Name: Gonzales, Aliza Kyra R.
Committee of examiners –committee of bar examiners to be
Program & Section: Bachelor of Science in Legal Management 2C
Subject Course: Introduction to Law and Legal Profession
LEGAL ETHICS
Lawyer’s Oath
I, do solemnly swear that I will maintain allegiance to the Republic of the
Philippines, I will support the 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, or 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 to the courts as to my clients; and I impose upon myself these voluntary
obligations without any mental reservation or purpose of evasion. So help me
God.
Attorneys & Admission to the Bar (Rule 138)
Section 1. Who may practice law – good and regular standing is entitled to
practice law
Section 2. Requirements for all applicant for admission to the bar –must be a
citizen of the Philippines, twenty-one years of age, good moral character,
resident of the Philippines, no charges against him including moral turpitude
Section 3. Requirements for lawyers who are citizen of the United States of
America –before July 4, 1946 they were duly licensed members of the
Philippine Bar, active practice in the court of the Philippines, good and regular
standing
Section 4. Requirements for applicant from other jurisdiction –they have
practice at least five years in any of the said court. They have never been
suspended or disbarred
Section 5. Additional requirements for other applicants –completed the
following courses in law school or university that is duly recognized by the
government: civil law, commercial law, remedial law, criminal law, public and
private international law, political law, labor and social legislation, medical
jurisprudence, taxation and legal ethics
Section 6. Pre-Law –no longer applies
Note: any college degree that met the minimum for certain subjects (Social
Science -18 units, Mathematics -9 units, English -9 units)
Section 7. Time for filling proof of qualification –at least fifteen days before the
beginning of the examination, shall exhibit a license evidencing the fact of their
admission to practice, satisfactory evidence that the same has not been revoked,
certificates as to their professional standing, and affidavits as to their age,
residence, and citizenship
Section 8. Notice of application –admission shall be published by the clerk of
the Supreme Court in newspaper for at least ten days before the beginning of
the examination
Section 9. Examination; Subjects
Section 10. Bar examination, by question and answers, and in writing –shall
not bring papers, books or notes into the examination rooms. Questions shall be
the same for all examinees. Examinees shall answer the questions personally
without the help from anyone. Examinees that have poor penmanship that will
be difficult to understand Supreme Court may allow to use noiseless typewriter
Section 11. Annual Examination –examination held in four days in the city of
Manila. The subjects shall be distributed as follows:
1st Day: Political and International Law (morning) and Labor and Social
Legislation (afternoon)
2nd Day: Civil Law (morning) and Taxation (afternoon)
3rd Day: Mercantile Law (morning) and Criminal Law (afternoon)
4th Day: Remedial Law (morning) and Legal Ethics and Practical Exercises
(afternoon)
Section 12.
appointed by the Supreme Court
Section 13. Disciplinary measures
Section 14. Passing average –seventy five percent in all subjects
Section 15. Report of the committee; filing of examination papers
Section 16. Failing candidate to take review course –candidate who have failed
the bar examinations for three times shall be disqualified from taking another
examination unless they show the satisfaction of the court. Have enrolled in and
passed regular fourth year review classes
Section 17. Admission and oath of successful applicants
Section 18. Certificate –the Supreme Court shall thereupon admit the applicant
as a member of the bar for all the court of the Philippines. Certificate shall be
his authority to practice
Section 19. Attorneys’ roll –signed by the person admitted when he receives his
certificate
Section 20. Duties of attorneys
Section 21. Authority of attorney to appear
Section 22. Attorney who appears in lower court presumed to represent client
on appeal
Section 23. Authority of attorney to bind clients
Section 24. Compensation of attorneys; agreement as to fees
Section 25. Unlawful retention of client’s funds; contempt
Section 26. Change of attorneys
Section 27. Attorneys removed or suspended by Supreme Court on what
grounds
Section 28. Suspension of attorneys by the Court of Appeals or a Court of First
Instance
Section 29. Upon suspension by the Court of Appeals or a Court of First
Instance, further proceedings in Supreme Court
Section 30. Attorneys to be heard before removal or suspension
Section 31. Attorneys for destitute litigants
Section 32. Compensation for attorneys de officio
Section 33. Standing in court of persons authorized to appear for Government
Section 34. By whom litigation conducted
Section 35. Certain attorneys not to practice
Section 36. Amicus curiae
Section 37. Attorneys’ liens
The Integrated Bar of the Philippines (Rule 139-A)
Section 1. Organization
Section 2. Purposes –elevate standard of the legal profession, improve the
administration of justice, and enable the Bar to discharge its public
responsibility more effectively
Section 3. Regions –the Philippines is hereby divided into nine regions
Section 4. Chapters –chapters of the IBP shall be organized in every province
Section 5. House of delegates –consist of 120 members
Section 9. Membership dues –pay annual dues
Section 10. Effect of non-payment of dues –payment of annual dues for six
month shall warrant suspension of membership in the IBP, and default in such
payment for one year shall be a ground for the removal of the name from roll
of attorneys. You cannot practice law anymore
Section 11. Voluntary termination of membership; reinstatement –member may
terminate his membership by filling a written notice
Code of Professional Responsibility
CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY
THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW OF
AND LEGAL PROCESSES.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of
the law or at lessening confidence in the legal system.
Rule 1.03 - A lawyer shall not, for any corrupt motive or interest, encourage
any suit or proceeding or delay any man's cause.
Rule 1.04 - A lawyer shall encourage his clients to avoid, end or settle a
controversy if it will admit of a fair settlement.
CANON 2 - A LAWYER SHALL MAKE HIS LEGAL SERVICES
AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER
COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND
EFFECTIVENESS OF THE PROFESSION.
Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of the
defenseless or the oppressed.
Rule 2.02 - In such cases, even if the lawyer does not accept a case, he shall not
refuse to render legal advice to the person concerned if only to the extent
necessary to safeguard the latter's rights.
Rule 2.03 - A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.
Rule 2.04 - A lawyer shall not charge rates lower than those customarily
prescribed unless the circumstances so warrant.
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES
SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE
INFORMATION OR STATEMENT OF FACTS.
Rule 3.01 - A lawyer shall not use or permit the use of any false, fraudulent,
misleading, deceptive, undignified, self-laudatory or unfair statement or claim
regarding his qualifications or legal services.
Rule 3.02 - In the choice of a firm name, no false, misleading or assumed name
shall be used. The continued use of the name of a deceased partner is
permissible provided that the firm indicates in all its communications that said
partner is deceased.
Rule 3.03 - Where a partner accepts public office, he shall withdrawal from the
firm and his name shall be dropped from the firm name unless the law allows
him to practice law currently.
Rule 3.04 - A lawyer shall not pay or give anything of value to representatives
of the mass media in anticipation of, or in return for, publicity to attract legal
business.
CANON 4 - A LAWYER SHALL PARTICIPATE IN THE DEVELOPMENT
OF THE LEGAL SYSTEM BY INITIATING OR SUPPORTING EFFORTS
IN LAW REFORM AND IN THE IMPROVEMENT OF THE
ADMINISTRATION OF JUSTICE.
CANON 5 - A LAWYER SHALL KEEP ABREAST OF LEGAL
DEVELOPMENTS, PARTICIPATE IN CONTINUING LEGAL
EDUCATION PROGRAMS, SUPPORT EFFORTS TO ACHIEVE HIGH
STANDARDS IN LAW SCHOOLS AS WELL AS IN THE PRACTICAL
TRAINING OF LAW STUDENTS AND ASSIST IN DISSEMINATING THE
LAW AND JURISPRUDENCE.
CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN
GOVERNMENT SERVICES IN THE DISCHARGE OF THEIR TASKS.
Rule 6.01 - The primary duty of a lawyer engaged in public prosecution is not
to convict but to see that justice is done. The suppression of facts or the
concealment of witnesses capable of establishing the innocence of the accused
is highly reprehensible and is cause for disciplinary action.
Rule 6.02 - A lawyer in the government service shall not use his public position
to promote or advance his private interests, nor allow the latter to interfere with
his public duties.
Rule 6.03 - A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which he had
intervened while in said service.
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
Rule 7.01 - A lawyer shall be answerable for knowingly making a false
statement or suppressing a material fact in connection with his application for
admission to the bar.
Rule 7.02 - A lawyer shall not support the application for admission to the bar
of any person known by him to be unqualified in respect to character, education,
or other relevant attribute.
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.
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH
COURTESY, FAIRNESS AND CANDOR TOWARDS HIS
PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING
TACTICS AGAINST OPPOSING COUNSEL.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which
is abusive, offensive or otherwise improper.
Rule 8.02 - A lawyer shall not, directly or indirectly, encroach upon the
professional employment of another lawyer, however, it is the right of any
lawyer, without fear or favor, to give proper advice and assistance to those
seeking relief against unfaithful or neglectful counsel.
CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY,
ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW.
Rule 9.01 - A lawyer shall not delegate to any unqualified person the
performance of any task which by law may only be performed by a member of
the bar in good standing.
Rule 9.02 - A lawyer shall not divide or stipulate to divide a fee for legal
services with persons not licensed to practice law, except:
(a) Where there is a pre-existing agreement with a partner or associate that, upon
the latter's death, money shall be paid over a reasonable period of time to his
estate or to persons specified in the agreement; or
(b) Where a lawyer undertakes to complete unfinished legal business of a
deceased lawyer; or
(c) Where a lawyer or law firm includes non-lawyer employees in a retirement
plan even if the plan is based in whole or in part, on a profit sharing agreement.
CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD
FAITH TO THE COURT.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of
any in Court; nor shall he mislead, or allow the Court to be misled by any
artifice.
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the
contents of a paper, the language or the argument of opposing counsel, or the
text of a decision or authority, or knowingly cite as law a provision already
rendered inoperative by repeal or amendment, or assert as a fact that which has
not been proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse
them to defeat the ends of justice.
CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE
RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND
SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.
Rule 11.01 - A lawyer shall appear in court properly attired.
Rule 11.02 - A lawyer shall punctually appear at court hearings.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing
language or behavior before the Courts.
Rule 11.04 - A lawyer shall not attribute to a Judge motives not supported by
the record or have no materiality to the case.
Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper
authorities only.
CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND
CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT
ADMINISTRATION OF JUSTICE.
Rule 12.01 - A lawyer shall not appear for trial unless he has adequately
prepared himself on the law and the facts of his case, the evidence he will
adduce and the order of its proferrence. He should also be ready with the
original documents for comparison with the copies.
Rule 12.02 - A lawyer shall not file multiple actions arising from the same
cause.
Rule 12.03 - A lawyer shall not, after obtaining extensions of time to file
pleadings, memoranda or briefs, let the period lapse without submitting the
same or offering an explanation for his failure to do so.
Rule 12.04 - A lawyer shall not unduly delay a case, impede the execution of a
judgment or misuse Court processes.
Rule 12.05 - A lawyer shall refrain from talking to his witness during a break
or recess in the trial, while the witness is still under examination.
