
concessions.
xxxx
15 Velasco v. Sandiganbayan, 492 Phil. 669, 677; 452 SCRA 593, 602
(2005).
16 Dela Chica v. Sandiganbayan, 462 Phil 712, 721; 417 SCRA 242,
248 (2003); and Mendoza-Arce v. Office of the Ombudsman, 430 Phil 101,
115; 380 SCRA 325, 336-337 (2002).

18

18 SUPREME COURT REPORTS ANNOTATED

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

her part. A complainantÊs mere disagreement with the

magistrateÊs own conclusions, to be sure, does not justify a
criminal charge under Section 3(e) against the latter. In the
absence of alleged and proven particular acts of manifest
partiality, evident bad faith or gross inexcusable
negligence, good faith and regularity are generally
presumed in the performance of official duties by public
officers.17
For the criminal complaintÊs fatal omissions and
resultant failure to allege a prima facie case, it rightfully
deserves immediate dismissal.
III. The ComplainantsÊ Potential Liability
for Filing the Ombudsman Complaint
In light of the above conclusions and under the
attendant circumstances of the criminal complaints, we
cannot avoid considering whether the complainants Lozano
acted properly as members of the Bar, as officers of this
Court, and as professionals governed by norms of ethical
behavior, in filing their complaint.
In their criminal complaint, the complainants gave a
slanted view of the powers of this Court to suit their
purposes; for these same purposes, they wrongly cited and
misapplied the provisions of the Constitution, not just any
ordinary statute. As lawyers, the complainants must be
familiar and well acquainted with the fundamental law of
the land, and are charged with the duty to apply the
constitutional provisions in light of their prevailing
jurisprudential interpretation. As law practitioners active
in the legal and political circles, the complainants can
hardly be characterized as „unknowing‰ in their misuse
and misapplication of constitutional provisions. They
should, at the very least, know that the 1973 Constitution
and its provisions have been superseded by the 1987
Constitution, and that they cannot assail·invoking the
1973

_______________

17 Dela Chica v. Sandiganbayan, 462 Phil 712, 722; 417 SCRA 242,
248-249 (2003).

19

VOL. 614, March 2, 2010 19

Re: Subpoena Duces Tecum Dated January 11, 2010 of
Acting Director Aleu A. Amante, PIAB-C, Office of the
 Ombudsman

Constitution·the judicial acts of members of the Supreme

Court carried out in 2003 when the 1987 Constitution was
in effect. Their misuse of the Constitution is made more
reprehensible when the overriding thrust of their criminal
complaint is considered; they used the 1973 provisions to
falsely attribute malice and injustice to the Supreme Court
and its Members.
In our view, the complainantsÊ errors do not belong to the
genre of plain and simple errors that lawyers commit in the
practice of their profession. Their plain disregard, misuse
and misrepresentation of constitutional provisions
constitute serious misconduct that reflects on their fitness
for continued membership in the Philippine Bar. At the
very least, their transgressions are blatant violations of
Rule 10.02 of the Code of Professional Responsibility, which
provides:

„Rule 10.02. A lawyer shall not knowingly misquote or

misrepresent the contents of a paper, the language or the argument
of opposing counsel, or the text of a decision or authority, or
knowingly cite as a law a provision already rendered
inoperative by repeal or amendment, or assert as a fact that
which has not been proved.‰ (Emphasis provided.)

To emphasize the importance of requiring lawyers to act

candidly and in good faith, an identical provision is found
in Cannon 22 of the Canons of Professional Ethics.
Moreover, lawyers are sworn to „do no falsehood, nor
consent to the doing of any in court⁄‰ before they are even
admitted to the Bar. All these the complainants appear to
have seriously violated.
In the interest of due process and fair play, the
complainants Lozano should be heard, in relation to their
criminal complaint before the Ombudsman against retired
Chief Justice Hilario G. Davide, Jr. and retired Associate
Justice Ma. Alicia Austria-Martinez, on why they should
not be held accountable and accordingly penalized for
violations of their

20

20 SUPREME COURT REPORTS ANNOTATED

Re: Subpoena Duces Tecum Dated January 11, 2010 of
 Acting Director Aleu A. Amante, PIAB-C, Office of the
Ombudsman

duties as members of the Bar and officers of this Court, and

of the ethics of the legal profession.
WHEREFORE, premises considered, we DISMISS the
criminal complaint entitled Oliver O. Lozano, et al. v.
Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J for utter
lack of merit, and DECLARE as MOOT and ACADEMIC
the question of compliance with the subpoena duces tecum
dated January 11, 2010 that the Ombudsman issued
against this Court.
We hereby ORDER the complainants Atty. Oliver O.
Lozano and Atty. Evangeline Lozano-Endriano to
EXPLAIN IN WRITING to this Court, within a non-
extendible period of 15 days from receipt of this Resolution,
why they should not be penalized as members of the Bar
and as officers of this Court, for their open disregard of the
plain terms of the Constitution and the applicable laws and
jurisprudence, and their misuse and misrepresentation of
constitutional provisions in their criminal complaint before
the Office of the Ombudsman, entitled Oliver O. Lozano, et
al. v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J.
SO ORDERED.

Carpio, Corona, Carpio-Morales, Velasco, Jr., Nachura,

Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo,
Abad, Villarama, Jr., Perez and Mendoza, JJ., concur.
Puno (C.J.), No Part.

Criminal complaint entitled Oliver O. Lozano, et al. vs.

Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J
dismissed, question of compliance with subpoena duces
tecum dated January 11, 2010 declared moot and academic.
Complainants ordered to explain in writing their open
disregard of the terms of the Constitution and applicable
laws and jurisprudence and their misuse and
misrepresentation of constitutional provisions in their
criminal complaint before the Office of the Ombudsman.

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