Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

A.C. No. 6672               September 4, 2009

PEDRO L. LINSANGAN, Complainant,
vs.
ATTY. NICOMEDES TOLENTINO, Respondent.

RESOLUTION

CORONA, J.:

This is a complaint for disbarment1 filed by Pedro Linsangan of the Linsangan Linsangan &
Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation of clients and encroachment
of professional services.

Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, convinced his
clients2 to transfer legal representation. Respondent promised them financial assistance 3 and
expeditious collection on their claims.4 To induce them to hire his services, he persistently called
them and sent them text messages.

To support his allegations, complainant presented the sworn affidavit 5 of James Gregorio attesting
that Labiano tried to prevail upon him to sever his lawyer-client relations with complainant and utilize
respondent’s services instead, in exchange for a loan of ₱50,000. Complainant also attached
"respondent’s" calling card:6

Front

NICOMEDES TOLENTINO

LAW OFFFICE

CONSULTANCY & MARITIME SERVICES

W/ FINANCIAL ASSISTANCE

Fe Marie L. Labiano
Paralegal

Tel: 362-7820
1st MIJI Mansion, 2nd Flr. Rm. M-
Fax: (632) 362-
01
7821
6th Ave., cor M.H. Del Pilar
Cel.: (0926)
Grace Park, Caloocan City
2701719
 Back

SERVICES OFFERED:

CONSULTATION AND ASSISTANCE

TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT,
INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS
ABROAD.
1avvphi1

(emphasis supplied)

Hence, this complaint.

Respondent, in his defense, denied knowing Labiano and authorizing the printing and circulation of
the said calling card.7

The complaint was referred to the Commission on Bar Discipline (CBD) of the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation. 8

Based on testimonial and documentary evidence, the CBD, in its report and recommendation, 9 found
that respondent had encroached on the professional practice of complainant, violating Rule
8.0210 and other canons11 of the Code of Professional Responsibility (CPR). Moreover, he
contravened the rule against soliciting cases for gain, personally or through paid agents or brokers
as stated in Section 27, Rule 13812 of the Rules of Court. Hence, the CBD recommended that
respondent be reprimanded with a stern warning that any repetition would merit a heavier penalty.

We adopt the findings of the IBP on the unethical conduct of respondent but we modify the
recommended penalty.

The complaint before us is rooted on the alleged intrusion by respondent into complainant’s
professional practice in violation of Rule 8.02 of the CPR. And the means employed by respondent
in furtherance of the said misconduct themselves constituted distinct violations of ethical rules.

Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner by which a
lawyer’s services are to be made known. Thus, Canon 3 of the CPR provides:

CANON 3 - A lawyer in making known his legal services shall use only true, honest, fair, dignified
and objective information or statement of facts.

Time and time again, lawyers are reminded that the practice of law is a profession and not a
business; lawyers should not advertise their talents as merchants advertise their wares. 13 To allow a
lawyer to advertise his talent or skill is to commercialize the practice of law, degrade the profession
in the public’s estimation and impair its ability to efficiently render that high character of service to
which every member of the bar is called. 14

Rule 2.03 of the CPR provides:

RULE 2.03. A lawyer shall not do or permit to be done any act designed primarily to solicit legal
business.

Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or
through paid agents or brokers.15 Such actuation constitutes malpractice, a ground for disbarment. 16

Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:

RULE 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding
or delay any man’s cause.

This rule proscribes "ambulance chasing" (the solicitation of almost any kind of legal business by an
attorney, personally or through an agent in order to gain employment) 17 as a measure to protect the
community from barratry and champerty.18

Complainant presented substantial evidence19 (consisting of the sworn statements of the very same
persons coaxed by Labiano and referred to respondent’s office) to prove that respondent indeed
solicited legal business as well as profited from referrals’ suits.

Although respondent initially denied knowing Labiano in his answer, he later admitted it during the
mandatory hearing.

Through Labiano’s actions, respondent’s law practice was benefited. Hapless seamen were enticed
to transfer representation on the strength of Labiano’s word that respondent could produce a more
favorable result.

Based on the foregoing, respondent clearly solicited employment violating Rule 2.03, and Rule 1.03
and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of Court. 1avvphi1

With regard to respondent’s violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should
not steal another lawyer’s client nor induce the latter to retain him by a promise of better service,
good result or reduced fees for his services.20 Again the Court notes that respondent never denied
having these seafarers in his client list nor receiving benefits from Labiano’s "referrals." Furthermore,
he never denied Labiano’s connection to his office. 21 Respondent committed an unethical, predatory
overstep into another’s legal practice. He cannot escape liability under Rule 8.02 of the CPR.

Moreover, by engaging in a money-lending venture with his clients as borrowers, respondent

violated Rule 16.04:

Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s interests are fully
protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a
client except, when in the interest of justice, he has to advance necessary expenses in a legal matter
he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only exception is, when in the interest
of justice, he has to advance necessary expenses (such as filing fees, stenographer’s fees for
transcript of stenographic notes, cash bond or premium for surety bond, etc.) for a matter that he is
handling for the client.

The rule is intended to safeguard the lawyer’s independence of mind so that the free exercise of his
judgment may not be adversely affected. 22 It seeks to ensure his undivided attention to the case he is
handling as well as his entire devotion and fidelity to the client’s cause. If the lawyer lends money to
the client in connection with the client’s case, the lawyer in effect acquires an interest in the subject
matter of the case or an additional stake in its outcome. 23 Either of these circumstances may lead the
lawyer to consider his own recovery rather than that of his client, or to accept a settlement which
may take care of his interest in the verdict to the prejudice of the client in violation of his duty of
undivided fidelity to the client’s cause.24

As previously mentioned, any act of solicitation constitutes malpractice 25 which calls for the exercise
of the Court’s disciplinary powers. Violation of anti-solicitation statutes warrants serious sanctions for
initiating contact with a prospective client for the purpose of obtaining employment. 26 Thus, in this
jurisdiction, we adhere to the rule to protect the public from the Machiavellian machinations of
unscrupulous lawyers and to uphold the nobility of the legal profession.

Considering the myriad infractions of respondent (including violation of the prohibition on lending
money to clients), the sanction recommended by the IBP, a mere reprimand, is a wimpy slap on the
wrist. The proposed penalty is grossly incommensurate to its findings.

A final word regarding the calling card presented in evidence by petitioner. A lawyer’s best
advertisement is a well-merited reputation for professional capacity and fidelity to trust based on his
character and conduct.27 For this reason, lawyers are only allowed to announce their services by
publication in reputable law lists or use of simple professional cards.

Professional calling cards may only contain the following details:

(a) lawyer’s name;

(b) name of the law firm with which he is connected;

(c) address;

(d) telephone number and

(e) special branch of law practiced.28

Labiano’s calling card contained the phrase "with financial assistance." The phrase was clearly used
to entice clients (who already had representation) to change counsels with a promise of loans to
finance their legal actions. Money was dangled to lure clients away from their original lawyers,
thereby taking advantage of their financial distress and emotional vulnerability. This crass
commercialism degraded the integrity of the bar and deserved no place in the legal profession.
However, in the absence of substantial evidence to prove his culpability, the Court is not prepared to
rule that respondent was personally and directly responsible for the printing and distribution of
Labiano’s calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03, 8.02 and 16.04
and Canon 3 of the Code of Professional Responsibility and Section 27, Rule 138 of the Rules of
Court is hereby SUSPENDED from the practice of law for a period of one year effective
immediately from receipt of this resolution. He is STERNLY WARNED that a repetition of the same
or similar acts in the future shall be dealt with more severely.

Let a copy of this Resolution be made part of his records in the Office of the Bar Confidant, Supreme
Court of the Philippines, and be furnished to the Integrated Bar of the Philippines and the Office of
the Court Administrator to be circulated to all courts.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

A.C. No. 6166               October 2, 2009

MARIA EARL BEVERLY C. CENIZA, Complainant,

vs.
ATTY. VIVIAN G. RUBIA, Respondent.

DECISION

YNARES-SANTIAGO, J.:

In a verified complaint1 dated July 25, 2003 filed with the Office of the Bar Confidant, Maria Earl
Beverly C. Ceniza charged Atty. Vivian G. Rubia with grave misconduct, gross ignorance of the law
and falsification of public documents.

The facts of the case are as follows:

On May 3, 2002, complainant sought the legal services of the respondent in regard to the share of
her mother-in-law in the estate of her husband Carlos Ceniza. As she had no money to pay for
attorney’s fees since her mother-in-law would arrive from the United States only in June 2002,
respondent made her sign a promissory note for P32,000.00, which amount was lent by Domingo
Natavio. After her mother-in-law arrived and paid the loan, respondent furnished them a copy of the
complaint for partition and recovery of ownership/possession representing legitime but with no
docket number on it. They kept on following up the progress of the complaint. However, three
months lapsed before respondent informed them that it was already filed in court. It was then that
they received a copy of the complaint with "Civil Case No. 4198" and a rubber stamped "RECEIVED"
thereon. However, when complainant verified the status of the case with the Clerk of Court of the
Regional Trial Court of Davao del Sur, she was informed that no case with said title and docket
number was filed.2

Further, complainant alleged that respondent was guilty of gross ignorance of the law for intending to
file the complaint in Davao del Sur when the properties to be recovered were located in Koronadal,
South Cotabato and Malungon, Sarangani Province, in violation of the rule on venue that real
actions shall be filed in the place where the property is situated. Complainant also alleged that
respondent forged the signature of her husband, Carlito C. Ceniza, in the Affidavit of Loss attached
to a petition for the issuance of a new owner’s duplicate certificate of title filed with the Regional Trial
Court (RTC) of Digos City, Branch 20, in Misc. Case No. 114-2202. 3

In her comment, respondent assailed the personality of the complainant to institute the
administrative complaint for disbarment as she was not a party to the action for partition and
recovery of ownership/possession. As such, her allegations in the administrative complaint were all
hearsay, self-serving and unsubstantiated. Further, the charge of forgery of the Affidavit of Loss was
belied by the March 3, 2003 decision of the trial court, wherein Carlito C. Ceniza affirmed his
statements in the said affidavit when he was called to testify.4
On February 2, 2004, the Court resolved to refer the case to the Integrated Bar of the Philippines
(IBP) for investigation, report and recommendation.

On April 29, 2004, respondent filed a Supplemental Comment explaining the rubber stamped
"RECEIVED" on the complaint. According to her, when her staff Jan Kirt Lester Soledad was at the
RTC Office of the Clerk of Court, she called him through cellular phone and directed him to stop the
filing of the complaint as the same lacked certain attachments. However, one copy thereof was
already stamped "RECEIVED" by the receiving court personnel, who also assigned a docket
number. She kept the copies of the complaint, including the one with the stamp, to be filed later
when the attachments are complete.

Meanwhile, on November 7, 2005, respondent filed a Manifestation with Urgent Motion praying that
the administrative complaint be likewise dismissed in view of the dismissal of the criminal case due
to complainant’s apparent lack of interest to prosecute.

On January 19, 2007, the IBP Investigating Commissioner recommended that respondent be found
guilty of falsification of public document and be meted the penalty of suspension from the practice of
law for a period of three years. The report reads in part, as follows:

A proceeding for suspension or disbarment is not in any sense a civil action, where the complainant
is a plaintiff and the respondent lawyer is a defendant. It involved no private interest. The
complainant or person who called the attention of the court to the attorney’s misconduct is in no
sense a party and has generally no interest in its outcome except as all good citizens may have in
the proper administration of justice. It affords no redress for private grievance. (Tejan v. Cusi, 57
SCRA 154)

Prescinding from the aforequoted ruling, it is therefore irrelevant and immaterial if herein
complainant is not a party to the subject civil complaint prepared by the respondent. A case of
suspension or disbarment may proceed regardless of interest or lack of interest of the complainant.
What matters is whether on the basis of the facts borne out by the record, the charge has been
proven.

On the payment of the acceptance fee in the amount of P32,000.00, respondent’s contention that
she acted as guarantor of Carlos Ceniza, complainant’s husband, when he borrowed money from a
money lender, Domingo Natavio, the amount representing the acceptance, does not inspire belief.
The promissory note dated May 3, 2002, appended as Annex "A" of the complaint-affidavit
eloquently shows that consistent with the complainant’s allegation, she was made to borrow said
amount to be paid as respondent’s acceptance fee. It bears stress that the date of the promissory
note is the same date when respondent’s services were engaged leading to the preparation of the
subject civil complaint. Complainant’s allegation is further enhanced by the fact that such promissory
note was even notarized by the respondent.

On the alleged filing of the subject civil complaint, it is undisputed that the same was not filed before
the Office of the Clerk of Court, RTC Davao Del Sur, as evidenced by a Certification from the said
office appended as Annex "A" of complainant’s Manifestation dated October 14, 2005. Thus, the
claim of complainant that respondent falsified or caused it to falsify the stamp marked received dated
May 10, 2002 including the case number "4198", finds factual and legal bases.