Rule 12.06 - A lawyer shall not knowingly assist a witness to misrepresent
himself or to impersonate another.
Rule 12.07 - A lawyer shall not abuse, browbeat or harass a witness nor
needlessly inconvenience him.
Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except:
(a) on formal matters, such as the mailing, authentication or custody of an
instrument, and the like; or
(b) on substantial matters, in cases where his testimony is essential to the ends
of justice, in which event he must, during his testimony, entrust the trial of the
case to another counsel.
CANON 13 - A LAWYER SHALL RELY UPON THE MERITS OF HIS
CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO
INFLUENCE, OR GIVES THE APPEARANCE OF INFLUENCING THE
COURT.
Rule 13.01 - A lawyer shall not extend extraordinary attention or hospitality to,
nor seek opportunity for cultivating familiarity with Judges.
Rule 13.02 - A lawyer shall not make public statements in the media regarding
a pending case tending to arouse public opinion for or against a party.
Rule 13.03 - A lawyer shall not brook or invite interference by another branch
or agency of the government in the normal course of judicial proceedings.
CANON 14 - A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE
NEEDY.
Rule 14.01 - A lawyer shall not decline to represent a person solely on account
of the latter's race, sex. Creed or status of life, or because of his own opinion
regarding the guilt of said person.
Rule 14.02 - A lawyer shall not decline, except for serious and sufficient cause,
an appointment as counsel de officio or as amicus curiae, or a request from the
Integrated Bar of the Philippines or any of its chapters for rendition of free legal
aid.
Rule 14.03 - A lawyer may not refuse to accept representation of an indigent
client if:
(a) he is not in a position to carry out the work effectively or competently;
(b) he labors under a conflict of interest between him and the prospective client
or between a present client and the prospective client.
Rule 14.04 - A lawyer who accepts the cause of a person unable to pay his
professional fees shall observe the same standard of conduct governing his
relations with paying clients.
CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND
LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS
CLIENTS.
Rule 15.01. - A lawyer, in conferring with a prospective client, shall ascertain
as soon as practicable whether the matter would involve a conflict with another
client or his own interest, and if so, shall forthwith inform the prospective client.
Rule 15.02. - A lawyer shall be bound by the rule on privilege communication
in respect of matters disclosed to him by a prospective client.
Rule 15.03. - A lawyer shall not represent conflicting interests except by written
consent of all concerned given after a full disclosure of the facts.
Rule 15.04. - A lawyer may, with the written consent of all concerned, act as
mediator, conciliator or arbitrator in settling disputes.
Rule 15.05. - A lawyer when advising his client, shall give a candid and honest
opinion on the merits and probable results of the client's case, neither
overstating nor understating the prospects of the case.
Rule 15.06. - A lawyer shall not state or imply that he is able to influence any
public official, tribunal or legislative body.
Rule 15.07. - A lawyer shall impress upon his client compliance with the laws
and the principles of fairness.
Rule 15.08. - A lawyer who is engaged in another profession or occupation
concurrently with the practice of law shall make clear to his client whether he
is acting as a lawyer or in another capacity.
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS
PROFESSION.
Rule 16.01 - A lawyer shall account for all money or property collected or
received for or from the client.
Rule 16.02 - A lawyer shall keep the funds of each client separate and apart
from his own and those of others kept by him.
Rule 16.03 - A lawyer shall deliver the funds and property of his client when
due or upon demand. However, he shall have a lien over the funds and may
apply so much thereof as may be necessary to satisfy his lawful fees and
disbursements, giving notice promptly thereafter to his client. He shall also have
a lien to the same extent on all judgments and executions he has secured for his
client as provided for in the Rules of Court.
Rule 16.04 - A lawyer shall not borrow money from his client unless the client's
interest 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.
CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN HIM.
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE.
Rules 18.01 - A lawyer shall not undertake a legal service which he knows or
should know that he is not qualified to render. However, he may render such
service if, with the consent of his client, he can obtain as collaborating counsel
a lawyer who is competent on the matter.
Rule 18.02 - A lawyer shall not handle any legal matter without adequate
preparation.
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 19 - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL
WITHIN THE BOUNDS OF THE LAW.
Rule 19.01 - A lawyer shall employ only fair and honest means to attain the
lawful objectives of his client and shall not present, participate in presenting or
threaten to present unfounded criminal charges to obtain an improper advantage
in any case or proceeding.
Rule 19.02 - A lawyer who has received information that his client has, in the
course of the representation, perpetrated a fraud upon a person or tribunal, shall
promptly call upon the client to rectify the same, and failing which he shall
terminate the relationship with such client in accordance with the Rules of
Court.
Rule 19.03 - A lawyer shall not allow his client to dictate the procedure in
handling the case.
CANON 20 - A LAWYER SHALL CHARGE ONLY FAIR AND
REASONABLE FEES.
Rule 20.01 - A lawyer shall be guided by the following factors in determining
his fees:
(a) the time spent and the extent of the service rendered or required;
(b) the novelty and difficulty of the questions involved;
(c) The importance of the subject matter;
(d) The skill demanded;
(e) The probability of losing other employment as a result of acceptance of the
proffered case;
(f) The customary charges for similar services and the schedule of fees of the
IBP chapter to which he belongs;
(g) The amount involved in the controversy and the benefits resulting to the
client from the service;
(h) The contingency or certainty of compensation;
(i) The character of the employment, whether occasional or established; and
(j) The professional standing of the lawyer.
Rule 20.02 - A lawyer shall, in case of referral, with the consent of the client,
be entitled to a division of fees in proportion to the work performed and
responsibility assumed.
Rule 20.03 - A lawyer shall not, without the full knowledge and consent of the
client, accept any fee, reward, costs, commission, interest, rebate or forwarding
allowance or other compensation whatsoever related to his professional
employment from anyone other than the client.
Rule 20.04 - A lawyer shall avoid controversies with clients concerning his
compensation and shall resort to judicial action only to prevent imposition,
injustice or fraud.
CANON 21 - A LAWYER SHALL PRESERVE THE CONFIDENCE AND
SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT
RELATION IS TERMINATED.
Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client
except;
(a) When authorized by the client after acquainting him of the consequences of
the disclosure;
(b) When required by law;
(c) When necessary to collect his fees or to defend himself, his employees or
associates or by judicial action.
Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use
information acquired in the course of employment, nor shall he use the same to
his own advantage or that of a third person, unless the client with full knowledge
of the circumstances consents thereto.
Rule 21.03 - A lawyer shall not, without the written consent of his client, give
information from his files to an outside agency seeking such information for
auditing, statistical, bookkeeping, accounting, data processing, or any similar
purpose.
Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners
or associates thereof unless prohibited by the client.
Rule 21.05 - A lawyer shall adopt such measures as may be required to prevent
those whose services are utilized by him, from disclosing or using confidences
or secrets of the clients.
Rule 21.06 - A lawyer shall avoid indiscreet conversation about a client's affairs
even with members of his family.
Rule 21.07 - A lawyer shall not reveal that he has been consulted about a
particular case except to avoid possible conflict of interest.
CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY
FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.
Rule 22.01 - A lawyer may withdraw his services in any of the following case:
(a) when the client pursues an illegal or immoral course of conduct in
connection with the matter he is handling;
(b) When the client insists that the lawyer pursue conduct violative of these
canons and rules;
(c) When his inability to work with co-counsel will not promote the best interest
of the client;
(d) When the mental or physical condition of the lawyer renders it difficult for
him to carry out the employment effectively;
(e) When the client deliberately fails to pay the fees for the services or fails to
comply with the retainer agreement;
(f) When the lawyer is elected or appointed to public office; and
(g) Other similar cases.
Rule 22.02 - A lawyer who withdraws or is discharged shall, subject to a retainer
lien, immediately turn over all papers and property to which the client is
entitled, and shall cooperative with his successor in the orderly transfer of the
matter, including all information necessary for the proper handling of the
matter.
CIVIL CODE
Article 1. This Act shall be known as the "Civil Code of the Philippines." (n)
Art. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such publication. (1a)
Art. 3. Ignorance of the law excuses no one from compliance therewith. (2)
Art. 4. Laws shall have no retroactive effect, unless the contrary is provided. (3)
Art. 5. Acts executed against the provisions of mandatory or prohibitory laws
shall be void, except when the law itself authorizes their validity. (4a)
Art. 6. Rights may be waived, unless the waiver is contrary to law, public order,
public policy, morals, or good customs, or prejudicial to a third person with a
right recognized by law. (4a)
Art. 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution. (5a)
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution
shall form a part of the legal system of the Philippines. (n)
Art. 9. No judge or court shall decline to render judgment by reason of the
silence, obscurity or insufficiency of the laws. (6)
Art. 10. In case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice to prevail. (n)
Art. 11. Customs which are contrary to law, public order or public policy shall
not be countenanced. (n)
Art. 12. A custom must be proved as a fact, according to the rules of evidence.
(n)
Art. 13. When the laws speak of years, months, days or nights, it shall be
understood that years are of three hundred sixty-five days each; months, of
thirty days; days, of twenty-four hours; and nights from sunset to sunrise.
If months are designated by their name, they shall be computed by the number
of days which they respectively have.
In computing a period, the first day shall be excluded, and the last day included.
(7a)
Art. 14. Penal laws and those of public security and safety shall be obligatory
upon all who live or sojourn in the Philippine territory, subject to the principles
of public international law and to treaty stipulations. (8a)
Art. 15. Laws relating to family rights and duties, or to the status, condition
and legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad. (9a)
Art. 16. Real property as well as personal property is subject to the law of the
country where it is stipulated.
However, intestate and testamentary successions, both with respect to the order
of succession and to the amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever may be the nature of
the property and regardless of the country wherein said property may be found.
(10a)
Art. 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which
have, for their object, public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by determinations
or conventions agreed upon in a foreign country. (11a)
Art. 18. In matters which are governed by the Code of Commerce and special
laws, their deficiency shall be supplied by the provisions of this Code. (16a)
Art. 19. Every person must, in the exercise of his rights and in the performance
of his duties, act with justice, give everyone his due, and observe honesty and
good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes
damage to another, shall indemnify the latter for the same.
Art. 21. Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.
Art. 22. Every person who through an act of performance by another, or any
other means, acquires or comes into possession of something at the expense of
the latter without just or legal ground, shall return the same to him.
Art. 23. Even when an act or event causing damage to another's property was
not due to the fault or negligence of the defendant, the latter shall be liable for
indemnity if through the act or event he was benefited.
Art. 24. In all contractual, property or other relations, when one of the parties is
at a disadvantage on account of his moral dependence, ignorance, indigence,
mental weakness, tender age or other handicap, the courts must be vigilant for
his protection.
Art. 25. Thoughtless extravagance in expenses for pleasure or display during a
period of acute public want or emergency may be stopped by order of the courts
at the instance of any government or private charitable institution.