It bears stress that a copy of the subject civil complaint was obtained by complainant from the
respondent herself who tried to impress upon the former that contrary to her suspicion, the subject
civil complaint was already filed in court. However, inquiry made by the complainant shows
otherwise.
Respondent’s contention that after one copy of the complaint was already stamped by court
personnel in preparation for receiving the same and entering in the court’s docket, she caused it to
be withdrawn after realizing that the same lacked certain attachments, is bereft of merit.

In the first place, respondent miserably failed to mention these lacking attachments that allegedly
caused the withdrawal of the complaint. Secondly, and assuming arguendo that the withdrawal was
due to lacking attachments, how come the same was not filed in the next office day complete with
attachments. And lastly, the Certification of the Clerk of Court clearly states that Civil Case No. 4188
is not the case of Mercedes Callejo vda. De Ceniza, et al. vs. Charlotte Ceniza, et al.

xxxx

The fact that the City Prosecutor’s Office of Digos, upon motion for reconsideration of the
respondent, dismissed a similar complaint filed by herein complainant will not in anyway affect the
above captioned administrative complaint.

The pendency of a criminal action against the respondent, from the facts of which the disciplinary
proceeding is predicated, does not pose prejudicial question to the resolution of the issues in the
disbarment case. (Calo vs. Degano, 20 SCRA 447) His conviction is not necessary to hold the
lawyer administratively liable because the two proceedings and their objectives are different and it is
not sound public policy to await the final resolution of a criminal case before the court act on a
complaint against a lawyer as it may emasculate the disciplinary power of the court. (In re Brillantes,
76 SCRA 1) Nor is his acquittal, by this fact alone, a bar to an administrative complaint against him.
(Piatt vs. Abordo, 58 Phil. 350).

The other allegations in the complaint about ignorance of the law are found to be without basis.

RECOMMENDATION

WHEREFORE, it is most respectfully recommended that herein respondent Atty. Vivian C. Rubia, be
found guilty of the charge of falsification of public document and be meted the penalty of suspension
from the practice of law for a period of three (3) years.

On May 31, 2007, the Board of Governors of the IBP issued a Resolution adopting the Investigating
Commissioner’s recommendation with modification, as follows:

RESOLUTION NO. XVII-2007-237

Adm. Case No. 6166

Maria Earl Beverly C. Ceniza vs.

Atty. Vivian G. Rubia

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with

modification, the Report and Recommendation of the Investigating Commissioner of the above-
entitled case, herein made part of this Resolution as Annex "A"; and finding the recommendation
fully supported by the evidence on record and the applicable laws and rules, and considering
Respondent’s falsification of public document, Atty. Vivian G. Rubia is hereby DISBARRED.
However, in its December 11, 2008 Resolution, the Board of Governors reconsidered its May 31,
2007 Resolution by reducing the recommended penalty of disbarment to five years suspension from
the practice of law, thus:

RESOLUTION NO. XVIII-2008-715

Adm. Case No. 6166

Maria Earl Beverly C. Ceniza vs.

Atty. Vivian G. Rubia

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED the

Recommendation of the Board of Governors First Division of the above-entitled case, herein made
part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the
evidence on record and the applicable laws and rules, the Motion for Reconsideration is hereby
DENIED with modification, that Resolution RESOLUTION NO. XVII-2007-237 of the Board of
Governors dated 31 May 2007 recommending the Disbarment of Atty. Vivian G. Rubia is reduced to
Five (5) years Suspension from the practice of law.

On April 20, 2009, the IBP forwarded the instant case to this Court as provided under Rule 139-B,
Section 12(b) of the Rules of Court.

Complainant seeks the disbarment of respondent from the practice of law for gross misconduct,
ignorance of the law and for falsification of public document. In disbarment proceedings, the burden
of proof rests upon the complainant, and for the court to exercise its disciplinary powers, the case
against the respondent must be established by clear, convincing and satisfactory proof. Considering
the serious consequence of the disbarment or suspension of a member of the Bar, this Court has
consistently held that clear preponderant evidence is necessary to justify the imposition of the
administrative penalty.5

The sole issue in this case is whether or not there is preponderant evidence to warrant the
imposition of administrative sanction against the respondent.

In accusing respondent of falsification of public document, complainant alleged that respondent

misrepresented to her that the complaint was already filed in court, when in fact, upon verification
with the RTC Clerk of Court, it was not. Such misrepresentation is shown by the copy of the
complaint with a stamped "RECEIVED" and docket number thereon. Apart from said allegations,
complainant has not proferred any proof tending to show that respondent deliberately falsified a
public document.

A perusal of the records shows that complainant’s evidence consists solely of her Affidavit-
Complaint and the annexes attached therewith. She did not appear in all the mandatory conferences
set by the investigating commissioner in order to give respondent the chance to test the veracity of
her assertions. It is one thing to allege gross misconduct, ignorance of the law or falsification of
public document and another to demonstrate by evidence the specific acts constituting the same.

Indeed, complainant has no way of knowing the surrounding circumstances behind the filing of the
complaint by respondent’s staff because she was not present when the same was filed with the trial
court. Complainant failed to disprove by preponderant evidence respondent’s claim that the case
was not filed but was in fact withdrawn after it was stamped with "RECEIVED" and assigned with a
docket number. We find this explanation satisfactory and plausible considering that the stamp did
not bear the signature of the receiving court personnel, which is normally done when pleadings are
received by the court.

Further, the certification of the RTC Clerk of Court that the complaint was not filed and that "CIVIL
CASE NO. 4198" pertained to another case, did not diminish the truthfulness of respondent’s claim,
but even tended to bolster it. Necessarily, as the complaint was not filed, docket number "4198"
indicated in the copy of the complaint was assigned to another case thereafter filed in court.

Thus, for lack of preponderant evidence, the investigating commissioner’s ruling that respondent
was guilty of falsification of public document, as adopted by the IBP Board of Governors, has no
factual basis to stand on.
1avvphi1

However, we find that respondent committed some acts for which she should be disciplined or
administratively sanctioned.

We find nothing illegal or reprehensible in respondent’s act of charging an acceptance fee of

P32,000.00, which amount appears to be reasonable under the circumstances. The impropriety lies
in the fact that she suggested that complainant borrow money from Domingo Natavio for the
payment thereof. This act impresses upon the Court that respondent would do nothing to the cause
of complainant’s mother-in-law unless payment of the acceptance fee is made. Her duty to render
legal services to her client with competence and diligence should not depend on the payment of
acceptance fee, which was in this case promised to be paid upon the arrival of complainant’s
mother-in-law in June 2002, or barely a month after respondent accepted the case.

Respondent’s transgression is compounded further when she severed the lawyer-client relationship
due to overwhelming workload demanded by her new employer Nakayama Group of Companies,
which constrained her to return the money received as well as the records of the case, thereby
leaving her client with no representation. Standing alone, heavy workload is not sufficient reason for
the withdrawal of her services.

Moreover, respondent failed to maintain an open line of communication with her client regarding the
status of their complaint.

Clearly, respondent violated the Lawyer’s Oath which imposes upon every member of the bar the
duty to delay no man for money or malice, Rules 18.03 and 18.04 of Canon 18, and Canon 22 of the
Code of Professional Responsibility, thus:

CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

xxxx

Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him and his negligence in
connection therewith shall render him liable.

Rule 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond
within a reasonable time to the client’s request for information.

CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND
UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.
When a lawyer accepts to handle a case, whether for a fee or gratis et amore, he undertakes to give
his utmost attention, skill and competence to it, regardless of its significance. Thus, his client,
whether rich or poor, has the right to expect that he will discharge his duties diligently and exert his
best efforts, learning and ability to prosecute or defend his (client’s) cause with reasonable dispatch.
Failure to fulfill his duties will subject him to grave administrative liability as a member of the Bar. For
the overriding need to maintain the faith and confidence of the people in the legal profession
demands that an erring lawyer should be sanctioned. 6

WHEREFORE, in view of the foregoing, respondent Atty. Vivian G. Rubia is found GUILTY of
violation of Rule 18.03 and Canon 22 of the Code of Professional Responsibility. Accordingly, she is
SUSPENDED from the practice of law for six (6) months effective immediately, with a warning that
similar infractions in the future will be dealt with more severely.

Let all courts, through the Office of the Court Administrator, as well as the Integrated Bar of the
Philippines and the Office of the Bar Confidant, be notified of this Decision, and be it duly recorded in
the personal file of respondent Atty. Vivian G. Rubia.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.C. No. 7136             August 1, 2007

JOSELANO GUEVARRA, complainant,
vs.
ATTY. JOSE EMMANUEL EALA, respondent.

DECISION

PER CURIAM:

Joselano Guevarra (complainant) filed on March 4, 2002 a Complaint for Disbarment 1 before the
Integrated Bar of the Philippines (IBP) Committee on Bar Discipline (CBD) against Atty. Jose
Emmanuel M. Eala a.k.a. Noli Eala (respondent) for "grossly immoral conduct and unmitigated
violation of the lawyer's oath."

In his complaint, Guevarra gave the following account:

He first met respondent in January 2000 when his (complainant's) then-fiancee Irene Moje (Irene)
introduced respondent to him as her friend who was married to Marianne (sometimes spelled "Mary
Ann") Tantoco with whom he had three children.

After his marriage to Irene on October 7, 2000, complainant noticed that from January to March
2001, Irene had been receiving from respondent cellphone calls, as well as messages some of
which read "I love you," "I miss you," or "Meet you at Megamall."

Complainant also noticed that Irene habitually went home very late at night or early in the morning of
the following day, and sometimes did not go home from work. When he asked about her
whereabouts, she replied that she slept at her parents' house in Binangonan, Rizal or she was busy
with her work.

In February or March 2001, complainant saw Irene and respondent together on two occasions. On
the second occasion, he confronted them following which Irene abandoned the conjugal house.

On April 22, 2001, complainant went uninvited to Irene's birthday celebration at which he saw her
and respondent celebrating with her family and friends. Out of embarrassment, anger and
humiliation, he left the venue immediately. Following that incident, Irene went to the conjugal house
and hauled off all her personal belongings, pieces of furniture, and her share of the household
appliances.

Complainant later found, in the master's bedroom, a folded social card bearing the words "I Love
You" on its face, which card when unfolded contained a handwritten letter dated October 7, 2000,
the day of his wedding to Irene, reading:

My everdearest Irene,
 By the time you open this, you'll be moments away from walking down the aisle. I will say a
prayer for you that you may find meaning in what you're about to do.

Sometimes I wonder why we ever met. Is it only for me to find fleeting happiness but
experience eternal pain? Is it only for us to find a true love but then lose it again? Or is it
because there's a bigger plan for the two of us?

I hope that you have experienced true happiness with me. I have done everything humanly
possible to love you. And today, as you make your vows . . . I make my own vow to YOU!

I will love you for the rest of my life. I loved you from the first time I laid eyes on you, to the
time we spent together, up to the final moments of your single life. But more importantly, I will
love you until the life in me is gone and until we are together again.

Do not worry about me! I will be happy for you. I have enough memories of us to last me a
lifetime. Always remember though that in my heart, in my mind and in my soul, YOU WILL
ALWAYS

. . . AND THE WONDERFUL THINGS YOU DO!

BE MINE . . . . AND MINE ALONE, and I WILL ALWAYS BE YOURS AND YOURS ALONE!

I LOVE YOU FOREVER, I LOVE YOU FOR ALWAYS. AS LONG AS I'M LIVING MY
TWEETIE YOU'LL BE!"2

Eternally yours,
NOLI

Complainant soon saw respondent's car and that of Irene constantly parked at No. 71-B 11 th Street,
New Manila where, as he was to later learn sometime in April 2001, Irene was already residing. He
also learned still later that when his friends saw Irene on or about January 18, 2002 together with
respondent during a concert, she was pregnant.

In his ANSWER,3 respondent admitted having sent the I LOVE YOU card on which the above-quoted
letter was handwritten.

On paragraph 14 of the COMPLAINT reading:

14. Respondent and Irene were even FLAUNTING THEIR ADULTEROUS RELATIONSHIP
as they attended social functions together. For instance, in or about the third week of
September 2001, the couple attended the launch of the "Wine All You Can" promotion of
French wines, held at the Mega Strip of SM Megamall B at Mandaluyong City. Their
attendance was reported in Section B of the Manila Standard issue of 24 September 2001,
on page 21. Respondent and Irene were photographed together; their picture was captioned:
"Irene with Sportscaster Noli Eala." A photocopy of the report is attached as Annex
C.4 (Italics and emphasis in the original; CAPITALIZATION of the phrase "flaunting their
adulterous relationship" supplied),

respondent, in his ANSWER, stated:

 4. Respondent specifically denies having ever flaunted an adulterous relationship with
Irene as alleged in paragraph 14 of the Complaint, the truth of the matter being that their
relationship was low profile and known only to the immediate members of their
respective families, and that Respondent, as far as the general public was concerned, was
still known to be legally married to Mary Anne Tantoco.5 (Emphasis and underscoring
supplied)

On paragraph 15 of the COMPLAINT reading:

15. Respondent's adulterous conduct with the complainant's wife and his

apparent abandoning or neglecting of his own family, demonstrate his gross moral depravity,
making him morally unfit to keep his membership in the bar. He flaunted his aversion to the
institution of marriage, calling it a "piece of paper." Morally reprehensible was his writing the
love letter to complainant's bride on the very day of her wedding, vowing to continue his love
for her "until we are together again," as now they are. 6 (Underscoring supplied),

respondent stated in his ANSWER as follows:

5. Respondent specifically denies the allegations in paragraph 15 of the Complaint regarding

his adulterous relationship and that his acts demonstrate gross moral depravity thereby
making him unfit to keep his membership in the bar, the reason being that Respondent's
relationship with Irene was not under scandalous circumstances and that as far as his
relationship with his own family:

5.1 Respondent has maintained a civil, cordial and peaceful relationship with [his wife] Mary
Anne as in fact they still occasionally meet in public, even if Mary Anne is aware
of Respondent's special friendship with Irene.

xxxx

5.5 Respondent also denies that he has flaunted his aversion to the institution of marriage by
calling the institution of marriage a mere piece of paper because his reference [in his above-
quoted handwritten letter to Irene] to the marriage between Complainant and Irene as a
piece of paper was merely with respect to the formality of the marriage contract.7 (Emphasis
and underscoring supplied)

Respondent admitted8 paragraph 18 of the COMPLAINT reading:

18. The Rules of Court requires lawyers to support the Constitution and obey the laws. The
Constitution regards marriage as an inviolable social institution and is the foundation of the
family (Article XV, Sec. 2).9

And on paragraph 19 of the COMPLAINT reading:

19. Respondent's grossly immoral conduct runs afoul of the Constitution and the laws he,
as a lawyer, has been sworn to uphold. In pursuing obsessively his illicit love for the
complainant's wife, he mocked the institution of marriage, betrayed his own family, broke
up the complainant's marriage, commits adultery with his wife, and degrades the legal
profession.10 (Emphasis and underscoring supplied),

respondent, in his ANSWER, stated:

 7. Respondent specifically denies the allegations in paragraph 19 of the Complaint, the
reason being that under the circumstances the acts of Respondent with respect to his purely
personal and low profile special relationship with Irene is neither under scandalous
circumstances nor tantamount to grossly immoral conduct  as would be a ground for
disbarment pursuant to Rule 138, Section 27 of the Rules of Court.11 (Emphasis and
underscoring supplied)

To respondent's ANSWER, complainant filed a REPLY, 12 alleging that Irene gave birth to a girl and
Irene named respondent in the Certificate of Live Birth as the girl's father. Complainant attached to
the Reply, as Annex "A," a copy of a Certificate of Live Birth13 bearing Irene's signature and naming
respondent as the father of her daughter Samantha Irene Louise Moje who was born on February
14, 2002 at St. Luke's Hospital.

Complainant's REPLY merited a REJOINDER WITH MOTION TO DISMISS14 dated January 10,

2003 from respondent in which he denied having "personal knowledge of the Certificate of Live Birth
attached to the complainant's Reply."15 Respondent moved to dismiss the complaint due to the
pendency of a civil case filed by complainant for the annulment of his marriage to Irene, and a
criminal complaint for adultery against respondent and Irene which was pending before the Quezon
City Prosecutor's Office.

During the investigation before the IBP-CBD, complainant's Complaint-Affidavit and Reply to Answer
were adopted as his testimony on direct examination. 16 Respondent's counsel did not cross-examine
complainant.17

After investigation, IBP-CBD Investigating Commissioner Milagros V. San Juan, in a 12-page

REPORT AND RECOMMENDATION18 dated October 26, 2004, found the charge against
respondent sufficiently proven.

The Commissioner thus recommended19 that respondent be disbarred for violating Rule 1.01 of

Canon 1 of the Code of Professional Responsibility reading:

Rule 1.01: A lawyer shall not engage in unlawful, dishonest, immoral or

deceitful conduct (Underscoring supplied),

and Rule 7.03 of Canon 7 of the same Code reading:

Rule 7.03: A lawyer shall not engage in conduct that adversely reflects on his fitness to

practice law, nor shall he, whether in public or private life, behave in a scandalous manner to
the discredit of the legal profession. (Underscoring supplied)

The IBP Board of Governors, however, annulled and set aside the Recommendation of the
Investigating Commissioner and accordingly dismissed the case for lack of merit, by Resolution
dated January 28, 2006 briefly reading:

RESOLUTION NO. XVII-2006-06

CBD Case No. 02-936

Joselano C. Guevarra vs.
Atty. Jose Emmanuel M. Eala
a.k.a. Noli Eala
 RESOLVED to ANNUL and SET ASIDE, as it is hereby ANNULLED AND SET ASIDE, the
Recommendation of the Investigating Commissioner, and to APPROVE the DISMISSAL of
the above-entitled case for lack of merit.20 (Italics and emphasis in the original)

Hence, the present petition21 of complainant before this Court, filed pursuant to Section 12 (c), Rule
13922 of the Rules of Court.

The petition is impressed with merit.

Oddly enough, the IBP Board of Governors, in setting aside the Recommendation of the
Investigating Commissioner and dismissing the case for lack of merit, gave no reason therefor as its
above-quoted 33-word Resolution shows.

Respondent contends, in his Comment23 on the present petition of complainant, that there is no
evidence against him.24 The contention fails. As the IBP-CBD Investigating Commissioner observed:

While it may be true that the love letter dated October 7, 2000 (Exh. "C") and the news item
published in the Manila Standard (Exh. "D"), even taken together do not sufficiently prove
that respondent is carrying on an adulterous relationship with complainant's wife, there are
other pieces of evidence on record which support the accusation of complainant against
respondent.

It should be noted that in his Answer dated 17 October 2002, respondent through
counsel made the following statements to wit: "Respondent specifically denies having
[ever] flaunted an adulterous relationship with Irene as alleged in paragraph [14] of the
Complaint, the truth of the matter being [that] their relationship was low profile and known
only to immediate members of their respective families . . . , and Respondent specifically
denies the allegations in paragraph 19 of the complaint, the reason being that under the
circumstances the acts of the respondents with respect to his purely personal and low profile
relationship with Irene is neither under scandalous circumstances nor tantamount to grossly
immoral conduct . . ."

These statements of respondent in his Answer are an admission that there is indeed a

"special" relationship between him and complainant's wife, Irene, [which] taken
together with the Certificate of Live Birth of Samantha Louise Irene Moje (Annex "H-
1") sufficiently prove that there was indeed an illicit relationship between respondent
and Irene which resulted in the birth of the child "Samantha". In the Certificate of Live Birth
of Samantha it should be noted that complainant's wife Irene supplied the information
that respondent was the father of the child. Given the fact that the respondent admitted
his special relationship with Irene there is no reason to believe that Irene would lie or
make any misrepresentation regarding the paternity of the child. It should be
underscored that respondent has not categorically denied that he is the father of
Samantha Louise Irene Moje.25 (Emphasis and underscoring supplied)

Indeed, from respondent's Answer, he does not deny carrying on an adulterous relationship with
Irene, "adultery" being defined under Art. 333 of the Revised Penal Code as that "committed by any
married woman who shall have sexual intercourse with a man not her husband and by the man who
has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently
declared void."26 (Italics supplied) What respondent denies is having flaunted such relationship, he
maintaining that it was "low profile and known only to the immediate members of their respective
families."
In other words, respondent's denial is a negative pregnant,

a denial pregnant with the admission of the substantial facts in the pleading responded to
which are not squarely denied. It was in effect an admission of the averments it was directed
at. Stated otherwise, a negative pregnant is a form of negative expression which carries with
it in affirmation or at least an implication of some kind favorable to the adverse party. It is a
denial pregnant with an admission of the substantial facts alleged in the pleading. Where a
fact is alleged with qualifying or modifying language and the words of the allegation as so
qualified or modified are literally denied, it has been held that the  qualifying circumstances
alone are denied while the fact itself is admitted.27 (Citations omitted; emphasis and
underscoring supplied)

A negative pregnant too is respondent's denial of having "personal knowledge" of Irene's daughter
Samantha Louise Irene Moje's Certificate of Live Birth. In said certificate, Irene named respondent –
a "lawyer," 38 years old – as the child's father. And the phrase "NOT MARRIED" is entered on the
desired information on "DATE AND PLACE OF MARRIAGE." A comparison of the signature
attributed to Irene in the certificate28 with her signature on the Marriage Certificate29 shows that they
were affixed by one and the same person. Notatu dignum is that, as the Investigating Commissioner
noted, respondent never denied being the father of the child.

Franklin A. Ricafort, the records custodian of St. Luke's Medical Center, in his January 29, 2003
Affidavit30 which he identified at the witness stand, declared that Irene gave the information in the
Certificate of Live Birth that the child's father is "Jose Emmanuel Masacaet Eala," who was 38 years
old and a lawyer.31

Without doubt, the adulterous relationship between respondent and Irene has been sufficiently
proven by more than clearly preponderant evidence – that evidence adduced by one party which is
more conclusive and credible than that of the other party and, therefore, has greater weight than the
other32 – which is the quantum of evidence needed in an administrative case against a lawyer.

Administrative cases against lawyers belong to a class of their own. They are distinct from and they
may proceed independently of civil and criminal cases.

. . . of proof for these types of cases differ. In a criminal case, proof beyond reasonable doubt
is necessary; in an administrative case for disbarment or suspension, "clearly preponderant
evidence" is all that is required.33 (Emphasis supplied)

Respondent insists, however, that disbarment does not lie because his relationship with Irene was
not, under Section 27 of Rule 138 of the Revised Rules of Court, reading:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. ─ A

member of the bar may be disbarred or suspended from his office as attorney by the
Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly
immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or
for any violation of the oath which he is required to take before admission to practice, or for a
willful disobedience appearing as an attorney for a party to a case without authority so to do.
The practice of soliciting cases at law for the purpose of gain, either personally or through
paid agents or brokers, constitutes malpractice.

The disbarment or suspension of a member of the Philippine Bar by a competent court or

other disciplinatory agency in a foreign jurisdiction where he has also been admitted as an
 attorney is a ground for his disbarment or suspension if the basis of such action includes any
of the acts hereinabove enumerated.

The judgment, resolution or order of the foreign court or disciplinary agency shall be prima
facie evidence of the ground for disbarment or suspension (Emphasis and underscoring
supplied),

under scandalous circumstances.34

The immediately-quoted Rule which provides the grounds for disbarment or suspension uses the
phrase "grossly immoral conduct," not "under scandalous circumstances." Sexual intercourse
under scandalous circumstances is, following Article 334 of the Revised Penal Code reading:

ART. 334. Concubinage. - Any husband who shall keep a mistress in the conjugal dwelling,
or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not
his wife, or shall cohabit with her in any other place, shall be punished by prision correccional
in its minimum and medium periods.

x x x x,

an element of the crime of concubinage when a married man has sexual intercourse with a woman
elsewhere.

"Whether a lawyer's sexual congress with a woman not his wife or without the benefit of marriage
should be characterized as 'grossly immoral conduct' depends on the surrounding
circumstances."35 The case at bar involves a relationship between a married lawyer and a married
woman who is not his wife. It is immaterial whether the affair was carried out discreetly. Apropos is
the following pronouncement of this Court in Vitug v. Rongcal:36

On the charge of immorality, respondent does not deny that he had an extra-marital affair
with complainant, albeit brief and discreet, and which act is not "so corrupt and false as to
constitute a criminal act or so unprincipled as to be reprehensible to a high degree" in order
to merit disciplinary sanction. We disagree.

xxxx

While it has been held in disbarment cases that the mere fact of sexual relations between
two unmarried adults is not sufficient to warrant administrative sanction for such illicit
behavior, it is not so with respect to betrayals of the marital vow of fidelity. Even if not all
forms of extra-marital relations are punishable under penal law, sexual relations outside
marriage is considered disgraceful and immoral as it manifests deliberate disregard of the
sanctity of marriage and the marital vows protected by the Constitution and affirmed by
our laws.37 (Emphasis and underscoring supplied)

And so is the pronouncement in Tucay v. Atty. Tucay:38

The Court need not delve into the question of whether or not the respondent did contract a
bigamous marriage . . . It is enough that the records of this administrative case substantiate
the findings of the Investigating Commissioner, as well as the IBP Board of Governors, i.e.,
that indeed respondent has been carrying on an illicit affair with a married woman, a
grossly immoral conduct and indicative of an extremely low regard for the fundamental
 ethics of his profession. This detestable behavior renders him regrettably unfit and
undeserving of the treasured honor and privileges which his license confers upon
him.39 (Underscoring supplied)

Respondent in fact also violated the lawyer's oath he took before admission to practice law which
goes:

I _________, having been permitted to continue in the practice of law in the Philippines, do
solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I
will support its Constitution and obey the laws as well as the legal orders of the duly
constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court;
I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give
aid nor consent to the same; I will delay no man for money or malice, and will conduct myself
as a lawyer according to the best of my knowledge and discretion with all good fidelity as
well as to the courts as to my clients; and I impose upon myself this voluntary obligation
without any mental reservation or purpose of evasion. So help me God. (Underscoring
supplied)

Respondent admittedly is aware of Section 2 of Article XV (The Family) of the Constitution reading:

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and
shall be protected by the State.