Art. 26. Every person shall respect the dignity, personality, privacy and peace
of mind of his neighbors and other persons. The following and similar acts,
though they may not constitute a criminal offense, shall produce a cause of
action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence:
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly
station in life, place of birth, physical defect, or other personal condition.
Art. 27. Any person suffering material or moral loss because a public servant or
employee refuses or neglects, without just cause, to perform his official duty
may file an action for damages and other relief against he latter, without
prejudice to any disciplinary administrative action that may be taken.
Art. 28. Unfair competition in agricultural, commercial or industrial enterprises
or in labor through the use of force, intimidation, deceit, machination or any
other unjust, oppressive or highhanded method shall give rise to a right of action
by the person who thereby suffers damage.
Art. 29. When the accused in a criminal prosecution is acquitted on the ground
that his guilt has not been proved beyond reasonable doubt, a civil action for
damages for the same act or omission may be instituted. Such action requires
only a preponderance of evidence. Upon motion of the defendant, the court
may require the plaintiff to file a bond to answer for damages in case the
complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable doubt,
the court shall so declare. In the absence of any declaration to that effect, it may
be inferred from the text of the decision whether or not the acquittal is due to
that ground.
Art. 30. When a separate civil action is brought to demand civil liability arising
from a criminal offense, and no criminal proceedings are instituted during the
pendency of the civil case, a preponderance of evidence shall likewise be
sufficient to prove the act complained of.
Art. 31. When the civil action is based on an obligation not arising from the act
or omission complained of as a felony, such civil action may proceed
independently of the criminal proceedings and regardless of the result of the
latter.
Art. 32. Any public officer or employee, or any private individual, who directly
or indirectly obstructs, defeats, violates or in any manner impedes or impairs
any of the following rights and liberties of another person shall be liable to the
latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public
use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes
not contrary to law;
(13) The right to take part in a peaceable assembly to petition the government
for redress of grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be informed
of the nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against one's self, or from
being forced to confess guilt, or from being induced by a promise of immunity
or reward to make such confession, except when the person confessing becomes
a State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless
the same is imposed or inflicted in accordance with a statute which has not been
judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act
or omission constitutes a criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil action for damages, and for
other relief. Such civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and mat be proved by a preponderance
of evidence.
The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act
or omission constitutes a violation of the Penal Code or other penal statute.
Art. 33. In cases of defamation, fraud, and physical injuries a civil action for
damages, entirely separate and distinct from the criminal action, may be brought
by the injured party. Such civil action shall proceed independently of the
criminal prosecution, and shall require only a preponderance of evidence.
Art. 34. When a member of a city or municipal police force refuses or fails to
render aid or protection to any person in case of danger to life or property, such
peace officer shall be primarily liable for damages, and the city or municipality
shall be subsidiarity responsible therefor. The civil action herein recognized
shall be independent of any criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
Art. 35. When a person, claiming to be injured by a criminal offense, charges
another with the same, for which no independent civil action is granted in this
Code or any special law, but the justice of the peace finds no reasonable grounds
to believe that a crime has been committed, or the prosecuting attorney refuses
or fails to institute criminal proceedings, the complaint may bring a civil action
for damages against the alleged offender. Such civil action may be supported
by a preponderance of evidence. Upon the defendant's motion, the court may
require the plaintiff to file a bond to indemnify the defendant in case the
complaint should be found to be malicious.
If during the pendency of the civil action, an information should be presented
by the prosecuting attorney, the civil action shall be suspended until the
termination of the criminal proceedings.
Art. 36. Pre-judicial questions which must be decided before any criminal
prosecution may be instituted or may proceed, shall be governed by rules of
court which the Supreme Court shall promulgate and which shall not be in
conflict with the provisions of this Code.
Art. 37. Juridical capacity, which is the fitness to be the subject of legal
relations, is inherent in every natural person and is lost only through death.
Capacity to act, which is the power to do acts with legal effect, is acquired and
may be lost. (n)
Art. 38. Minority, insanity or imbecility, the state of being a deaf-mute,
prodigality and civil interdiction are mere restrictions on capacity to act, and do
not exempt the incapacitated person from certain obligations, as when the latter
arise from his acts or from property relations, such as easements. (32a)
Art. 39. The following circumstances, among others, modify or limit capacity
to act: age, insanity, and imbecility, the state of being a deaf-mute, penalty,
prodigality, family relations, alienage, absence, insolvency and trusteeship. The
consequences of these circumstances are governed in this Code, other codes,
the Rules of Court, and in special laws. Capacity to act is not limited on account
of religious belief or political opinion.
A married woman, twenty-one years of age or over, is qualified for all acts of
civil life, except in cases specified by law. (n)
Art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be born later
with the conditions specified in the following article. (29a)
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time
it is completely delivered from the mother's womb. However, if the fetus had
an intra-uterine life of less than seven months, it is not deemed born if it dies
within twenty-four hours after its complete delivery from the maternal womb.
(30a)
Art. 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the deceased is determined
by law, by contract and by will. (32a)
Art. 43. If there is a doubt, as between two or more persons who are called to
succeed each other, as to which of them died first, whoever alleges the death of
one prior to the other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall be no transmission of
rights from one to the other. (33)
Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose,
created by law; their personality begins as soon as they have been constituted
according to law;
(3) Corporations, partnerships and associations for private interest or purpose
to which the law grants a juridical personality, separate and distinct from that
of each shareholder, partner or member. (35a)
Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are
governed by the laws creating or recognizing them.
Private corporations are regulated by laws of general application on the subject.
Partnerships and associations for private interest or purpose are governed by the
provisions of this Code concerning partnerships. (36 and 37a)
Art. 46. Juridical persons may acquire and possess property of all kinds, as well
as incur obligations and bring civil or criminal actions, in conformity with the
laws and regulations of their organization. (38a)
Art. 47. Upon the dissolution of corporations, institutions and other entities for
public interest or purpose mentioned in No. 2 of Article 44, their property and
other assets shall be disposed of in pursuance of law or the charter creating
them. If nothing has been specified on this point, the property and other assets
shall be applied to similar purposes for the benefit of the region, province, city
or municipality which during the existence of the institution derived the
principal benefits from the same. (39a)
THE FAMILY CODE OF THE PHILIPPINES
Art. 1. Marriage is a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of conjugal
and family life. It is the foundation of the family and an inviolable social
institution whose nature, consequences, and incidents are governed by law and
not subject to stipulation, except that marriage settlements may fix the property
relations during the marriage within the limits provided by this Code. (52a)
Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female;
and
(2) Consent freely given in the presence of the solemnizing officer. (53a)
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this
Title; and
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal declaration
that they take each other as husband and wife in the presence of not less than
two witnesses of legal age. (53a, 55a)
Art. 4. The absence of any of the essential or formal requisites shall render the
marriage void ab initio, except as stated in Article 35 (2).

A defect in any of the essential requisites shall not affect the validity of the
marriage but the party or parties responsible for the irregularity shall be civilly,
criminally and administratively liable. (n)
Art. 5. Any male or female of the age of eighteen years or upwards not under
any of the impediments mentioned in Articles 37 and 38, may contract marriage.
(54a)
Art. 6. No prescribed form or religious rite for the solemnization of the marriage
is required. It shall be necessary, however, for the contracting parties to appear
personally before the solemnizing officer and declare in the presence of not less
than two witnesses of legal age that they take each other as husband and wife.
This declaration shall be contained in the marriage certificate which shall be
signed by the contracting parties and their witnesses and attested by the
solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point of death is
unable to sign the marriage certificate, it shall be sufficient for one of the
witnesses to the marriage to write the name of said party, which fact shall be
attested by the solemnizing officer. (55a)
Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly
authorized by his church or religious sect and registered with the civil registrar
general, acting within the limits of the written authority granted by his church
or religious sect and provided that at least one of the contracting parties belongs
to the solemnizing officer's church or religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the
absence of the latter, during a military operation, likewise only in the cases
mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case provided in Article
10. (56a)
Article. 8. The marriage shall be solemnized publicly in the chambers of the
judge or in open court, in the church, chapel or temple, or in the office the
consul-general, consul or vice-consul, as the case may be, and not elsewhere,
except in cases of marriages contracted on the point of death or in remote places
in accordance with Article 29 of this Code, or where both of the parties request
the solemnizing officer in writing in which case the marriage may be
solemnized at a house or place designated by them in a sworn statement to that
effect. (57a)
Art. 9. A marriage license shall be issued by the local civil registrar of the city
or municipality where either contracting party habitually resides, except in
marriages where no license is required in accordance with Chapter 2 of this
Title (58a)
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a
consul-general, consul or vice-consul of the Republic of the Philippines. The
issuance of the marriage license and the duties of the local civil registrar and of
the solemnizing officer with regard to the celebration of marriage shall be
performed by said consular official. (75a)
Art. 11. Where a marriage license is required, each of the contracting parties
shall file separately a sworn application for such license with the proper local
civil registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having
charge, in case the contracting party has neither father nor mother and is under
the age of twenty-one years.
The applicants, their parents or guardians shall not be required to exhibit their
residence certificates in any formality in connection with the securing of the
marriage license. (59a)
Art. 12. The local civil registrar, upon receiving such application, shall require
the presentation of the original birth certificates or, in default thereof, the
baptismal certificates of the contracting parties or copies of such documents
duly attested by the persons having custody of the originals. These certificates
or certified copies of the documents by this Article need not be sworn to and
shall be exempt from the documentary stamp tax. The signature and official title
of the person issuing the certificate shall be sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his birth or baptismal
certificate or a certified copy of either because of the destruction or loss of the
original or if it is shown by an affidavit of such party or of any other person that
such birth or baptismal certificate has not yet been received though the same
has been required of the person having custody thereof at least fifteen days prior
to the date of the application, such party may furnish in lieu thereof his current
residence certificate or an instrument drawn up and sworn to before the local
civil registrar concerned or any public official authorized to administer oaths.
Such instrument shall contain the sworn declaration of two witnesses of lawful
age, setting forth the full name, residence and citizenship of such contracting
party and of his or her parents, if known, and the place and date of birth of such
party. The nearest of kin of the contracting parties shall be preferred as
witnesses, or, in their default, persons of good reputation in the province or the
locality.
The presentation of birth or baptismal certificate shall not be required if the
parents of the contracting parties appear personally before the local civil
registrar concerned and swear to the correctness of the lawful age of said parties,
as stated in the application, or when the local civil registrar shall, by merely
looking at the applicants upon their personally appearing before him, be
convinced that either or both of them have the required age. (60a)
Art. 13. In case either of the contracting parties has been previously married,
the applicant shall be required to furnish, instead of the birth or baptismal
certificate required in the last preceding article, the death certificate of the
deceased spouse or the judicial decree of the absolute divorce, or the judicial
decree of annulment or declaration of nullity of his or her previous marriage.
In case the death certificate cannot be secured, the party shall make an affidavit
setting forth this circumstance and his or her actual civil status and the name
and date of death of the deceased spouse. (61a)
Art. 14. In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of eighteen and
twenty-one, they shall, in addition to the requirements of the preceding articles,
exhibit to the local civil registrar, the consent to their marriage of their father,
mother, surviving parent or guardian, or persons having legal charge of them,
in the order mentioned. Such consent shall be manifested in writing by the
interested party, who personally appears before the proper local civil registrar,
or in the form of an affidavit made in the presence of two witnesses and attested
before any official authorized by law to administer oaths. The personal
manifestation shall be recorded in both applications for marriage license, and
the affidavit, if one is executed instead, shall be attached to said applications.
(61a)
Art. 15. Any contracting party between the age of twenty-one and twenty-five
shall be obliged to ask their parents or guardian for advice upon the intended
marriage. If they do not obtain such advice, or if it be unfavorable, the marriage
license shall not be issued till after three months following the completion of
the publication of the application therefor. A sworn statement by the contracting
parties to the effect that such advice has been sought, together with the written
advice given, if any, shall be attached to the application for marriage license.
Should the parents or guardian refuse to give any advice, this fact shall be stated
in the sworn statement. (62a)
Art. 16. In the cases where parental consent or parental advice is needed, the
party or parties concerned shall, in addition to the requirements of the preceding
articles, attach a certificate issued by a priest, imam or minister authorized to
solemnize marriage under Article 7 of this Code or a marriage counsellor duly
accredited by the proper government agency to the effect that the contracting
parties have undergone marriage counselling. Failure to attach said certificates
of marriage counselling shall suspend the issuance of the marriage license for a
period of three months from the completion of the publication of the
application. Issuance of the marriage license within the prohibited period shall
subject the issuing officer to administrative sanctions but shall not affect the
validity of the marriage.
Should only one of the contracting parties need parental consent or parental
advice, the other party must be present at the counselling referred to in the
preceding paragraph. (n)
Art. 17. The local civil registrar shall prepare a notice which shall contain the
full names and residences of the applicants for a marriage license and other data
given in the applications. The notice shall be posted for ten consecutive days on
a bulletin board outside the office of the local civil registrar located in a
conspicuous place within the building and accessible to the general public. This
notice shall request all persons having knowledge of any impediment to the
marriage to advise the local civil registrar thereof. The marriage license shall be
issued after the completion of the period of publication. (63a)
Art. 18. In case of any impediment known to the local civil registrar or brought
to his attention, he shall note down the particulars thereof and his findings
thereon in the application for marriage license, but shall nonetheless issue said
license after the completion of the period of publication, unless ordered
otherwise by a competent court at his own instance or that of any interest party.
No filing fee shall be charged for the petition nor a corresponding bond required
for the issuances of the order. (64a)
Art. 19. The local civil registrar shall require the payment of the fees prescribed
by law or regulations before the issuance of the marriage license. No other sum
shall be collected in the nature of a fee or tax of any kind for the issuance of
said license. It shall, however, be issued free of charge to indigent parties, that
is those who have no visible means of income or whose income is insufficient
for their subsistence a fact established by their affidavit, or by their oath before
the local civil registrar. (65a)
Art. 20. The license shall be valid in any part of the Philippines for a period of
one hundred twenty days from the date of issue, and shall be deemed
automatically cancelled at the expiration of the said period if the contracting
parties have not made use of it. The expiry date shall be stamped in bold
characters on the face of every license issued. (65a)
Art. 21. When either or both of the contracting parties are citizens of a foreign
country, it shall be necessary for them before a marriage license can be obtained,
to submit a certificate of legal capacity to contract marriage, issued by their
respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate
of legal capacity herein required, submit an affidavit stating the circumstances
showing such capacity to contract marriage. (66a)
Art. 22. The marriage certificate, in which the parties shall declare that they take
each other as husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except
in marriage provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the parental
consent in appropriate cases;
(6) That either or both of the contracting parties have complied with the legal
requirement regarding parental advice in appropriate cases; and
(7) That the parties have entered into marriage settlement, if any, attaching a
copy thereof. (67a)
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish
either of the contracting parties the original of the marriage certificate referred
to in Article 6 and to send the duplicate and triplicate copies of the certificate
not later than fifteen days after the marriage, to the local civil registrar of the
place where the marriage was solemnized. Proper receipts shall be issued by the
local civil registrar to the solemnizing officer transmitting copies of the
marriage certificate. The solemnizing officer shall retain in his file the
quadruplicate copy of the marriage certificate, the copy of the marriage
certificate, the original of the marriage license and, in proper cases, the affidavit
of the contracting party regarding the solemnization of the marriage in place
other than those mentioned in Article 8. (68a)
Art. 24. It shall be the duty of the local civil registrar to prepare the documents
required by this Title, and to administer oaths to all interested parties without
any charge in both cases. The documents and affidavits filed in connection with
applications for marriage licenses shall be exempt from documentary stamp tax.
(n)
Art. 25. The local civil registrar concerned shall enter all applications for
marriage licenses filed with him in a registry book strictly in the order in which
the same are received. He shall record in said book the names of the applicants,
the date on which the marriage license was issued, and such other data as may
be necessary. (n)
Art. 26. All marriages solemnized outside the Philippines, in accordance with
the laws in force in the country where they were solemnized, and valid there as
such, shall also be valid in this country, except those prohibited under Articles
35 (1), (4), (5) and (6), 3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (As amended by Executive Order
227)
CRIMINAL LAW
Criminal Law – A branch of municipal law which defines crimes, treats of their
nature and provides for their punishment.
Limitations on the power of Congress to enact penal laws (ON)
1. Must be general in application.
2. Must not partake of the nature of an ex post facto law.
3. Must not partake of the nature of a bill of attainder.
4. Must not impose cruel and unusual punishment or excessive fines.
Characteristics of Criminal Law:
1. General – the law is binding to all persons who reside in the
Philippines
2. Territorial – the law is binding to all crimes committed within the
National Territory of the Philippines
Exception to Territorial Application: Instances enumerated under Article 2.
3. Prospective – the law does not have any retroactive effect.
Exception to Prospective Application: when new statute is favorable to the
accused.
BASIC MAXIMS IN CRIMINAL LAW
Doctrine of Pro Reo
Whenever a penal law is to be construed or applied and the law admits of two
interpretations – one lenient to the offender and one strict to the offender – that
interpretation which is lenient or favorable to the offender will be adopted.
Nullum crimen, nulla poena sine lege
There is no crime when there is no law punishing the same. This is true to civil
law countries, but not to common law countries.
Because of this maxim, there is no common law crime in the Philippines. No
matter how wrongful, evil or bad the act is, if there is no law defining the act,
the same is not considered a crime.
Actus non facit reum, nisi mens sit rea
The act cannot be criminal where the mind is not criminal. This is true to a
felony characterized by dolo, but not a felony resulting from culpa. This maxim
is not an absolute one because it is not applied to culpable felonies, or those that
result from negligence.
Sources of Criminal Law
The Revised Penal Code
Special Penal Laws – Acts enacted of the Philippine Legislature punishing
offenses or omissions.
MALA IN SE AND MALA PROHIBITA
Violations of the Revised Penal Code are referred to as malum in se, which
literally means, that the act is inherently evil or bad or per se wrongful. On the
other hand, violations of special laws are generally referred to as malum
prohibitum.
Note, however, that not all violations of special laws are mala prohibita. While
intentional felonies are always mala in se, it does not follow that prohibited acts
done in violation of special laws are always mala prohibita. Even if the crime
is punished under a special law, if the act punished is one which is inherently
wrong, the same is malum in se, and, therefore, good faith and the lack of
criminal intent is a valid defense; unless it is the product of criminal negligence
or culpa.
Likewise when the special laws requires that the punished act be committed
knowingly and willfully, criminal intent is required to be proved before criminal
liability may arise.
When the act penalized is not inherently wrong, it is wrong only because a law
punishes the same.
Distinction between crimes punished under the Revised Penal Code and crimes
punished under special laws
1. as to moral trait of the offender
In crimes punished under the Revised Penal Code, the moral trait of the offender
is considered. This is why liability would only arise when there is dolo or culpa
in the commission of the punishable act.
In crimes punished under special laws, the moral trait of the offender is not
considered; it is enough that the prohibited act was voluntarily done.
2. as to use of good faith as defense
In crimes punished under the Revised Penal Code, good faith or lack of criminal
intent is a valid defense; unless the crime is the result of culpa
In crimes punished under special laws, good faith is not a defense
3. as to degree of accomplishment of the crime
In crimes punished under the Revised Penal Code, the degree of
accomplishment of the crime is taken into account in punishing the offender;
thus, there are attempted, frustrated, and consummated stages in the
commission of the crime.
In crimes punished under special laws, the act gives rise to a crime only when
it is consummated; there are no attempted or frustrated stages, unless the special
law expressly penalize the mere attempt or frustration of the crime.
4. as to mitigating and aggravating circumstances
In crimes punished under the Revised Penal Code, mitigating and aggravating
circumstances are taken into account in imposing the penalty since the moral
trait of the offender is considered.
In crimes punished under special laws, mitigating and aggravating
circumstances are not taken into account in imposing the penalty.
5. as to degree of participation
In crimes punished under the Revised Penal Code, when there is more than one
offender, the degree of participation of each in the commission of the crime is
taken into account in imposing the penalty; thus, offenders are classified as
principal, accomplice and accessory.
In crimes punished under special laws, the degree of participation of the
offenders is not considered. All who perpetrated the prohibited act are
penalized to the same extent. There is no principal or accomplice or accessory
to consider.
Test to determine if violation of special law is malum prohibitum or malum in
se
Analyze the violation: Is it wrong because there is a law prohibiting it or
punishing it as such? If you remove the law, will the act still be wrong?
If the wording of the law punishing the crime uses the word “willfully”, then
malice must be proven. Where malice is a factor, good faith is a defense.
In violation of special law, the act constituting the crime is a prohibited act.
Therefore culpa is not a basis of liability, unless the special law punishes an
omission.
When given a problem, take note if the crime is a violation of the Revised Penal
Code or a special law.
Art. 1. This Code shall take effect on January 1, 1932.
Art. 2. Except as provided in the treaties and laws of preferential application,
the provisions of this Code shall be enforced not only within the Philippine
Archipelago including its atmosphere, its interior waters and Maritime zone,
but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship;
2. Should forge or counterfeit any coin or currency note of the Philippine
Islands or obligations and securities issued by the Government of the Philippine
Islands;
3. Should be liable for acts connected with the introduction into these islands
of the obligations and securities mentioned in the preceding number;
4. While being public officers or employees, should commit an offense in the
exercise of their functions; or (Some of these crimes are bribery, fraud against
national treasury, malversation of public funds or property, and illegal use of
public funds; e.g., A judge who accepts a bribe while in Japan.)
5. Should commit any crimes against the national security and the law of
nations, defined in Title One of Book Two of this Code. (These crimes include
treason, espionage, piracy, mutiny, and violation of neutrality)
Rules as to crimes committed aboard foreign merchant vessels:
French Rule – Such crimes are not triable in the courts of that country, unless
their commission affects the peace and security of the territory or the safety of
the state is endangered.