In this connection, the Family Code (Executive Order No. 209), which echoes this constitutional
provision, obligates the husband and the wife "to live together, observe mutual love, respect and
fidelity, and render mutual help and support." 40

Furthermore, respondent violated Rule 1.01 of Canon 1 of the Code of Professional Responsibility
which proscribes a lawyer from engaging in "unlawful, dishonest, immoral or deceitful conduct," and
Rule 7.03 of Canon 7 of the same Code which proscribes a lawyer from engaging in any "conduct
that adversely reflects on his fitness to practice law."

Clutching at straws, respondent, during the pendency of the investigation of the case before the IBP
Commissioner, filed a Manifestation41 on March 22, 2005 informing the IBP-CBD that complainant's
petition for nullity of his (complainant's) marriage to Irene had been granted by Branch 106 of the
Quezon City Regional Trial Court, and that the criminal complaint for adultery complainant filed
against respondent and Irene "based on the same set of facts alleged in the instant case," which
was pending review before the Department of Justice (DOJ), on petition of complainant, had been,
on motion of complainant, withdrawn.

The Secretary of Justice's Resolution of January 16, 2004 granting complainant's Motion to
Withdraw Petition for Review reads:

Considering that the instant motion was filed before the final resolution of the petition for
review, we are inclined to grant the same pursuant to Section 10 of Department Circular No.
70 dated July 3, 2000, which provides that "notwithstanding the perfection of the appeal, the
petitioner may withdraw the same at any time before it is finally resolved, in which case the
appealed resolution shall stand as though no appeal has been taken."42 (Emphasis
supplied by complainant)
That the marriage between complainant and Irene was subsequently declared void ab initio is
immaterial. The acts complained of took place before the marriage was declared null and void.43 As
a lawyer, respondent should be aware that a man and a woman deporting themselves as husband
and wife are presumed, unless proven otherwise, to have entered into a lawful contract of
marriage.44 In carrying on an extra-marital affair with Irene prior to the judicial declaration that her
marriage with complainant was null and void, and despite respondent himself being married, he
showed disrespect for an institution held sacred by the law. And he betrayed his unfitness to be a
lawyer.

As for complainant's withdrawal of his petition for review before the DOJ, respondent glaringly
omitted to state that before complainant filed his December 23, 2003 Motion to Withdraw his Petition
for Review, the DOJ had already promulgated a Resolution on September 22, 2003 reversing the
dismissal by the Quezon City Prosecutor's Office of complainant's complaint for adultery. In
reversing the City Prosecutor's Resolution, DOJ Secretary Simeon Datumanong held:

Parenthetically the totality of evidence adduced by complainant would, in the fair estimation

of the Department, sufficiently establish all the elements of the offense of adultery on the part
of both respondents. Indeed, early on, respondent Moje conceded to complainant that she
was going out on dates with respondent Eala, and this she did when complainant confronted
her about Eala's frequent phone calls and text messages to her. Complainant also personally
witnessed Moje and Eala having a rendezvous on two occasions. Respondent Eala never
denied the fact that he knew Moje to be married to complainant[.] In fact, he (Eala) himself
was married to another woman. Moreover, Moje's eventual abandonment of their conjugal
home, after complainant had once more confronted her about Eala, only served to confirm
the illicit relationship involving both respondents. This becomes all the more apparent by
Moje's subsequent relocation in No. 71-B, 11th Street, New Manila, Quezon City, which was a
few blocks away from the church where she had exchange marital vows with complainant.

It was in this place that the two lovers apparently cohabited. Especially since Eala's vehicle
and that of Moje's were always seen there. Moje herself admits that she came to live in the
said address whereas Eala asserts that that was where he held office. The happenstance
that it was in that said address that Eala and Moje had decided to hold office for the firm that
both had formed smacks too much of a coincidence. For one, the said address appears to
be a residential house, for that was where Moje stayed all throughout after her separation
from complainant. It was both respondent's love nest, to put short; their illicit affair that was
carried out there bore fruit a few months later when Moje gave birth to a girl at the nearby
hospital of St. Luke's Medical Center. What finally militates against the respondents is
the indubitable fact that in the certificate of birth of the girl, Moje furnished the information
that Eala was the father. This speaks all too eloquently of the unlawful and damning
nature of the adulterous acts of the respondents. Complainant's supposed illegal
procurement of the birth certificate is most certainly beside the point for both respondents
Eala and Moje have not denied, in any categorical manner, that Eala is the father of the
child Samantha Irene Louise Moje.45 (Emphasis and underscoring supplied)

It bears emphasis that adultery is a private offense which cannot be prosecuted de oficio and thus
leaves the DOJ no choice but to grant complainant's motion to withdraw his petition for review. But
even if respondent and Irene were to be acquitted of adultery after trial, if the Information for adultery
were filed in court, the same would not have been a bar to the present administrative complaint.

Citing the ruling in Pangan v. Ramos,46 viz:

 x x x The acquittal of respondent Ramos [of] the criminal charge is not a bar to these
[administrative] proceedings. The standards of legal profession are not satisfied by conduct
which merely enables one to escape the penalties of x x x criminal law. Moreover, this Court,
in disbarment proceedings is acting in an entirely different capacity from that which courts
assume in trying criminal case47 (Italics in the original),

this Court in Gatchalian Promotions Talents Pools, Inc. v. Atty. Naldoza,48 held:

Administrative cases against lawyers belong to a class of their own. They are distinct from
and they may proceed independently of civil and criminal cases.

WHEREFORE, the petition is GRANTED. Resolution No. XVII-2006-06 passed on January 28, 2006
by the Board of Governors of the Integrated Bar of the Philippines is ANNULLED and SET ASIDE.

Respondent, Atty. Jose Emmanuel M. Eala, is DISBARRED for grossly immoral conduct, violation of
his oath of office, and violation of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code of
Professional Responsibility.

Let a copy of this Decision, which is immediately executory, be made part of the records of
respondent in the Office of the Bar Confidant, Supreme Court of the Philippines. And let copies of
the Decision be furnished the Integrated Bar of the Philippines and circulated to all courts.

This Decision takes effect immediately.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

IN BANK

GR No. L-47388 October 22, 1940

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIANO R. MARCOS, ET AL., Defendants-appellants.

The defendants and appellants in their own behalf.

Office of the Solicitor-General Ozaeta and Solicitor Guerrero for appellee.

LAUREL, J .:

In the elections of 1934 in which Mariano Marcos and Julio Nalundasan, both of Batac, Ilocos Norte,
were rival candidates for the office of representative for the second district of said province,
Nalundasan was elected. The term for which the latter was elected was, however, cut short as a
result of the approval of the Constitution of the Philippines under the general elections for members
of the National Assembly were by law set for September 17, 1935. In these general elections Julio
Nalundasan and Mariano Marcos summarize their political rivalry and were opposing candidates for
assemblyman in the same district. In the strife Nalundasan again came out triumphant over
Marcos. In the afternoon of September 19, 1935, in celebration of Nalundasan's victory, a number of
these followers and partymen paraded in cars and trucks through the municipalities of Currimao,
Paoay and Batac, Ilocos Norte, and passed in front of the house of the Marcoses in Batac. The
parade is described as provocative and humiliating for the defeated candidate, Mariano Marcos. The
assemblyman-elect, Julio Nalundasan, was not, however, destined to reap the fruits of his political
laurels for on the night of September 20, 1935, he was shot and killed in his house in Batac. Very
intensive investigation of the crime by the Government authorities, particularly the Philippine
Constabulary, followed, as a consequence of which an information was filed in the Court of First
Instance of Ilocos Norte charging one Nicasio Layaoen, a businessman of Batac, Ilocos Norte, with
having committed the murder of Nalundasan. After trial, however, Layaoen was acquitted. This
acquittal resulted in another protracted investigation and detective work by the Governmental
agencies, particularly the Division of Investigation of the Department of Justice, with a view to
solving the Nalundasan murder. On December 7, 1938. or more than three years after the death of
Nalundasan, Mariano Marcos, Pio Marcos, Ferdinand Marcos and Quirino Lizardo were prosecuted
for the crime of murder in the Court of First Instance of Ilocos Norte under the following information:

That on or towards the night of September 20, 1935, in the Municipality of Batac, Ilocos
Norte Province, Philippines, and within the jurisdiction of this Honorable Court, the
defendants named above, armed with firearms, agreed and conspiring with each other,
voluntarily, elegally and criminally, with known treachery and premeditation and with the
 intention of killing, they shot Julio Nalundasan, then elected Deputy for the Second District of
Ilocos Norte, touching him on his right side, the bullet having interested internal vital organs ,
injuring them, which injuries caused the instant death of said Julio Nalundasan.

Fact committed in violation of the law and with the aggravating circumstances of night and
the crime having been committed in the home of the deceased.

On June 10, 1939, before the conclusion of the trial, Mariano Marcos, Pio Marcos, Ferdinand
Marcos and Quirino Lizardo filed eight separate complaints before the justice of the peace of Laoag,
Ilocos Norte, charging Calixto Aguinaldo, the principal witness for the prosecution , who was still
under cross-examination in the trial against Lizardo, with the offense of false testimony allegedly
committed in the preliminary investigation of December 7, 1938, and during the trial. The defense
had not yet completed the presentation of its evidence, and the prosecution was preparing its
rebuttal testimony. Upon motion of the provincial fiscal of Ilocos Norte, the trial court ordered the
provincial dismissal of the complaints. Fiscal Higinio Macadaeg also moved said court to find the
Marcoses and Lizardo guilty of contempt of court, by virtue of which the latter were ordered to show
cause why the motion should not be granted. After the conclusion of the trial, the Court of First
Instance of Ilocos Norte rendered judgment the dispositive parts of which read as follows:

En su virtud, el Juzgado halla a los acusados Quirino S. Lizardo y Ferdinand E. Marcos

culpables, fuera de toda duda recional, del delito de asesinato, con agravante de morada,
pero compensada por la atenuante de provocacion en el caso de Quirino S. Lizardo, y por la
circunstancia adicional de minoria de edad en el caso de Ferdinand E. Marcos, y condena al
primero a la pena de resolucion perpectua, a las accesorias de ley, y al pago de una cuarta
parte de las costas procesales; y al segundo, a la pena indeterminada de diez anos como
minima a diecisiete anos y cuatro meses como maxima, a las accesorias de ley, y al pago
de una cuarta parte de las costas procasales; y ambos a indemnizar mancomunada y
solidtriameiite a los herederos del occiso en la cantidad de mil pesos (P1,000), pero sin
prision subsidiaria en caso de Insolvencia; y se absuelve a los acusados Mariano R. Marcos
y Pio Marcos, con la mitad de las costas procesales de oficio, y con la cancelacion de la
fianza que han prestado para su libertad provisional.

Therefore, the Court declares the defendants in the incident guilty of contempt, and
condemns each one to pay a fine of P200, or to suffer the corresponding subsidiary prison in
case of insolvency or non-payment.

From this judgment the defendants Ferdinand Marcos and Quirino appealed, assigning the following
errors:

1. The trial court erred in according to greater credibility to the prosecution witnesses.

2. The trial court erred in convicting two and acquitting two accused upon the same
evidence.

3. The trial court erred in considering the character of Quirino Lizardo against the accused.

4. The trial court erred in not crediting the electoral census, Exhibit 84 for the defense, with
any probative value.  lawphil.net

5. The trial court erred in denying the motions of the accused for a reopening and a new trial.
 6. The trial court erred in finding the four accused- appellant guilty of contempt. 
1awphil.nêt

The defendants Mariano Marcos and Pio Marcos have also appealed, but only from so much of the
judgment as found them guilty of contempt. A three-volume brief was filed by the appellants and a
comprehensive brief submitted by the Government. Both briefs are, however, more valueable for
their literary value. Oral argument was had and doubtful points eliminated.

In view of the importance of the case and the fact that the Government asks for the extreme penalty
of death for the defendants-appellants, Ferdinand Marcos and Quirino Lizardo, we have taken over
the case on appeal with utmost caution and searching scrutiny of the evidence presented both by
the prosecution and by the defense. As a general rule, this court will not interfere with judgment of
the trial court in passing upon the weight or credibility that should be attached to the testimony of
witnesses; but this court may determine for itself the guilt or innocence of the defendant and may
modify or reverse the conclusions of fact laid down by the trial court if there is some fact or
circumstance of weight and influence which has been over- looked or the significance of which has
been misinterpreted.