English Rule – Such crimes are triable in that country, unless they merely affect
things within the vessel or they refer to the internal management thereof. (This
is applicable in the Philippines)
Two situations where the foreign country may not apply its criminal law even
if a crime was committed on board a vessel within its territorial waters and these
are:
(1) When the crime is committed in a war vessel of a foreign country,
because war vessels are part of the sovereignty of the country to whose naval
force they belong;
(2) When the foreign country in whose territorial waters the crime was
committed adopts the French Rule, which applies only to merchant vessels,
except when the crime committed affects the national security or public order
of such foreign country.
Requirements of “an offense committed while on a Philippine Ship or Airship”
Registered with the Philippine Bureau of Customs
Ship must be in the high seas or the airship must be in international airspace.
Under international law rule, a vessel which is not registered in accordance with
the laws of any country is considered a pirate vessel and piracy is a crime against
humanity in general, such that wherever the pirates may go, they can be
prosecuted.
Exception: The Revised Penal Code governs if the crime was committed within
the Philippine Embassy or within the embassy grounds in a foreign country.
This is because embassy grounds are considered an extension of sovereignty.
Paragraph 5 of Article 2, use the phrase “as defined in Title One of Book Two
of this Code.”
This is a very important part of the exception, because Title I of Book 2 (crimes
against national security) does not include rebellion.
Art 3. Acts and omissions punishable by law are felonies.
Acts – an overt or external act
Omission – failure to perform a duty required by law. Example of an omission:
failure to render assistance to anyone who is in danger of dying or is in an
uninhabited place or is wounded – abandonment.
Felonies – acts and omissions punishable by the Revised Penal Code
Crime – acts and omissions punishable by any law
What requisites must concur before a felony may be committed?
There must be (1) an act or omission; (2) punishable by the Revised Penal Code;
and (3) the act is performed or the omission incurred by means of dolo or culpa.
How felonies are committed:
 By means of deceit (dolo) – There is deceit when the act is
performed with deliberate intent.
Requisites:
 freedom
 intelligence
 intent
Examples: murder, treason, and robbery
Criminal intent is not necessary in these cases:
(1) When the crime is the product of culpa or negligence, reckless
imprudence, lack of foresight or lack of skill;
(2) When the crime is a prohibited act under a special law or what is
called malum prohibitum.
In criminal law, intent is categorized into two:
(1) General criminal intent; and
(2) Specific criminal intent.
General criminal intent is presumed from the mere doing of a wrong act. This
does not require proof. The burden is upon the wrong doer to prove that he
acted without such criminal intent.
Specific criminal intent is not presumed because it is an ingredient or element
of a crime, like intent to kill in the crimes of attempted or frustrated
homicide/parricide/murder. The prosecution has the burden of proving the
same.
Distinction between intent and discernment
Intent is the determination to do a certain thing, an aim or purpose of the mind.
It is the design to resolve or determination by which a person acts.
On the other hand, discernment is the mental capacity to tell right from wrong.
It relates to the moral significance that a person ascribes to his act and relates
to the intelligence as an element of dolo, distinct from intent.
Distinction between intent and motive
Intent is demonstrated by the use of a particular means to bring about a desired
result – it is not a state of mind or a reason for committing a crime.
On the other hand, motive implies motion. It is the moving power which impels
one to do an act. When there is motive in the commission of a crime, it always
comes before the intent. But a crime may be committed without motive.
If the crime is intentional, it cannot be committed without intent. Intent is
manifested by the instrument used by the offender. The specific criminal intent
becomes material if the crime is to be distinguished from the attempted or
frustrated stage.
 By means of fault (culpa) – There is fault when the wrongful act
results from imprudence, negligence, lack of foresight, or lack of
skill.
Imprudence – deficiency of action; e.g. A was driving a truck along a road. He
hit B because it was raining – reckless imprudence.
Negligence – deficiency of perception; failure to foresee impending danger,
usually involves lack of foresight
Requisites:
 Freedom
 Intelligence
 Imprudence, negligence, lack of skill or foresight
 Lack of intent
The concept of criminal negligence is the inexcusable lack of precaution on the
part of the person performing or failing to perform an act. If the danger
impending from that situation is clearly manifest, you have a case of reckless
imprudence. But if the danger that would result from such imprudence is not
clear, not manifest nor immediate you have only a case of simple negligence.
 Mistake of fact – is a misapprehension of fact on the part of the
person who caused injury to another. He is not criminally liable.
Requisites:
 that the act done would have been lawful had the facts been as the
accused believed them to be;
 intention of the accused is lawful;
 mistake must be without fault of carelessness.
Example: United States v. Ah Chong.
Ah Chong being afraid of bad elements, locked himself in his room by placing
a chair against the door. After having gone to bed, he was awakened by
somebody who was trying to open the door. He asked the identity of the person,
but he did not receive a response. Fearing that this intruder was a robber, he
leaped out of bed and said that he will kill the intruder should he attempt to
enter. At that moment, the chair struck him. Believing that he was attacked, he
seized a knife and fatally wounded the intruder.
Mistake of fact would be relevant only when the felony would have been
intentional or through dolo, but not when the felony is a result of culpa. When
the felony is a product of culpa, do not discuss mistake of fact.
Art. 4. Criminal liability shall be incurred:
1. By any person committing a felony, although the wrongful act done
be different from that which he intended.
Article 4, paragraph 1 presupposes that the act done is the proximate cause of
the resulting felony. It must be the direct, natural, and logical consequence of
the felonious act.
Causes which produce a different result:
Mistake in identity of the victim – injuring one person who is mistaken for
another (this is a complex crime under Art. 48) e.g., A intended to shoot B, but
he instead shot C because he (A) mistook C for B.
In error in personae, the intended victim was not at the scene of the crime.
It was the actual victim upon whom the blow was directed, but he was not really
the intended victim.
How does error in personae affect criminal liability of the offender?
Error in personae is mitigating if the crime committed is different from that
which was intended. If the crime committed is the same as that which was
intended, error in personae does not affect the criminal liability of the offender.
In mistake of identity, if the crime committed was the same as the crime
intended, but on a different victim, error in persona does not affect the criminal
liability of the offender. But if the crime committed was different from the
crime intended, Article 49 will apply and the penalty for the lesser crime will
be applied. In a way, mistake in identity is a mitigating circumstance where
Article 49 applies. Where the crime intended is more serious than the crime
committed, the error in persona is not a mitigating circumstance
 Mistake in blow – hitting somebody other than the target due to lack
of skill or fortuitous instances (this is a complex crime under Art.
48) e.g., B and C were walking together. A wanted to shoot B, but
he instead injured C.
In aberratio ictus, a person directed the blow at an intended victim, but
because of poor aim, that blow landed on somebody else. In aberratio ictus, the
intended victim as well as the actual victim are both at the scene of the crime.
Aberratio ictus, generally gives rise to a complex crime. This being so, the
penalty for the more serious crime is imposed in the maximum period.
Injurious result is greater than that intended – causing injury graver than
intended or expected (this is a mitigating circumstance due to lack of intent to
commit so grave a wrong under Art. 13) e.g., A wanted to injure B. However,
B died.
Praeter intentionem is mitigating, particularly covered by paragraph 3 of
Article 13. In order however, that the situation may qualify as praeter
intentionem, there must be a notable disparity between the means employed and
the resulting felony
In all these instances the offender can still be held criminally liable, since he is
motivated by criminal intent.
Requisites:
 the felony was intentionally committed
 the felony is the proximate cause of the wrong done
Doctrine of Proximate Cause – such adequate and efficient cause as, in the
natural order of events, and under the particular circumstances surrounding the
case, which would necessarily produce the event.
Requisites:
 the direct, natural, and logical cause
 produces the injury or damage
 unbroken by any sufficient intervening cause
 without which the result would not have occurred
Proximate Cause is negated by:
Active force, distinct act, or fact absolutely foreign from the felonious act of the
accused, which serves as a sufficient intervening cause.
Resulting injury or damage is due to the intentional act of the victim.
Proximate cause does not require that the offender needs to actually touch
the body of the offended party. It is enough that the offender generated in the
mind of the offended party the belief that made him risk himself.
Requisite for Presumption blow was cause of the death – Where there has been
an injury inflicted sufficient to produce death followed by the demise of the
person, the presumption arises that the injury was the cause of the death.
Provided:
 victim was in normal health
 death ensued within a reasonable time
The one who caused the proximate cause is the one liable. The one who caused
the immediate cause is also liable, but merely contributory or sometimes totally
not liable.
2. By any person performing an act which would be an offense against persons
or property, were it not for the inherent impossibility of its accomplishment or
on account of the employment of inadequate or ineffectual means.
Requisites: (IMPOSSIBLE CRIME)
 Act would have been an offense against persons or property
 Act is not an actual violation of another provision of the Code or of
a special penal law
 There was criminal intent
 Accomplishment was inherently impossible; or inadequate or
ineffectual means were employed.
Notes:
Offender must believe that he can consummate the intended crime, a man
stabbing another who he knew was already dead cannot be liable for an
impossible crime.
The law intends to punish the criminal intent.
There is no attempted or frustrated impossible crime.
Felonies against persons: parricide, murder, homicide, infanticide, physical
injuries, etc.
Felonies against property: robbery, theft, usurpation, swindling, etc.
Inherent impossibility: A thought that B was just sleeping. B was already dead.
A shot B. A is liable. If A knew that B is dead and he still shot him, then A is
not liable.
When we say inherent impossibility, this means that under any and all
circumstances, the crime could not have materialized. If the crime could have
materialized under a different set of facts, employing the same mean or the same
act, it is not an impossible crime; it would be an attempted felony.
Employment of inadequate means: A used poison to kill B. However, B
survived because A used small quantities of poison – frustrated murder.
Ineffectual means: A aimed his gun at B. When he fired the gun, no bullet came
out because the gun was empty. A is liable.
 Whenever you are confronted with a problem where the facts suggest that
an impossible crime was committed, be careful about the question asked. If the
question asked is: “Is an impossible crime committed?”, then you judge that
question on the basis of the facts. If really the facts constitute an impossible
crime, then you suggest than an impossible crime is committed, then you state
the reason for the inherent impossibility.
If the question asked is “Is he liable for an impossible crime?” this is a
catching question. Even though the facts constitute an impossible crime, if the
act done by the offender constitutes some other crimes under the Revised Penal
Code, he will not be liable for an impossible crime. He will be prosecuted for
the crime constituted so far by the act done by him.
This idea of an impossible crime is a one of last resort, just to teach the
offender a lesson because of his criminal perversity. If he could be taught of
the same lesson by charging him with some other crime constituted by his act,
then that will be the proper way. If you want to play safe, you state there that
although an impossible crime is constituted, yet it is a principle of criminal law
that he will only be penalized for an impossible crime if he cannot be punished
under some other provision of the Revised Penal Code.
Art 5. Whenever a court has knowledge of any act which it may deem proper
to repress and which is not punishable by law, it shall render the proper decision
and shall report to the Chief Executive, through the Department of Justice, the
reasons which induce the court to believe that said act should be made subject
of legislation.
In the same way the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the injury caused by
the offense.
When a person is charged in court, and the court finds that there is no
law applicable, the court will acquit the accused and the judge will give his
opinion that the said act should be punished.
Paragraph 2 does not apply to crimes punishable by special law, including
profiteering, and illegal possession of firearms or drugs. There can be no
executive clemency for these crimes.
Art. 6. Consummated felonies, as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all
the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the
will of the perpetrator.
There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his
own spontaneous desistance.
Development of a crime
Internal acts – intent and plans; usually not punishable
External acts
Preparatory Acts – acts tending toward the crime
Acts of Execution – acts directly connected the crime
Stages of a Crime does not apply in:
Offenses punishable by Special Penal Laws, unless the otherwise is provided
for.
Formal crimes (e.g., slander, adultery, etc.)
Impossible Crimes
Crimes consummated by mere attempt. Examples: attempt to flee to an enemy
country, treason, corruption of minors.
Felonies by omission
Crimes committed by mere agreement. Examples: betting in sports (endings
in basketball), corruption of public officers.
Desistance
Desistance on the part of the offender negates criminal liability in the
attempted stage. Desistance is true only in the attempted stage of the felony. If
under the definition of the felony, the act done is already in the frustrated stage,
no amount of desistance will negate criminal liability.
The spontaneous desistance of the offender negates only the attempted
stage but not necessarily all criminal liability. Even though there was desistance
on the part of the offender, if the desistance was made when acts done by him
already resulted to a felony, that offender will still be criminally liable for the
felony brought about his act
In deciding whether a felony is attempted or frustrated or consummated,
there are three criteria involved:
(1) The manner of committing the crime;
(2) The elements of the crime; and
(3) The nature of the crime itself.
Applications:
A put poison in B’s food. B threw away his food. A is liable – attempted
murder.[1]
A stole B’s car, but he returned it. A is liable – (consummated) theft.
A aimed his gun at B. C held A’s hand and prevented him from shooting B –
attempted murder.
A inflicted a mortal wound on B. B managed to survive – frustrated murder.
A intended to kill B by shooting him. A missed – attempted murder.
A doused B’s house with kerosene. But before he could light the match, he was
caught – attempted arson.
A cause a blaze, but did not burn the house of B – frustrated arson.
B’s house was set on fire by A – (consummated) arson.
A tried to rape B. B managed to escape. There was no penetration – attempted
rape.
A got hold of B’s painting. A was caught before he could leave B’s house –
frustrated robbery.
The attempted stage is said to be within the subjective phase of execution of a
felony. On the subjective phase, it is that point in time when the offender begins
the commission of an overt act until that point where he loses control of the
commission of the crime already. If he has reached that point where he can no
longer control the ensuing consequence, the crime has already passed the
subjective phase and, therefore, it is no longer attempted. The moment the
execution of the crime has already gone to that point where the felony should
follow as a consequence, it is either already frustrated or consummated. If the
felony does not follow as a consequence, it is already frustrated. If the felony
follows as a consequence, it is consummated.
Although the offender may not have done the act to bring about the felony
as a consequence, if he could have continued committing those acts but he
himself did not proceed because he believed that he had done enough to
consummate the crime, Supreme Court said the subjective phase has passed
Art. 7. Light felonies are punishable only when they have been consummated
with the exception of those committed against persons or property.
Examples of light felonies: slight physical injuries; theft; alteration of boundary
marks; malicious mischief; and intriguing against honor.
In commission of crimes against properties and persons, every stage of
execution is punishable but only the principals and accomplices are liable for
light felonies, accessories are not.
Art. 8. Conspiracy and proposal to commit felony are punishable only in the
cases in which the law specially provides a penalty therefore.
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
There is proposal when the person who has decided to commit a felony proposes
its execution to some other person or persons.
Conspiracy is punishable in the following cases: treason, rebellion or
insurrection, sedition, and monopolies and combinations in restraint of trade.
Conspiracy to commit a crime is not to be confused with conspiracy as a means
of committing a crime. In both cases there is an agreement but mere conspiracy
to commit a crime is not punished EXCEPT in treason, rebellion, or sedition.
Even then, if the treason is actually committed, the conspiracy will be
considered as a means of committing it and the accused will all be charged for
treason and not for conspiracy to commit treason.
Art. 9. Grave felonies are those to which the law attaches the capital
punishment or penalties which in any of there are afflictive, in accordance with
Article 25 of this Code.
Less grave felonies are those which the law punishes with penalties which in
their maximum period are correctional, in accordance with the above-
mentioned article.
Light felonies are those infractions of law for the commission of which he
penalty of arresto mayor or a fine not exceeding 200 pesos, or both is provided.
Capital punishment – death penalty.
Penalties (imprisonment): Grave – six years and one day to reclusion perpetua
(life); Less grave – one month and one day to six years; Light – arresto menor
(one day to 30 days).
CLASSIFICATION OF FELONIES
This question was asked in the bar examination: How do you classify felonies
or how are felonies classified?
What the examiner had in mind was Articles 3, 6 and 9. Do not write the
classification of felonies under Book 2 of the Revised Penal Code. That was
not what the examiner had in mind because the question does not require the
candidate to classify but also to define. Therefore, the examiner was after the
classifications under Articles 3, 6 and 9.
Felonies are classified as follows:
(1) According to the manner of their commission
Under Article 3, they are classified as, intentional felonies or those committed
with deliberate intent; and culpable felonies or those resulting from negligence,
reckless imprudence, lack of foresight or lack of skill.
(2) According to the stages of their execution
Under Article 6., felonies are classified as attempted felony when the offender
commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance; frustrated
felony when the offender commences the commission of a felony as a
consequence but which would produce the felony as a consequence but which
nevertheless do not produce the felony by reason of causes independent of the
perpetrator; and, consummated felony when all the elements necessary for its
execution are present.
(3) According to their gravity
Under Article 9, felonies are classified as grave felonies or those to which
attaches the capital punishment or penalties which in any of their periods are
afflictive; less grave felonies or those to which the law punishes with penalties
which in their maximum period was correctional; and light felonies or those
infractions of law for the commission of which the penalty is arresto menor.
Why is it necessary to determine whether the crime is grave, less grave or light?
To determine whether these felonies can be complexed or not, and to determine
the prescription of the crime and the prescription of the penalty. In other words,
these are felonies classified according to their gravity, stages and the penalty
attached to them. Take note that when the Revised Penal Code speaks of grave
and less grave felonies, the definition makes a reference specifically to Article
25 of the Revised Penal Code. Do not omit the phrase “In accordance with
Article 25” because there is also a classification of penalties under Article 26
that was not applied.
If the penalty is fine and exactly P200.00, it is only considered a light felony
under Article 9.
If the fine is imposed as an alternative penalty or as a single penalty, the fine of
P200.00 is considered a correctional penalty under Article 26.
If the penalty is exactly P200.00, apply Article 26. It is considered as
correctional penalty and it prescribes in 10 years. If the offender is apprehended
at any time within ten years, he can be made to suffer the fine.
This classification of felony according to gravity is important with respect to
the question of prescription of crimes.
In the case of light felonies, crimes prescribe in two months. If the crime is
correctional, it prescribes in ten years, except arresto mayor, which prescribes
in five years.
Art. 10. Offenses which are or in the future may be punishable under special
laws are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide the
contrary.
For Special Laws: Penalties should be imprisonment, and not reclusion
perpetua, etc.
Offenses that are attempted or frustrated are not punishable, unless otherwise
stated.
Plea of guilty is not mitigating for offenses punishable by special laws.
No minimum, medium, and maximum periods for penalties.
No penalty for an accessory or accomplice, unless otherwise stated.
Provisions of RPC applicable to special laws:
Art. 16 Participation of Accomplices
Art. 22 Retroactivity of Penal laws if favorable to the accused
Art. 45 Confiscation of instruments used in the crime
SUPPLETORY APPLICATION OF THE REVISED PENAL CODE
In Article 10, there is a reservation “provision of the Revised Penal Code may
be applied suppletorily to special laws”. You will only apply the provisions of
the Revised Penal Code as a supplement to the special law, or simply correlate
the violated special law, if needed to avoid an injustice. If no justice would
result, do not give suppletorily application of the Revised Penal Code to that of
special law.
For example, a special law punishes a certain act as a crime. The special law is
silent as to the civil liability of one who violates the same. Here is a person who
violated the special law and he was prosecuted. His violation caused damage
or injury to a private party. May the court pronounce that he is civilly liable to
the offended party, considering that the special law is silent on this point? Yes,
because Article 100 of the Revised Penal Code may be given suppletory
application to prevent an injustice from being done to the offended party.
Article 100 states that every person criminally liable for a felony is also civilly
liable. That article shall be applied suppletory to avoid an injustice that would
be caused to the private offended party, if he would not be indemnified for the
damages or injuries sustained by him.
In People v. Rodriguez, it was held that the use of arms is an element of
rebellion, so a rebel cannot be further prosecuted for possession of firearms. A
violation of a special law can never absorb a crime punishable under the Revised
Penal Code, because violations of the Revised Penal Code are more serious than
a violation of a special law. But a crime in the Revised Penal Code can absorb
a crime punishable by a special law if it is a necessary ingredient of the crime
in the Revised Penal Code
In the crime of sedition, the use of firearms is not an ingredient of the crime.
Hence, two prosecutions can be had: (1) sedition; and (2) illegal possession of
firearms.
But do not think that when a crime is punished outside of the Revised Penal
Code, it is already a special law. For example, the crime of cattle-rustling is not
a mala prohibitum but a modification of the crime theft of large cattle. So
Presidential Decree No. 533, punishing cattle-rustling, is not a special law. It
can absorb the crime of murder. If in the course of cattle rustling, murder was
committed, the offender cannot be prosecuted for murder. Murder would be a
qualifying circumstance in the crime of qualified cattle rustling. This was the
ruling in People v. Martinada.
The amendments of Presidential Decree No. 6425 (The Dangerous Drugs Act
of 1972) by Republic Act No. 7659, which adopted the scale of penalties in the
Revised Penal Code, means that mitigating and aggravating circumstances can
now be considered in imposing penalties. Presidential Decree No. 6425 does
not expressly prohibit the suppletory application of the Revised Penal Code.
The stages of the commission of felonies will also apply since suppletory
application is now allowed.
Circumstances affecting criminal liability
There are five circumstances affecting criminal liability:
(1) Justifying circumstances;
(2) Exempting circumstances;
(3) Mitigating circumstances;
(4) Aggravating circumstances; and
(5) Alternative circumstances.
There are two others which are found elsewhere in the provisions of the Revised
Penal Code:
(1) Absolutory cause; and
(2) Extenuating circumstances.