The theory of the prosecution, stripped of nonessentials, is that Mariano Marcos, Pio Marcos,
Ferdinand Marcos and Quirino Lizardo were prompted to conspire against the life of Julio
Nalundasan by the latter's electoral victory over Mariano Marcos, father of Ferdinand and brother-in
law of Lizardo, on September 17, 1935; that Calixto Aguinaldo, the principal witness for the
prosecution, was a trusted and loyal attendant and bodyguard of Quirino Lizardo; that the said
Calixto Aguinaldo was present in various conference of the Marcoses and Lizardo, in the last of
which (that held on September 20, 1935) it was decided that Nalundasan must be killed; that
Ferdinand was selected as the trigger man because he was a marks- man and because, if
discovered and convicted, he would only be sent to Lolomboy reformatory school in view of his
age, and that Mariano Marcos, father of Ferdinand, would in the meantime be in Laoag; that about
nine o'clock in the evening of September 20, 1935, Ferdinand Marcos and Quirino Lizardo, the first
armed with an automatic pistol and the second with a police positive revolver, and accompanied by
Calixto Aguinaldo, left for the fatal mission and, upon reaching Nalundasan's yard, they posted
themselves at a point where they could not be detected but where they could get a full view of the
intended human target; that Calixto Aguinaldo was asked to watch while his two companions,
Ferdinand and Lizardo, were to execute the act that would put an end to Nalundasan's life; that
Calixto Aguinaldo, after waiting for a few minutes, was seized by fear as a result of which he
proceeded to return to the house of the Marcoses, but that on his way he heard the fatal shot from
the direction of Nalundasan's home; that Ferdinand fired the fatal shot at Nalundasan while the
latter's back was turned towards Ferdinand and Lizardo. On the other hand, the defense is one of
complete denial of participation by any of the herein defendants in the commission of the crime. It is
at once apparent that the validity of the theory of the prosecution rests upon the weight that should
be accorded to the testimony of Calixto Aguinaldo, the principal witness for the prosecution and the
alleged companion of the defendants-appellants, Quirino Lizardo and Ferdinand Marcos on the night
of the killing of Julio Nalundasan. s back was turned towards Ferdinand and Lizardo. On the other
hand, the defense is one of complete denial of participation by any of the herein defendants in the
commission of the crime. It is at once apparent that the validity of the theory of the prosecution rests
upon the weight that should be accorded to the testimony of Calixto Aguinaldo, the principal witness
for the prosecution and the alleged companion of the defendants-appellants, Quirino Lizardo and
Ferdinand Marcos on the night of the killing of Julio Nalundasan. s back was turned towards
Ferdinand and Lizardo. On the other hand, the defense is one of complete denial of participation by
any of the herein defendants in the commission of the crime. It is at once apparent that the validity of
the theory of the prosecution rests upon the weight that should be accorded to the testimony of
Calixto Aguinaldo, the principal witness for the prosecution and the alleged companion of the
defendants-appellants, Quirino Lizardo and Ferdinand Marcos on the night of the killing of Julio
Nalundasan.
It is important to observe that, as stated, immediately after the death of Nalundasan and as a result
of the efforts exerted by the agents of the Government, particularly the Philippine Constabulary,
Nicasio Layaoen, a businessman of Batac, Ilocos Norte, was prosecuted for the murder of
Nalundasan. In that case the star witness, Gaspar Silvestre, identified Layaoen as the man who fired
the fatal shot at Nalundasan on the night in question, and the prosecution, with the same
earnestness and vehemence exhibited in the case, prayed for the imposition of the extreme penalty
of death upon the accused Layaoen. In that case it was claimed that the accused Layaoen was seen
on the night in question with a revolver under the house of the deceased and that in a house
immediately adjoining that of Layaoen and under the care and control of his wife, the Constabulary
agents discovered eighty-one rounds of ammunition of the 22 long Lubaloy Western rifle, the brand
and class of bullet which was alleged in that case and is alleged in the present case to have killed
Nalundasan. Nevertheless the accused Layaoen was acquitted by the court of First instance of
Ilocos Norte.

According to Calixto Aguinaldo, the principal witness for the prosecution, he was present in the
various stages of the conspiracy to murder Nalundasan and, as noted above, he was present at the
time of the commission of the murder on the night of September 20, 1935. Aguinaldo also alleges to
have been present at the meeting in the house of the Marcoses in the morning of September 15th as
well as at the meetings in the morning and in the after- noon of September 20th, The very evidence
for the prosecution therefore shows that Calixto Aguinaldo was a coconspirator. His testimony
accordingly comes from a polluted source and should be received with a great deal of caution and,
for this reason, should be closely and carefully scrutinized.

It is noteworthy that Aguinaldo claims to have been present at the various stages of the conspiracy
and to have participated in the commission of the offense herein charged to the extent admitted by
him. Nevertheless he remained silent for approximately three years, it appearing that it was only in
November, 1938, that he broke his silence. The reason given the prosecution is that his loyalty to the
defendant Quirino Lizardo prevented him from betraying the latter's confidence, and in this
connection it was admitted in the argument by the representative of the prosecution that it was only
when Aguinaldo was approached by the Constabulary agents that he decided to speak out the
truth. The pretended loyalty of Aguinaldo is conspicuously disproved by the circumstance that, as
the prosecution itself admits, although he was asked to watch, he returned to the house of the
Marcoses before Ferdinand Marcos and Quirino Lizardo has executed the alleged fatal act. But
whatever might have Aguinaldo's reason, the fact is that his long continued silence creates serious
doubts in the mind of this Court as to his motives for breaking that silence. The change of attitude
could not have been due to a desireable impulse to serve the interest of justice and proves, if it
proves anything at all, the tardy revival of stultified civic consciousness.

According to the theory of the prosecution, Ferdinand was selected as the trigger man for two
reasons, namely: because he is experienced in pistol shooting, having been cadet major in the
University of the Philippines, and because he was below eighteen years of age and , if discovered
and convicted, would be merely sent to Lolomboy reformatory school. With reference to the first
reason, it is even represented that Mariano Marcos, father of Ferdinand, not only acquiesced in the
arrangement but apparently encouraged his son to perform the foul task, with the simple remark that
an assurance be made that the target was not missed and, if we may believe further the testimony of
Calixto Aguinaldo, that he (Mariano Marcos) was to go in the meantime to Laoag, Ilocos Norte,
thereby leaving his son to accomplish the dirty job while he, the person most affected by the
electoral triumph of Nalundasan, was to stay away safe and sound. This is something extraordinary
for a father to feel and to do, and we incline to reject the testimony of Aguinaldo and the inferences
deductible therefrom, because the story is, while possible, devoid of reasonable probability and
opposed to the lessons of common experience and the teachings of experimental psychology. As
regards the second reason, it appears that both the prosecution and the defense agree that
Ferdinand Marcos was at the time of the commission of the alleged offense already over eighteen
years of age. As a matter of fact, one of the ground invoked by the Solicitor-General in asking for the
modification of the judgment of the lower court and imposition of the death penalty upon this
appellant is that he was more than eighteen years old at the time of the commission of the offense. It
is of course reasonable to assume that at least his father and the interested party himself, if not his
uncle Pio Marcos and Quirino Lizardo, knew this fact. The theory that Ferdinand was chosen to be
the trigger man because of minority must therefore be decidedly false.

We find the claim of Calixto Aguinaldo that he was present at the alleged various conferences held
in the house of the Marcoses as a mere bodyguard of Quirino Lizardo to be incredible, in view of the
absence of a valid reason for the latter, admitted by the prosecution to be "a domineering, blustering
giant of a man" and by the trial court to be "a man with a strong physical constitution, with an
implusive, courageous and determined character," to employ as his bodyguard Calixto Aguinaldo,
who is only about one-half of Lizardo in size and who has not been shown to be capable, either by
experience or by nature, to discharge such office. More incredible still is alleged participation of
Aguinaldo in the actual conspiracy to kill Julio Nalundasan, especially in view of the fact
that, notwithstanding the attempt of the prosecution to show that he was a trusted man of Quirino
Lizardo, there is evidence to prove that the relationship between the two could not be said to be of
the best, it appearing, according to the admission of Aguinaldo himself, that he lost his job in the
Government by order of the University of Labor upon the strength of the findings in an administrative
investigation in which Lizardo testified Aguinaldo. It is hard to believe that either the Marcoses or
Quirino Lizardo would allow themselves to commit the stupidity of permitting Calixto Aguinaldo, who
was a stranger to the Marcoses and who, as already stated, had reason to be antagonistic to
Lizardo, to know their alleged plan to kill Nalundasan and of later asking Aguinaldo to merely play
the insignificant, nay unnecessary, role of watcher, unless it was the intention of the defendant
herein to facilitate the discovery of the alleged crime and to preserve the only means of their
conviction. Since, according to the theory of the prosecution, Ferdinand Marcos was selected to be
the trigger man, Quirino Lizardo, Mariano Marcos or Pio Marcos could easily have personally done
the alleged watching.

Calixto Aguinaldo testified that when he and Quirino Lizardo arrived at noon in Batac, Ilocos Norte,
Ferdinand was in the house of the Marcoses to whom he was introduced. It is a fact, however, that
Ferdinand was a student of the University of the Philippines and left Manila in the morning of
September 15, 1935, arriving in Batac only at 8:30 pm of that day. Aguinaldo therefore declared
falsely when he stated that he met Ferdinand in the house of the Marcoses at the time he
(Aguinaldo) and Lizardo arrived in Batac at noon of September 15, 1935.

The prosecution has pictured Quirino Lizardo as a person more interested and enthusiastic than his
brother-in-law, Mariano Marcos, in seeing the latter win in the elections of September 17, 1935,
against Julio Nalundasan at all costs. Thus it is represented that when Pio Marcos informed Lizardo
prior to the elections about the imminent defeat of Mariano Marcos, Lizardo is alleged to have
impulsively exclaimed "That cannot be!! If we are going to lose the election we will win in something
else, and it is. ... kill Nalundasan! With one bullet I will end politics in Ilocos! " In this connection it is
well to recall that after marriage of Quirino Lizardo to Maria Marcos, sister of Mariano and Pio
Marcos, animosity and ill feeling arose between the Marcoses and Lizardo as a result of family
questions, which culminated in the filing in court of a criminal complaint against Lizardo for
attempted homicide in which the offended party was the mother of the Marcoses. In the light of this
circumstance, we cannot align ourselves with the theory that Lizardo could thereafter have shown
such interest in the candidacy of Mariano Marcos as to take the initiative not only of suggesting but
of participating in the murder of Julio Nalundasan, even granting that previous family differences had
been patched up.
The trial court was of the opinion that the Marcoses and Lizardo conceived the idea of killing
Nalundasan with some seriousness only in the morning of September 209, 1935, after the
provocative and humiliating parade held by Nalundasan's followers and partymen in the afternoon of
the preceding day . But while the defeat of Marcos, followed by such insulting parade, might have
irritated the herein defendants, the existence of a motive alone, though perhaps an important
consideration, is not proof of the commission of a crime, much less of the guilt of the defendants-
appellants.

By and large, we find the testimony of Calixto Aguinaldo to be inherently improbable and full of
contradictions in important details. For this reason, we decline to give him any credit. In view of this
conclusion, we find it neither necessary nor profitable to examine the corroborative evidence
presented by the prosecution. Where the principal and basic evidence upon which the prosecution
rests its case fails, all evidence intended to support or corroborate it must likewise fail.

In passing we may state that the prosecution deserves commendation for the industry and zeal it
has displayed in this case, although its failure to obtain the conviction of Nicasio Layaoen in the first
case it is not necessarily vindicated by the instant effort to secure a judgment against the herein
defendants-appellants, unless the latter's guilt is shown to the point of a certain degree of moral
certainty and the judicial mind is set at ease as to their culpability.

The judgment of the lower court, HEREIN appealed from is accordingly reversed, and the
defendants-appellants, Ferdinand Marcos and Quirino Lizardo, acquitted of the charge of murder
and forthwith liberated from imprisonment and discharged from the custody of the law, with costs of
its own motion .

With reference to the incident of contempt, it appears that on June 10, 1939, the four accused below
filed eight separate complaints with the justice of the peace of Laoag, Ilocos Norte, charging the
principal witness for the prosecution, Calixto, Aguinaldo, with the crime of false testimony because of
alleged false declaration made by the latter in the preliminary investigation of December 7, 1938,
and during the trial of the aforesaid four accused. When the several complaints for false testimony
were filed, it appears that Calixto Aguinaldo was under cross-examination in the separate trial
against Quirino Lizardo, and the trial of the other three accused, Mariano, Pio and Ferdinand
Marcos, had not yet commenced. The judge of the Court of First Instance who was trying the murder
case, upon motion of the provincial fiscal of Ilocos Norte, ordered the provincial dismissal of the
various complaints filed in the justice of the peace court of Laoag against Calixto Aguinaldo and,
thereafter, a motion was presented asking that the Marcos and Lizardo be declared in
contempt. Lizardo and the Marcoses were ordered to show cause why they should not be punished
for contempt and, simultaneously with the judgment on the principal case for murder, Quirino
Lizardo, Mariano Marcos, Pio Marcos and Ferdinand Marcos were adjudged guilty of contempt and
sentenced each to pay a fine of two hundred pesos, with corresponding subsidiary imprisonment in
case of insolvency.