In justifying and exempting circumstances, there is no criminal liability. When
an accused invokes them, he in effect admits the commission of a crime but
tries to avoid the liability thereof. The burden is upon him to establish beyond
reasonable doubt the required conditions to justify or exempt his acts from
criminal liability. What is shifted is only the burden of evidence, not the burden
of proof.
Justifying circumstances contemplate intentional acts and, hence, are
incompatible with dolo. Exempting circumstances may be invoked in culpable
felonies.
Absolutory cause
The effect of this is to absolve the offender from criminal liability, although not
from civil liability. It has the same effect as an exempting circumstance, but
you do not call it as such in order not to confuse it with the circumstances under
Article 12.
Article 20 provides that the penalties prescribed for accessories shall not be
imposed upon those who are such with respect to their spouses, ascendants,
descendants, legitimate, natural and adopted brothers and sisters, or relatives by
affinity within the same degrees with the exception of accessories who profited
themselves or assisting the offender to profit by the effects of the crime.
Then, Article 89 provides how criminal liability is extinguished:
Death of the convict as to the personal penalties, and as to pecuniary penalties,
liability therefor is extinguished if death occurs before final judgment;
Service of the sentence;
Amnesty;
Absolute pardon;
Prescription of the crime;
Prescription of the penalty; and
Marriage of the offended woman as provided in Article 344.
Under Article 247, a legally married person who kills or inflicts physical
injuries upon his or her spouse whom he surprised having sexual intercourse
with his or her paramour or mistress in not criminally liable.
Under Article 219, discovering secrets through seizure of correspondence of the
ward by their guardian is not penalized.
Under Article 332, in the case of theft, swindling and malicious mischief, there
is no criminal liability but only civil liability, when the offender and the
offended party are related as spouse, ascendant, descendant, brother and sister-
in-law living together or where in case the widowed spouse and the property
involved is that of the deceased spouse, before such property had passed on to
the possession of third parties.
Under Article 344, in cases of seduction, abduction, acts of lasciviousness, and
rape, the marriage of the offended party shall extinguish the criminal action.
Absolutory cause has the effect of an exempting circumstance and they are
predicated on lack of voluntariness like instigation. Instigation is associated
with criminal intent. Do not consider culpa in connection with instigation. If the
crime is culpable, do not talk of instigation. In instigation, the crime is
committed with dolo. It is confused with entrapment.
Entrapment is not an absolutory cause. Entrapment does not exempt the
offender or mitigate his criminal liability. But instigation absolves the offender
from criminal liability because in instigation, the offender simply acts as a tool
of the law enforcers and, therefore, he is acting without criminal intent because
without the instigation, he would not have done the criminal act which he did
upon instigation of the law enforcers.
Difference between instigation and entrapment
In instigation, the criminal plan or design exists in the mind of the law enforcer
with whom the person instigated cooperated so it is said that the person
instigated is acting only as a mere instrument or tool of the law enforcer in the
performance of his duties.
On the other hand, in entrapment, a criminal design is already in the mind of
the person entrapped. It did not emanate from the mind of the law enforcer
entrapping him. Entrapment involves only ways and means which are laid down
or resorted to facilitate the apprehension of the culprit.
The element which makes instigation an absolutory cause is the lack of criminal
intent as an element of voluntariness.
If the instigator is a law enforcer, the person instigated cannot be criminally
liable, because it is the law enforcer who planted that criminal mind in him to
commit the crime, without which he would not have been a criminal. If the
instigator is not a law enforcer, both will be criminally liable, you cannot have
a case of instigation. In instigation, the private citizen only cooperates with the
law enforcer to a point when the private citizen upon instigation of the law
enforcer incriminates himself. It would be contrary to public policy to
prosecute a citizen who only cooperated with the law enforcer. The private
citizen believes that he is a law enforcer and that is why when the law enforcer
tells him, he believes that it is a civil duty to cooperate.
If the person instigated does not know that the person is instigating him is a law
enforcer or he knows him to be not a law enforcer, this is not a case of
instigation. This is a case of inducement, both will be criminally liable.
In entrapment, the person entrapped should not know that the person trying to
entrap him was a law enforcer. The idea is incompatible with each other
because in entrapment, the person entrapped is actually committing a crime.
The officer who entrapped him only lays down ways and means to have
evidence of the commission of the crime, but even without those ways and
means, the person entrapped is actually engaged in a violation of the law.
Instigation absolves the person instigated from criminal liability. This is based
on the rule that a person cannot be a criminal if his mind is not criminal. On
the other hand, entrapment is not an absolutory cause. It is not even mitigating.
In case of somnambulism or one who acts while sleeping, the person involved
is definitely acting without freedom and without sufficient intelligence, because
he is asleep. He is moving like a robot, unaware of what he is doing. So the
element of voluntariness which is necessary in dolo and culpa is not present.
Somnambulism is an absolutory cause. If element of voluntariness is absent,
there is no criminal liability, although there is civil liability, and if the
circumstance is not among those enumerated in Article 12, refer to the
circumstance as an absolutory cause.
Mistake of fact is an absolutory cause. The offender is acting without criminal
intent. So in mistake of fact, it is necessary that had the facts been true as the
accused believed them to be, this act is justified. If not, there is criminal
liability, because there is no mistake of fact anymore. The offender must
believe he is performing a lawful act.
Extenuating circumstances
The effect of this is to mitigate the criminal liability of the offender. In other
words, this has the same effect as mitigating circumstances, only you do not call
it mitigating because this is not found in Article 13.
Distinctions between justifying circumstances and exempting circumstances
In justifying circumstances –
(1) The circumstance affects the act, not the actor;
(2) The act complained of is considered to have been done within the
bounds of law; hence, it is legitimate and lawful in the eyes of the law;
(3) Since the act is considered lawful, there is no crime, and because
there is no crime, there is no criminal;
(4) Since there is no crime or criminal, there is no criminal liability
as well as civil liability.
In exempting circumstances –
(1) The circumstances affect the actor, not the act;
(2) The act complained of is actually wrongful, but the actor acted
without voluntariness. He is a mere tool or instrument of the crime;
(3) Since the act complained of is actually wrongful, there is a crime.
But because the actor acted without voluntariness, there is absence of dolo or
culpa. There is no criminal;
(4) Since there is a crime committed but there is no criminal, there is
civil liability for the wrong done. But there is no criminal liability. However,
in paragraphs 4 and 7 of Article 12, there is neither criminal nor civil liability.
When you apply for justifying or exempting circumstances, it is confession and
avoidance and burden of proof shifts to the accused and he can no longer rely
on weakness of prosecution’s evidence.
Art. 11: Justifying Circumstances – those wherein the acts of the actor are in
accordance with law, hence, he is justified. There is no criminal and civil
liability because there is no crime.
Self-defense
Reason for lawfulness of self-defense: because it would be impossible for the
State to protect all its citizens. Also a person cannot just give up his rights
without any resistance being offered.
Rights included in self-defense:
1. Defense of person
2. Defense of rights protected by law
Defense of property:
a. The owner or lawful possessor of a thing has a right to exclude any person
from the enjoyment or disposal thereof. For this purpose, he may use such force
as may be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property. (Art. 429, New Civil
Code)
b. defense of chastity
Elements:
1. Unlawful Aggression– is a physical act manifesting danger to life or limb;
it is either actual or imminent.
Actual/real aggression – Real aggression presupposes an act positively strong,
showing the wrongful intent of the aggressor, which is not merely threatening
or intimidating attitude, but a material attack. There must be real danger to life
a personal safety.
Imminent unlawful aggression – it is an attack that is impending or on the
point of happening. It must not consist in a mere threatening attitude, nor must
it be merely imaginary. The intimidating attitude must be offensive and
positively strong.
Where there is an agreement to fight, there is no unlawful aggression. Each of
the protagonists is at once assailant and assaulted, and neither can invoke the
right of self-defense, because aggression which is an incident in the fight is
bound to arise from one or the other of the combatants. Exception: Where the
attack is made in violation of the conditions agreed upon, there may be unlawful
aggression.
Unlawful aggression in self-defense, to be justifying, must exist at the time the
defense is made. It may no longer exist if the aggressor runs away after the
attack or he has manifested a refusal to continue fighting. If the person attacked
allowed some time to elapse after he suffered the injury before hitting back, his
act of hitting back would not constitute self-defense, but revenge.
A light push on the head with the hand is not unlawful aggression, but a slap on
the face is, because his dignity is in danger.
A police officer exceeding his authority may become an unlawful aggressor.
The nature, character, location, and extent of the wound may belie claim of self-
defense.
2. Reasonable necessity of the means employed to prevent or repel it;
a. Requisites:
Means were used to prevent or repel
Means must be necessary and there is no other way to prevent or repel it
Means must be reasonable – depending on the circumstances, but generally
proportionate to the force of the aggressor.
The rule here is to stand your ground when in the right which may invoked
when the defender is unlawfully assaulted and the aggressor is armed with a
weapon.
The rule is more liberal when the accused is a peace officer who, unlike a private
person, cannot run away.
The reasonable necessity of the means employed to put up the defense.
The gauge of reasonable necessity is the instinct of self-preservation, i.e. a
person did not use his rational mind to pick a means of defense but acted out of
self-preservation, using the nearest or only means available to defend himself,
even if such means be disproportionately advantageous as compared with the
means of violence employed by the aggressor.
Reasonableness of the means depends on the nature and the quality of the
weapon used, physical condition, character, size and other circumstances.
3. Lack of sufficient provocation on the part of the person defending himself.
When no provocation at all was given to the aggressor by the person defending
himself.
When even if provocation was given by the person defending himself, such was
not sufficient to cause violent aggression on the part of the attacker, i.e. the
amount of provocation was not sufficient to stir the aggressor into the acts
which led the accused to defend himself.
When even if the provocation were sufficient, it was not given by the person
defending himself.
When even if provocation was given by the person defending himself, the attack
was not proximate or immediate to the act of provocation.
Sufficient means proportionate to the damage caused by the act, and adequate
to stir one to its commission.
Kinds of Self-Defense
Self-defense of chastity – to be entitled to complete self-defense of chastity,
there must be an attempt to rape, mere imminence thereof will suffice.
Defense of property – an attack on the property must be coupled with an attack
on the person of the owner, or of one entrusted with the care of such property.
Self-defense in libel – physical assault may be justified when the libel is aimed
at a person’s good name, and while the libel is in progress, one libel deserves
another.
*Burden of proof – on the accused (sufficient, clear and convincing evidence;
must rely on the strength of his own evidence and not on the weakness of the
prosecution).
Defense of Relative
A. Elements:
Unlawful aggression
Reasonable necessity of the means employed to prevent or repel the attack;
In case provocation was given by the person attacked, that the person making
the defense had no part in such provocation.
B. Relatives entitled to the defense:
Spouse
Ascendants
Descendants
Legitimate, natural or adopted brothers or sisters
Relatives by affinity in the same degree
Relatives by consanguinity within the 4th civil degree.