It is evident that the charges for false testimony filed by the four accused above mentioned could not
be decided until the main case for murder was disposed of, since no penalty could be meted out to
Calixto Aguinaldo for his alleged false testimony without first knowing the extent of the sentence to
be imposed against Lizardo and the Marcoses (Revised Penal Code, art. 180). The latter should
therefore have waited for the termination of the principal case in the lower court before filing the
charges for false testimony against Calixto Aguinaldo. Facts considered, we are of the opinion that
the action of the Marcoses and Lizards was calculated, or at least tended. directly or indirectly to
obstruct the administration of justice and that, therefore, the trial court properly found them guilty of
contempt. ( In reGomez, 6 Phil., 647; US vs . Jaca, 26 Phil., 100.) In view of the result, however,
arrived at in the main case, and Considering That the inherent power to punish for contempt Should
be exercised on the preservative and not on the vindictive principle (Villavicencio vs . Lukban 39
Phil., 778), and on the corrective and not on the retaliatory idea of punishment ( In re Lozano and
Quevedo, 54 Phil., 801), it is our view that this purpose is sufficiently achieved and the principle
amply vindicated with the imposition upon each of the four accused above mentioned of a fine of fifty
(50) pesos, with subsidiary imprisonment in case of insolvency. So ordered.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-30894 March 25, 1970

EDUARDO L. MARTELINO, CIRILO OROPESA, TEODORO FACELO, RUPERTO AMISOTO,

ALBERTO SOTECO, SOLFERINO TITONG, ET AL., petitioners,
vs.
JOSE ALEJANDRO, RUBEN S. MONTOYA, SIXTO R. ALHAMBRA, AVELINO C. MENEZ,
EFRAIN S. MACLANG, ET AL., respondents.

Amelito R. Mutuc for petitioners.

Colonel Manuel V. Reyes (Judge Advocate General, GSC), Major Samuel M. Soriano (JAGS), Major
Higinio E. Dacanay, Jr. (JAGS, PC) and Solicitor General Felix V. Makasiar, Assistant Solicitor
General Crispin V. Bautista, Solicitor Jaime M. Lantin and Guillermo Nakar, Jr. for respondents.

CASTRO, J.:

This case presents another aspect of the court-martial proceedings against the petitioner, Major
Eduardo Martelino, alias Abdul Latif Martelino, of the Armed Forces of the Philippines, and the
officers and men under him, for violation of the 94th and 97th Articles of War, as a result of the
alleged shooting on March 18, 1968 of some Muslim recruits then undergoing commando training on
the island of Corregidor. Once before the question was raised before this Court whether the general
court-martial, convened on April 6, 1968 to try the case against the petitioners, acquired jurisdiction
over the case despite the fact that earlier, on March 23, a complaint for frustrated murder had been
filed in the fiscal's office of Cavite City by Jibin Arula (who claimed to have been wounded in the
incident) against some of the herein petitioners. The proceedings had to be suspended until the
jurisdiction issue could be decided. On June 23, 1969 this Court ruled in favor of the jurisdiction of
the military court.1

The jurisdiction question thus settled, attention once again shifted to the general court-martial, but no
sooner had the proceedings resumed than another hitch developed. This came about as the
petitioners, the accused in the court-martial proceedings, in turn came to this Court, seeking relief
against certain orders of the general court-martial.

It appears that at the hearing on August 12, 1969 the petitioner Martelino sought the disqualification
of the President of the general court-martial, following the latter's admission that he read newspaper
stories of the Corregidor incident. The petitioner contended that the case had received such an
amount of publicity in the press and other news media and in fact was being exploited for political
purposes in connection with the presidential election on November 11, 1969 as to imperil his right to
a fair trial. After deliberating, the military court denied the challenge.

Thereafter the petitioners raised peremptory challenges against Col. Alejandro, as president of the
court-martial, and Col. Olfindo, Lt. Col. Camagay, Lt. Col. Valones, Lt. Col. Blanco and Col. Malig, as
members. With regard to peremptory challenges it was the petitioners' position that for each
specification each accused was entitled to one such challenge. They later changed their stand and
adopted that of the trial judge advocate that "for each specification jointly tried, all of the accused are
entitled to only 1 peremptory challenge; and that with respect to the specifications tried commonly,
each one of the accused is entitled to one peremptory challenge." They there contended that they
were entitled to a total of eleven peremptory challenges. On the other hand the court-martial ruled
that the accused were entitled to only one peremptory challenge as the specifications were being
jointly tried.

The petitioners therefore filed this petition for certiorari and prohibition, to nullify the orders of the
court-martial denying their challenges, both peremptory and for cause. They allege that the adverse
publicity given in the mass media to the Corregidor incident, coupled with the fact that it became an
issue against the administration in the 1969 elections, was such as to unduly influence the members
of the court-martial. With respect to peremptory challenges, they contend that they are entitled to
eleven such challenges, one for each specification.

On August 29, 1969 this Court gave due course to the petition, required the respondents as
members of the general court-martial to answer and, in the meantime, restrained them from
proceeding with the case.

In their answer the respondents assert that despite the publicity which the case had received, no
proof has been presented showing that the court-martial's president's fairness and impartiality have
been impaired. On the contrary, they claim, the petitioner's own counsel expressed confidence in the
"integrity, experience and background" of the members of the court. As a preliminary consideration,
the respondents urge this Court to throw out the petition on the ground that it has no power to review
the proceedings of the court-martial, "except for the purpose of ascertaining whether the military
court had jurisdiction of the person and subject matter, and whether, though having such jurisdiction,
it had exceeded its powers in the sentence pronounced," and that at any rate the petitioners failed to
exhaust remedies available to them within the military justice system.

It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings
of courts-martial, and that mere errors in their proceedings are not open to consideration. "The single
inquiry, the test, is jurisdiction."2 But it is equally true that in the exercise of their undoubted discretion,
courts-martial may commit such an abuse of discretion — what in the language of Rule 65 is referred to
as "grave abuse of discretion" — as to give rise to a defect in their jurisdiction. 3 This is precisely the point
at issue in this action suggested by its nature as one for certiorari and prohibition, namely, whether in
overruling the petitioners' challenges, the general court-martial committed such an abuse of discretion as
to call for the exercise of the corrective powers of this Court. It is thus obvious that no other way is open
to this Court by which it may avoid passing upon the constitutional issue thrust upon it. Nor will the fact
that there may be available remedies within the system of military justice bar review considering that the
questions raised are questions of law.4
And so the threshold question is whether the publicity given to the case against the petitioners was
such as to prejudice their right to a fair trial. As already stated, the petitioner Martelino challenged
the court-martial president on the ground that newspaper accounts of what had come to be referred
to as the "Corregidor massacre" might unduly influence the trial of their case. The petitioner's
counsel referred to a news item appearing in the July 29, 1969 issue of the Daily Mirror and cited
other news reports to the effect that "coffins are being prepared for the President (of the Philippines)
in Jolo," that according to Senator Aquino "massacre victims were given sea burial," and that
Senator Magsaysay, opposition Vice President candidate, had gone to Corregidor and "found bullet
shells." In addition the petitioners cite in this Court a Manila Times editorial of August 26, 1969 which
states that "The Jabidah [code name of the training operations] issue was bound to come up in the
course of the election campaign. The opposition could not possibly ignore an issue that is heavily
loaded against the administration." The petitioners argue that under the circumstances they could
not expect a just and fair trial and that, in overruling their challenge for cause based on this ground,
the general court-martial committed a grave abuse of discretion. In support of their contention they
invoke the rulings of the United States Supreme Court in Irvin v. Dowd,5 Rideau vs. Louisiana,6 Estes
v. Texas,7 and Shepard v. Maxwell.8

An examination of the cases cited, however, will show that they are widely disparate from this case
in a fundamental sense. In Irvin, for instance, the Supreme Court found that shortly after the
petitioner's arrest in connection with six murders committed in Vanderburgh County, Indiana, the
prosecutor and police officials issued press releases stating that the petitioner had confessed to the
six murders and that "a barrage of newspaper headlines articles, cartoons and pictures was
unleashed against him during the six or seven months preceding his trial." In reversing his
conviction, the Court said:

Here the "pattern of deep and bitter prejudice' shown to be present throughout the
community, ... was clearly reflected in the sum total of the voir dire examination of a
majority of the jurors finally placed in the jury box. Eight out of the 12 thought
petitioner was guilty. With such an opinion permeating their minds, it would be
difficult to say that each could exclude this preconception of guilt from his
deliberations. The influence that lurks in an opinion once formed is so persistent that
it unconsciously fights detachment from the processes of the average man. ... Where
one's life is at stake — and accounting for the frailties of human nature — we can
only say that in the light of the circumstances here the finding of impartiality does not
meet the constitutional standard.9

Irvin marks the first time a state conviction was struck down solely on the ground of prejudicial
publicity. 10 In the earlier case of Shepherd v. Florida, 11 which involved elements of publicity, the reversal of the conviction was based
solely on racial discrimination in the selection of the jury, although to concurring Justice Jackson, who was joined by Justice Frankfurter, "It is
hard to imagine a more prejudicial influence than a press release by the officer of the court charged with defendants' custody stating that
they had confessed, and here just such a statement unsworn to, unseen, uncross-examined and uncontradicted, was conveyed by the press
to the jury. 12

In Rideau, the petitioner, suspect in the robbery of a bank in Lake Charles, Louisiana and in the
kidnapping of three of its employees, and in the killing of one of them, was similarly given "trial by
publicity." Thus, the day after his arrest, a moving picture film was taken of him in an "interview" with
the sheriff. The "interview," which lasted approximately 20 minutes, consisted of interrogation by the
sheriff and admission by Rideau that he had perpetrated the bank robbery, kidnapping and murder.
The interview was seen and heard on television by 24,000 people. Two weeks later he was
arraigned. His lawyers promptly moved for a change of venue but their motion was denied and
Rideau was convicted and sentenced to death. Rideau's counsel had requested that jurors be
excused for cause, having exhausted all of their peremptory challenges, but these challenges for
cause had been denied by the trial judge. In reversing his conviction, the Court said:
 [W]e hold that it was a denial of due process of law to refuse the request for a
change of venue, after the people of Calcasieu Parish had been exposed repeatedly
and in depth to the spectacle of Rideau personally confessing in detail to the crimes
with which he was later to be charged. For anyone who has ever watched television
the conclusion cannot be avoided that this spectacle, to the tens of thousands of
people who saw and heard it, in a very real sense was Rideau's trial — at which he
pleaded guilty to murder. Any subsequent court proceedings in a community so
pervasively exposed to such a spectacle could be but a hollow formality. 13

In the third case, Estes, the Court voided a televised criminal trial for being inherently a denial of due process.

The state ... says that the use of television in the instant case was "without injustice
to the person immediately concerned," basing its position on the fact that the
petitioner has established no isolate prejudice and that this must be shown in order
to invalidate a conviction in these circumstances. The State paints too broadly in this
contention, for this Court itself has found instances in which a showing of actual
prejudice is not a prerequisite to reversal. This is such a case. It is true that in most
cases involving claims of due process deprivations we require a showing of
identifiable prejudice to the accused. Nevertheless, at times a procedure employed
by the State involves such a probability that prejudice will result that it is inherently
lacking in due process. 14

In Sheppard, the celebrated murder case of Sam Sheppard, who was accused of the murder of his wife Marilyn, the Supreme Court
observed a "carnival atmosphere" in which "bedlam reigned at the courthouse ... and newsmen took over practically the entire courtroom,
hounding most of the participants in the trial, especially Sheppard." It observed that "despite the extent and nature of the publicity to which
the jury was exposed during the trial, the judge refused defense counsel's other requests that the jury be asked whether they had read or
heard specific prejudicial comment about the case. ... In these circumstances, we assume that some of this material reached members of the
jury." The Court held:

From the cases coming here we note that unfair and prejudicial news comment on
pending trials has become increasingly prevalent. Due process requires that the
accused receive a trial by an impartial jury free from outside influences. Given the
pervasiveness of modern communications and the difficulty of effacing prejudicial
publicity from the minds of the jurors, the trial courts must take strong measures to
ensure that the balance is never weighed against the accused. And appellate
tribunals have the duty to make an independent evaluation of the circumstances. Of
course, there is nothing that proscribes the press from reporting events that transpire
in the courtroom. But where there is a reasonable likelihood that prejudicial news
prior to trial will prevent a fair trial, the judge should continue the case until the threat
abates, or transfer it to another county not so permeated with publicity. In addition
sequestration of the jury was something the judge should have sua sponte with
counsel. If publicity during the proceeding threatens the fairness of the trial, a new
trial should be ordered. But we must remember that reversals are but palliatives; the
cure lies in those remedial measures that will prevent the prejudice at its inception.
The courts must take such steps by rule and regulation that will protect their
processes from prejudicial outside interference. Neither prosecutors, counsel for
defense, the accused, witnesses, court staff nor enforcement officers coming under
the jurisdiction of the court should be permitted to frustrate its function. Collaboration
between counsel and the press as to information affecting the fairness of a criminal
trial is not only subject to regulation, but is highly censurable and worthy of
disciplinary measure. 15

In contrast the spate of publicity in this case before us did not focus on the guilt of the petitioners but rather on the responsibility of the
Government for what was claimed to be a "massacre" of Muslim trainees. If there was a "trial by newspaper" at all, it was not of the
petitioners but of the Government. Absent here is a showing of failure of the court-martial to protect the accused from massive publicity
encouraged by those connected with the conduct of the trial 16 either by a failure to control the release of information or to remove the trial to
another venue or to postpone it until the deluge of prejudicial publicity shall have subsided. Indeed we cannot say that the trial of the
petitioners was being held under circumstances which did not permit the observance of those imperative decencies of procedure which have
come to be identified with due process.

At all events, even granting the existence of "massive" and "prejudicial" publicity, since the
petitioners here do not contend that the respondents have been unduly influenced but simply that
they might be by the "barrage" of publicity, we think that the suspension of the court-martial
proceedings has accomplished the purpose sought by the petitioners' challenge for cause, by
postponing the trial of the petitioner until calmer times have returned. The atmosphere has since
been cleared and the publicity surrounding the Corregidor incident has so far abated that we believe
the trial may now be resumed in tranquility.

II

Article of War 18 provides that "Each side shall be entitled to one peremptory challenge, but the law
member of the court shall not be challenged except for cause." The general court-martial originally
interpreted this provision to mean that the entire defense was entitled to only one peremptory
challenge. Subsequently, on August 27, 1969, it changed its ruling and held that the defense was
entitled to eight peremptory challenges, but the petitioners declined to exercise their right to
challenge on the ground that this Court had earlier restrained further proceedings in the court-
martial.

It is the submission of the petitioners that "for every charge, each side may exercise one peremptory
challenge," and therefore because there are eleven charges they are entitled to eleven separate
peremptory challenges. The respondents, upon the other hand, argue that "for each specification
jointly tried, all of the accused are entitled to only one peremptory challenge and that with respect to
specifications tried commonly each of the accused is entitled to one peremptory challenge."
Although there are actually a total of eleven specifications against the petitioners, three of these
should be considered as merged with two other specifications, "since in fact they allege the same
offenses committed in conspiracy, thus leaving a balance of eight specifications." The general court-
martial thereof takes the position that all the 23 petitioners are entitled to a total of only eight
peremptory challenges.

We thus inescapably confront, and therefore now address, the issue here posed.

We are of the view that both the petitioners and the general court-martial misapprehend the true
meaning, intent and scope of Article of War 18. As will hereinafter be demonstrated, each of the
petitioners is entitled as a matter of right to one peremptory challenge. The number of specifications
and/or charges, and whether the accused are being jointly tried or undergoing a common trial, are of
no moment.

In the early formative years of the infant Philippine Army, after the passage in 1935 of
Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of
Philippine Scout officers and graduates of the United States military and naval academies who were
on duty with the Philippine Army, there was a complete dearth of officers learned in military law, this
aside from the fact that the officer corps of the developing army was numerically inadequate for the
demands of the strictly military aspects of the national defense program. Because of these
considerations it was then felt that peremptory challenges should not in the meanwhile be permitted
and that only challenges for cause, in any number, would be allowed. Thus Article 18 of the Articles
of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of
the Act, made no mention or reference to any peremptory challenge by either the trial judge
advocate of a court-martial or by the accused. After December 17, 1958, when the Manual for
Courts-Martial 17 of the Philippine Army became effective, the Judge Advocate General's Service of the Philippine Army conducted a
continuing and intensive program of training and education in military law, encompassing the length and breadth of the Philippines. This
program was pursued until the outbreak of World War II in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies
in 1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a great many of the officers had
been indoctrinated in military law. It was in these environmental circumstances that Article of War 18 was amended on June 12, 1948 to
entitle "each side" to one peremptory challenge, with the sole proviso that "the law member of court shall not be challenged except for
cause."

By its very inherent nature a peremptory challenge does not require any reason or ground therefor to
exist or to be stated. It may be used before, during, or after challenges for cause, or against a
member of the court-martial unsuccessfully challenged for cause, or against a new member if not
previously utilized in the trial. A member challenged peremptorily is forthwith excused from duty with
the court-martial.

The right of challenge comes from the common law with the trial by jury itself, and has always been
held essential to the fairness of trial by jury. 18

As was said by Blackstone, and repeated by Mr. Justice Story: 'In criminal cases, or
at least in capital ones, there is in favorem vitae, allowed to the prisoner an arbitrary
and capricious species of challenge to a certain number of jurors, without showing
any cause at all, which is called a peremptory challenge; a provision full of that
tenderness and humanity to prisoners, for which our English laws are justly famous.
This is grounded on two reasons: 1) As every one must be sensible, what sudden
impression and unaccountable prejudices we are apt to conceive upon the bare
looks and gestures of another; and how necessary it is that a prisoner (when put to
defend his life) should have a good opinion of his jury, the want of which might totally
disconcert him; the law has conceived a prejudice even without being able to assign
a reason for his dislike. 2) Because, upon challenges for cause shown, if the reason
assigned prove insufficient to set aside the juror, perhaps the bare questioning his
indifference may sometimes provoke a resentment, to prevent all ill consequences
from which, the prisoner is still at liberty, if he pleases, peremptorily to set him
aside.' 19

The right to challenge is in quintessence the right to reject, not to select. If from the officers who remain an impartial military court is obtained,
the constitutional right of the accused to a fair trial is maintained. ... 20

As we have hereinbefore stated, each of the 23 petitioners (accused before the general court-
martial) is entitled to one peremptory challenge, 21 irrespective of the number of specifications and/or
charges and regardless of whether they are tried jointly or in common. Three overriding reasons compel
us to this conclusion.

First, a peremptory challenge is afforded to an accused who, whether rightly or wrongly, honestly
feels that the member of the court peremptorily challenged by him cannot sit in judgment over him,
impartially. Every accused person is entitled to a fair trial. It is not enough that objectively the
members of the court may be fair and impartial. It is likewise necessary that subjectively the accused
must feel that he is being tried by a fair and impartial body of officers. Because the petitioners may
entertain grave doubts as to the fairness or impartiality of distinct, separate and different individual
members of the court-martial, it follows necessarily that each of the accused is entitled to one
peremptory challenge.

Second, Article of War 18 does not distinguish between common trials and joint trials, nor does it
make the nature or number of specifications and/or charges a determinant. Reference is made by
the respondents here to US military law, in support of their argument that for each specification
jointly tried all of the accused are entitled to only one peremptory challenge and with respect to all
specifications tried in common each of the accused is entitled to one peremptory challenge. We
have carefully scrutinized U.S. military law, and it is unmistakable from our reading thereof that each
accused person, whether in a joint or common trial, unquestionably enjoys the right to one
peremptory challenge. 22

Third, a perceptive analysis of the companion articles 23 to Article 18 convinces us that the word,
"each side," as used in the said article in reference to the defense, should be construed to
mean each accused person. Thus, Articles of War 17 (Trial Judge Advocate to Prosecute; Counsel
to Defend), 19 (Oath), 21 (Refusal or Failure to Plead), 28 (Court to Announce Action), 29 (Closed
Sessions), 30 (Method of Voting), and 36 (Irregularities — Effect of), unequivocally speak of and
refer to the "accused" in the singular.

ACCORDINGLY, subject to our pronouncement that each of the 23 petitioners is entitled to one
separate peremptory challenge, the present petition is denied. The temporary restraining order
issued by this Court on August 29, 1969 is hereby lifted. No pronouncement as to costs. .
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 119190 January 16, 1997

CHI MING TSOI, petitioner,

vs.
COURT OF APPEALS and GINA LAO-TSOI, respondents.

TORRES, JR., J.:

Man has not invented a reliable compass by which to steer a marriage in its journey over troubled
waters. Laws are seemingly inadequate. Over time, much reliance has been placed in the works of
the unseen hand of Him who created all things.

Who is to blame when a marriage fails?

This case was originally commenced by a distraught wife against her uncaring husband in the
Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of the marriage on
the ground of psychological incapacity. Petitioner appealed the decision of the trial court to
respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision
November 29, 1994 and correspondingly denied the motion for reconsideration in a resolution dated
February 14, 1995.

The statement of the case and of the facts made by the trial court and reproduced by the Court of
Appeals  its decision are as follows:
1

From the evidence adduced, the following acts were preponderantly established:

Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . .
Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A")

After the celebration of their marriage and wedding reception at the South Villa, Makati, they
went and proceeded to the house of defendant's mother.
There, they slept together on the same bed in the same room for the first night of their
married life.

It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were
supposed to enjoy making love, or having sexual intercourse, with each other, the defendant
just went to bed, slept on one side thereof, then turned his back and went to sleep . There
was no sexual intercourse between them during the first night. The same thing happened on
the second, third and fourth nights.

In an effort to have their honeymoon in a private place where they can enjoy together during
their first week as husband and wife, they went to Baguio City. But, they did so together with
her mother, an uncle, his mother and his nephew. They were all invited by the defendant to
join them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no
sexual intercourse between them, since the defendant avoided her by taking a long walk
during siesta time or by just sleeping on a rocking chair located at the living room. They slept
together in the same room and on the same bed since May 22, 1988 until March 15, 1989.
But during this period, there was no attempt of sexual intercourse between them. [S]he
claims, that she did not: even see her husband's private parts nor did he see hers.

Because of this, they submitted themselves for medical examinations to Dr. Eufemio
Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989.

The results of their physical examinations were that she is healthy, normal and still a virgin,
while that of her husband's examination was kept confidential up to this time. While no
medicine was prescribed for her, the doctor prescribed medications for her husband which
was also kept confidential. No treatment was given to her. For her husband, he was asked
by the doctor to return but he never did.

The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show
his penis. She said, that she had observed the defendant using an eyebrow pencil and
sometimes the cleansing cream of his mother. And that, according to her, the defendant
married her, a Filipino citizen, to acquire or maintain his residency status here in the country
and to publicly maintain the appearance of a normal man.

The plaintiff is not willing to reconcile with her husband.

On the other hand, it is the claim of the defendant that if their marriage shall be annulled by
reason of psychological incapacity, the fault lies with his wife.

But, he said that he does not want his marriage with his wife annulled for several
reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and he is
physically and psychologically capable; and, (3) since the relationship is still very young and
if there is any differences between the two of them, it can still be reconciled and that,
according to him, if either one of them has some incapabilities, there is no certainty that this
will not be cured. He further claims, that if there is any defect, it can be cured by the
intervention of medical technology or science.

The defendant admitted that since their marriage on May 22, 1988, until their separation on
March 15, 1989, there was no sexual contact between them. But, the reason for this,
according to the defendant, was that everytime he wants to have sexual intercourse with his
wife, she always avoided him and whenever he caresses her private parts, she always
removed his hands. The defendant claims, that he forced his wife to have sex with him only
 once but he did not continue because she was shaking and she did not like it. So he
stopped.

There are two (2) reasons, according to the defendant , why the plaintiff filed this case
against him, and these are: (1) that she is afraid that she will be forced to return the pieces of
jewelry of his mother, and, (2) that her husband, the defendant, will consummate their
marriage.

The defendant insisted that their marriage will remain valid because they are still very young
and there is still a chance to overcome their differences.

The defendant submitted himself to a physical examination. His penis was examined by Dr.
Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof,
Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is no
evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C")

The doctor said, that he asked the defendant to masturbate to find out whether or not he has
an erection and he found out that from the original size of two (2) inches, or five (5)
centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter. Dr.
Alteza said, that the defendant had only a soft erection which is why his penis is not in its full
length. But, still is capable of further erection, in that with his soft erection, the defendant is
capable of having sexual intercourse with a woman.

In open Court, the Trial Prosecutor manifested that there is no collusion between the parties
and that the evidence is not fabricated." 2

After trial, the court rendered judgment, the dispositive portion of which reads:

ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into
by the plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica of the
Immaculate Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio de Vera.
Without costs. Let a copy of this decision be furnished the Local Civil Registrar of Quezon
City. Let another copy be furnished the Local Civil Registrar of Manila.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 170338             December 23, 2008

VIRGILIO O. GARCILLANO, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC
ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND
COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL
REFORMS, respondents.

x----------------------x

G.R. No. 179275             December 23, 2008

SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,

vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE
PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.

x----------------------x

MAJ. LINDSAY REX SAGGE, petitioner-in-intervention

x----------------------x

AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON,

PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F.
TRILLANES, respondents-intervenors

DECISION

NACHURA, J.:

More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly
between the President of the Philippines and a high-ranking official of the Commission on Elections
(COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a
controversy that placed the legitimacy of the present administration on the line, and resulted in the
near-collapse of the Arroyo government. The tapes, notoriously referred to as the "Hello Garci"
tapes, allegedly contained the President’s instructions to COMELEC Commissioner Virgilio
Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings
were to become the subject of heated legislative hearings conducted separately by committees of
both Houses of Congress.1

In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G.
Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a congressional
investigation jointly conducted by the Committees on Public Information, Public Order and Safety,
National Defense and Security, Information and Communications Technology, and Suffrage and
Electoral Reforms (respondent House Committees). During the inquiry, several versions of the
wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI)
Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel
Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the
supposed three-hour taped conversation. After prolonged and impassioned debate by the committee
members on the admissibility and authenticity of the recordings, the tapes were eventually played in
the chambers of the House.2

On August 3, 2005, the respondent House Committees decided to suspend the hearings indefinitely.
Nevertheless, they decided to prepare committee reports based on the said recordings and the
testimonies of the resource persons.3

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a
Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of
Preliminary Injunction4 docketed as G.R. No. 170338. He prayed that the respondent House
Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped
conversations in their committee reports and for any other purpose. He further implored that the said
recordings and any reference thereto be ordered stricken off the records of the inquiry, and the
respondent House Committees directed to desist from further using the recordings in any of the
House proceedings.5

Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly
stopped.

After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a
privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson
promised to provide the public "the whole unvarnished truth – the what’s, when’s, where’s, who’s
and why’s" of the alleged wiretap, and sought an inquiry into the perceived willingness of
telecommunications providers to participate in nefarious wiretapping activities.

On motion of Senator Francis Pangilinan, Senator Lacson’s speech was referred to the Senate
Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who had
previously filed two bills6 seeking to regulate the sale, purchase and use of wiretapping equipment
and to prohibit the Armed Forces of the Philippines (AFP) from performing electoral duties. 7

In the Senate’s plenary session the following day, a lengthy debate ensued when Senator Richard
Gordon aired his concern on the possible transgression of Republic Act (R.A.) No. 4200 8 if the body
were to conduct a legislative inquiry on the matter. On August 28, 2007, Senator Miriam Defensor-
Santiago delivered a privilege speech, articulating her considered view that the Constitution
absolutely bans the use, possession, replay or communication of the contents of the "Hello Garci"
tapes. However, she recommended a legislative investigation into the role of the Intelligence Service
of the AFP (ISAFP), the Philippine National Police or other government entities in the alleged illegal
wiretapping of public officials.9
On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the
Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction, 10 docketed as G.R. No. 179275,
seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main
that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the
Constitution.11

As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on the
"Hello Garci" tapes on September 7,12 1713 and October 1,14 2007.

Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino,

Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F.
Trillanes filed their Comment16 on the petition on September 25, 2007.

The Court subsequently heard the case on oral argument. 17

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource
persons summoned by the Senate to appear and testify at its hearings, moved to intervene as
petitioner in G.R. No. 179275. 18

On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275. 19

It may be noted that while both petitions involve the "Hello Garci" recordings, they have different
objectives–the first is poised at preventing the playing of the tapes in the House and their
subsequent inclusion in the committee reports, and the second seeks to prohibit and stop the
conduct of the Senate inquiry on the wiretapped conversation.

The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275.

-I-

Before delving into the merits of the case, the Court shall first resolve the issue on the parties’
standing, argued at length in their pleadings.

In Tolentino v. COMELEC,20 we explained that "‘[l]egal standing’ or locus standi refers to a personal

and substantial interest in a case such that the party has sustained or will sustain direct injury
because of the challenged governmental act x x x," thus,

generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action.21

The gist of the question of standing is whether a party has "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult constitutional
questions."22

However, considering that locus standi is a mere procedural technicality, the Court, in recent cases,
has relaxed the stringent direct injury test. David v. Macapagal-Arroyo23 articulates that a "liberal
policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations
to prosecute actions involving the constitutionality or validity of laws, regulations and rulings." 24 The
fairly recent Chavez v. Gonzales25 even permitted a non-member of the broadcast media, who failed
to allege a personal stake in the outcome of the controversy, to challenge the acts of the Secretary
of Justice and the National Telecommunications Commission. The majority, in the said case, echoed
the current policy that "this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal questions that greatly impact
on public interest, in keeping with the Court’s duty under the 1987 Constitution to determine whether
or not other branches of government have kept themselves within the limits of the Constitution and
the laws, and that they have not abused the discretion given to them." 26

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that
he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly identified by the
members of the respondent committees as one of the voices in the recordings. 27 Obviously,
therefore, petitioner Garcillano stands to be directly injured by the House committees’ actions and
charges of electoral fraud. The Court recognizes his standing to institute the petition for prohibition.

In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are
concerned citizens, taxpayers, and members of the IBP. They are of the firm conviction that any
attempt to use the "Hello Garci" tapes will further divide the country. They wish to see the legal and
proper use of public funds that will necessarily be defrayed in the ensuing public hearings. They are
worried by the continuous violation of the laws and individual rights, and the blatant attempt to abuse
constitutional processes through the conduct of legislative inquiries purportedly in aid of legislation. 28

Intervenor Sagge alleges violation of his right to due process considering that he is summoned to
attend the Senate hearings without being apprised not only of his rights therein through the
publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, but also of
the intended legislation which underpins the investigation. He further intervenes as a taxpayer
bewailing the useless and wasteful expenditure of public funds involved in the conduct of the
questioned hearings.29

Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that
intervenor Sagge asserts his constitutional right to due process,30 they satisfy the requisite personal
stake in the outcome of the controversy by merely being citizens of the Republic.

Following the Court’s ruling in Francisco, Jr. v. The House of Representatives,31 we find sufficient
petitioners Ranada’s and Agcaoili’s and intervenor Sagge’s allegation that the continuous conduct by
the Senate of the questioned legislative inquiry will necessarily involve the expenditure of public
funds.32 It should be noted that in Francisco, rights personal to then Chief Justice Hilario G. Davide,
Jr. had been injured by the alleged unconstitutional acts of the House of Representatives, yet the
Court granted standing to the petitioners therein for, as in this case, they invariably invoked the
vindication of their own rights–as taxpayers, members of Congress, citizens, individually or in a class
suit, and members of the bar and of the legal profession–which were also supposedly violated by the
therein assailed unconstitutional acts.33

Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor
Sagge advance constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. The issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, and should be resolved for the
guidance of all.34
Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior cases
climaxing in the more recent case of Chavez, the Court recognizes the legal standing of petitioners
Ranada and Agcaoili and intervenor Sagge.

- II -

The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed
in our prior decisions is the principle that the exercise by this Court of judicial power is limited to the
determination and resolution of actual cases and controversies. 35 By actual cases, we mean existing
conflicts appropriate or ripe for judicial determination, not conjectural or anticipatory, for otherwise
the decision of the Court will amount to an advisory opinion. The power of judicial inquiry does not
extend to hypothetical questions because any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities. 36 Neither will the Court
determine a moot question in a case in which no practical relief can be granted. A case becomes
moot when its purpose has become stale.37 It is unnecessary to indulge in academic discussion of a
case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in
the nature of things, cannot be enforced.38

In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance
of an injunctive writ to prohibit the respondent House Committees from playing the tape recordings
and from including the same in their committee report. He likewise prays that the said tapes be
stricken off the records of the House proceedings. But the Court notes that the recordings were
already played in the House and heard by its members. 39 There is also the widely publicized fact that
the committee reports on the "Hello Garci" inquiry were completed and submitted to the House in
plenary by the respondent committees.40 Having been overtaken by these events, the Garcillano
petition has to be dismissed for being moot and academic. After all, prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an
act already accomplished.41

- III -

As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to
continue with the conduct of the questioned legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the House of
Representatives, or any of its respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure." The requisite of publication of the rules is
intended to satisfy the basic requirements of due process.42 Publication is indeed imperative, for it
will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or
rule of which he had no notice whatsoever, not even a constructive one. 43 What constitutes
publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after
15 days following the completion of their publication either in the Official Gazette, or in a newspaper
of general circulation in the Philippines."44

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in
newspapers of general circulation only in 1995 and in 2006. 45 With respect to the present Senate of
the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007,
no effort was undertaken for the publication of these rules when they first opened their session.
Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on
Accountability of Public Officers and Investigations,46 we said:

Fourth, we find merit in the argument of the OSG that respondent Committees likewise
violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in
accordance with the "duly published rules of procedure." We quote the OSG’s
explanation:

The phrase "duly published rules of procedure" requires the Senate of every
Congress to publish its rules of procedure governing inquiries in aid of legislation
because every Senate is distinct from the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half of the Senate’s membership, the
composition of the Senate also changes by the end of each term. Each Senate may
thus enact a different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation conducted by
the 14th Senate, are therefore, procedurally infirm.

Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the
following rationalization:

The present Senate under the 1987 Constitution is no longer a continuing legislative body.
The present Senate has twenty-four members, twelve of whom are elected every three years
for a term of six years each. Thus, the term of twelve Senators expires every three years,
leaving less than a majority of Senators to continue into the next Congress. The 1987
Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a
quorum to do business." Applying the same reasoning in Arnault v. Nazareno, the Senate
under the 1987 Constitution is not a continuing body because less than majority of the
Senators continue into the next Congress. The consequence is that the Rules of
Procedure must be republished by the Senate after every expiry of the term of twelve
Senators.47

The subject was explained with greater lucidity in our Resolution48 (On the Motion for
Reconsideration) in the same case, viz.:

On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing," as it is not
dissolved as an entity with each national election or change in the composition of its
members. However, in the conduct of its day-to-day business the Senate of each Congress
acts separately and independently of the Senate of the Congress before it. The Rules of the
Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the
next session in the same status.

All pending matters and proceedings shall terminate upon the expiration of
one (1) Congress, but may be taken by the succeeding Congress as if present for
the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and practicality of such a rule is
readily apparent considering that the Senate of the succeeding Congress (which will typically
have a different composition as that of the previous Congress) should not be bound by the
acts and deliberations of the Senate of which they had no part. If the Senate is a continuing
body even with respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter of course,
continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of
the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the
Senate’s main rules of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be presented
at least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval.

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall
remain in force until they are amended or repealed.

Section 136 of the Senate Rules quoted above takes into account the new composition of
the Senate after an election and the possibility of the amendment or revision of the Rules at
the start of each session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be
valid from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general circulation." The latter does
not explicitly provide for the continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of Senate rules, it cannot
be presumed that the Rules (on legislative inquiries) would continue into the next Congress.
The Senate of the next Congress may easily adopt different rules for its legislative inquiries
which come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress
or otherwise make the published rules clearly state that the same shall be effective in
 subsequent Congresses or until they are amended or repealed to sufficiently put public on
notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.

Respondents justify their non-observance of the constitutionally mandated publication by arguing

that the rules have never been amended since 1995 and, despite that, they are published in booklet
form available to anyone for free, and accessible to the public at the Senate’s internet web page. 49

The Court does not agree. The absence of any amendment to the rules cannot justify the Senate’s
defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The
organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of
legislation only in accordance with duly published rules of procedure, and does not make any
distinction whether or not these rules have undergone amendments or revision. The constitutional
mandate to publish the said rules prevails over any custom, practice or tradition followed by the
Senate.

Justice Carpio’s response to the same argument raised by the respondents is illuminating:

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under the Tañada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of general circulation. The Rules
of Procedure even provide that the rules "shall take effect seven (7) days after publication in
two (2) newspapers of general circulation," precluding any other form of publication.
Publication in accordance with Tañada is mandatory to comply with the due process
requirement because the Rules of Procedure put a person’s liberty at risk. A person who
violates the Rules of Procedure could be arrested and detained by the Senate.

The invocation by the respondents of the provisions of R.A. No. 8792, 50 otherwise known as the
Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all
the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as
the functional equivalent of a written document only for evidentiary purposes.51 In other words, the
law merely recognizes the admissibility in evidence (for their being the original) of electronic data
messages and/or electronic documents.52 It does not make the internet a medium for publishing
laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the
Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases.
The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have
caused the publication of the rules, because it can do so only "in accordance with its duly published
rules of procedure."

Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we
take judicial notice of this fact, the recent publication does not cure the infirmity of the inquiry sought
to be prohibited by the instant petitions. Insofar as the consolidated cases are concerned, the
legislative investigation subject thereof still could not be undertaken by the respondent Senate
Committees, because no published rules governed it, in clear contravention of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in
the consolidated petitions.

WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275
is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the Republic of the
Philippines and/or any of its committees from conducting any inquiry in aid of legislation centered on
the "Hello Garci" tapes.

SO ORDERED.