The third element need not take place. The relative defended may even be the
original aggressor. All that is required to justify the act of the relative defending
is that he takes no part in such provocation.
General opinion is to the effect that all relatives mentioned must be legitimate,
except in cases of brothers and sisters who, by relatives by nature, may be
illegitimate.
The unlawful aggression may depend on the honest belief of the person making
the defense.
Defense of Stranger
A. Elements
Unlawful aggression
Reasonable necessity of the means employed to prevent or repel the attack;
The person defending be not induced by revenge, resentment or other evil
motive.
A relative not included in defense of relative is included in defense of stranger.
Be not induced by evil motive means that even an enemy of the aggressor who
comes to the defense of a stranger may invoke this justifying circumstances so
long as he is not induced by a motive that is evil.
State of Necessity
Art. 11, Par. a provides:
Any person who, in order to avoid an evil or injury, does an act which causes
damage to another, provided that the following requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
and
Third. That there be no other practical and less harmful means of
preventing it.
A state of necessity exists when there is a clash between unequal rights, the
lesser right giving way to the greater right. Aside from the 3 requisites stated
in the law, it should also be added that the necessity must not be due to the
negligence or violation of any law by the actor.
The person for whose benefit the harm has been prevented shall be civilly liable
in proportion to the benefit which may have been received. This is the only
justifying circumstance which provides for the payment of civil indemnity.
Under the other justifying circumstances, no civil liability attaches. The courts
shall determine, in their sound discretion, the proportionate amount for which
law one is liable
Fulfillment of Duty or Lawful Exercise of a Right or Office
Elements:
That the accused acted in the performance of a duty, or in the lawful exercise
of a right or office;
That the injury caused or offense committed be the necessary consequence of
the due performance of the duty, or the lawful exercise of such right or office.
A police officer is justified in shooting and killing a criminal who refuses to
stop when ordered to do so, and after such officer fired warning shots in the air.
Shooting an offender who refused to surrender is justified, but not a thief who
refused to be arrested.
The accused must prove that he was duly appointed to the position he claimed
he was discharging at the time of the commission of the offense. It must be
made to appear not only that the injury caused or the offense committed was
done in the fulfillment of a duty, or in the lawful exercise of a right or office,
but that the offense committed was a necessary consequence of such fulfillment
of duty, or lawful exercise of a right or office.
A mere security guard has no authority or duty to fire at a thief, resulting in the
latter’s death.
Obedience to a Superior Order
Elements:
There is an order;
The order is for a legal purpose;
The means used to carry out said order is lawful.
The subordinate who is made to comply with the order is the party which may
avail of this circumstance. The officer giving the order may not invoke this.
The subordinate’s good faith is material here. If he obeyed an order in good
faith, not being aware of its illegality, he is not liable. However, the order must
not be patently illegal. If the order is patently illegal this circumstance cannot
be validly invoked.
The reason for this justifying circumstance is the subordinate’s mistake of fact
in good faith.
Even if the order be patently illegal, the subordinate may yet be able to invoke
the exempting circumstances of having acted under the compulsion of an
irresistible force, or under the impulse of an uncontrollable fear.
EXEMPTING CIRCUMSTANCES
Exempting circumstances (non-imputability) are those ground for exemption
from punishment because there is wanting in the agent of the crime of any of
the conditions which make the act voluntary, or negligent.
Basis: The exemption from punishment is based on the complete absence of
intelligence, freedom of action, or intent, or on the absence of negligence on the
part of the accused.
A person who acts WITHOUT MALICE (without intelligence, freedom of
action or intent) or WITHOUT NEGLIGENCE (without intelligence, freedom
of action or fault) is NOT CRIMINALLY LIABLE or is EXEMPT FROM
PUNISHMENT.
There is a crime committed but no criminal liability arises from it because of
the complete absence of any of the conditions which constitute free will or
voluntariness of the act.
Burden of proof: Any of the circumstances is a matter of defense and must be
proved by the defendant to the satisfaction of the court.
Art. 12. CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL
LIABILITY. The following are exempt from criminal liability:
1. An imbecile or insane person, unless the latter has acted during a lucid
interval.
When the imbecile or an insane person has committed an act which the law
defines as a felony (delito), the court shall order his confinement on one of the
hospital or asylums established for persons thus afflicted. He shall not be
permitted to leave without first obtaining the permission of the same court.
Requisites:
Offender is an imbecile
Offender was insane at the time of the commission of the crime
IMBECILITY OR INSANITY
An imbecile is exempt in all cases from criminal liability. The insane is not so
exempt if it can be shown that he acted during a lucid interval. In the latter, loss
of consciousness of ones acts and not merely abnormality of mental faculties
will qualify ones acts as those of an insane.
Procedure: court is to order the confinement of such persons in the hospitals or
asylums established. Such persons will not be permitted to leave without
permission from the court. The court, on the other hand, has no power to order
such permission without first obtaining the opinion of the DOH that such
persons may be released without danger.
Presumption is always in favor of sanity. The defense has the burden to prove
that the accused was insane at the time of the commission of the crime. For the
ascertainment such mental condition of the accused, it is permissible to receive
evidence of the condition of his mind during a reasonable period both before
and after that time. Circumstantial evidence which is clear and convincing will
suffice. An examination of the outward acts will help reveal the thoughts,
motives and emotions of a person and if such acts conform to those of people
of sound mind.
Insanity at the time of the commission of the crime and not that at the time of
the trial will exempt one from criminal liability. In case of insanity at the time
of the trial, there will be a suspension of the trial until the mental capacity of
the accused is restored to afford him a fair trial.
Evidence of insanity must refer to the time preceding the act under prosecution
or to the very moment of its execution. Without such evidence, the accused is
presumed to be sane when he committed the crime. Continuance of insanity
which is occasional or intermittent in nature will not be presumed. Insanity at
another time must be proved to exist at the time of the commission of the crime.
A person is also presumed to have committed a crime in one of the lucid
intervals. Continuance of insanity will only be presumed in cases wherein the
accused has been adjudged insane or has been committed to a hospital or an
asylum for the insane.
Instances of Insanity:
Reyes: Feeblemindedness is not imbecility because the offender can distinguish
right from wrong. An imbecile and an insane to be exempted must not be able
to distinguish right from wrong.
Relova: Feeblemindedness is imbecility.
Crimes committed while in a dream, by a somnambulist are embraced in the
plea of insanity. Hypnotism, however, is a debatable issue.
Crime committed while suffering from malignant malaria is characterized by
insanity at times thus such person is not criminally liable.
Basis: complete absence of intelligence, and element of voluntariness.
Definition: An imbecile is one who while advanced in age has a mental
development comparable to that of children between 2 and 7 years of age. An
insane is one who acts with complete deprivation of intelligence/reason or
without the least discernment or with total deprivation of freedom of the will.
Dementia praecox is covered by the term insanity because homicidal attack is
common in such form of psychosis. It is characterized by delusions that he is
being interfered with sexually, or that his property is being taken, thus the
person has no control over his acts.
Kleptomania or presence of abnormal, persistent impulse or tendency to steal,
to be considered exempting, will still have to be investigated by competent
psychiatrist to determine if the unlawful act is due to the irresistible impulse
produced by his mental defect, thus loss of will-power. If such mental defect
only diminishes the exercise of his willpower and did not deprive him of the
consciousness of his acts, it is only mitigating.
Epilepsy which is a chronic nervous disease characterized by convulsive
motions of the muscles and loss of consciousness may be covered by the term
insanity. However, it must be shown that commission of the offense is during
one of those epileptic attacks.
2. A person under nine years of age.
MINORITY
Under nine years to be construed nine years or less. Such was inferred from the
next subsequent paragraph which does not totally exempt those over nine years
of age if he acted with discernment.
Presumptions of incapability of committing a crime is absolute.
Age is computed up to the time of the commission of the crime. Age can be
established by the testimonies of families and relatives.
Senility or second childhood is only mitigating.
4 periods of the life of a human being:
Requisite: Offender is under 9 years of age at the time of the commission of the
crime. There is absolute criminal irresponsibility in the case of a minor under
9-years of age.
Basis: complete absence of intelligence.
3. A person over nine years of age and under fifteen, unless he has acted
with discernment, in which case, such minor shall be proceeded against in
accordance with the provisions of article 80 of this Code.
When such minor is adjudged to be criminally irresponsible, the court, in
conformity with the provisions of this and the preceding paragraph, shall
commit him to the care and custody of his family who shall be charged with his
surveillance and education; otherwise, he shall be committed to the care of some
institution or person mentioned in said article 80.
QUALIFIED MINORITY: Basis: complete absence of intelligence
Such minor over 9 years and under 15 years of age must have acted without
discernment to be exempted from criminal liability. If with discernment, he is
criminally liable.
Presumption is always that such minor has acted without discernment. The
prosecution is burdened to prove if otherwise.
Discernment means the mental capacity of a minor between 9 and 15 years of
age to fully appreciate the consequences of his unlawful act. Such is shown by:
(1) manner the crime was committed (i.e. commission of the crime during
nighttime to avoid detection; taking the loot to another town to avoid
discovery), or (2) the conduct of the offender after its commission (i.e. elation
of satisfaction upon the commission of his criminal act as shown by the accused
cursing at the victim).
Facts or particular facts concerning personal appearance which lead officers or
the court to believe that his age was as stated by said officer or court should be
stated in the record.
If such minor is adjudged to be criminally liable, he is charged to the custody
of his family, otherwise, to the care of some institution or person mentioned in
article 80. This is because of the court’s presupposition that the minor
committed the crime without discernment.
Allegation of “with intent to kill” in the information is sufficient allegation of
discernment as such conveys the idea that he knew what would be the
consequences of his unlawful act. Thus is the case wherein the information
alleges that the accused, with intent to kill, willfully, criminally and feloniously
pushed a child of 8 1/2 years of age into a deep place. It was held that the
requirement that there should be an allegation that she acted with discernment
should be deemed amply met.
4. Any person who, while performing a lawful act with due care, causes an
injury by mere accident without fault or intention of causing it.
ACCIDENT: Basis: lack of negligence and intent.
Elements:
Discharge of a firearm in a thickly populated place in the City of Manila being
prohibited by Art. 155 of the RPC is not a performance of a lawful act when
such led to the accidental hitting and wounding of 2 persons.
Drawing a weapon/gun in the course of self-defense even if such fired and
seriously injured the assailant is a lawful act and can be considered as done with
due care since it could not have been done in any other manner.
With the fact duly established by the prosecution that the appellant was guilty
of negligence, this exempting circumstance cannot be applied because
application presupposes that there is no fault or negligence on the part of the
person performing the lawful act.
Accident happens outside the sway of our will, and although it comes about
some act of our will, lies beyond the bounds of humanly foreseeable
consequences.
The accused, who, while hunting saw wild chickens and fired a shot can be
considered to be in the performance of a lawful act executed with due care and
without intention of doing harm when such short recoiled and accidentally
wounded another. Such was established because the deceased was not in the
direction at which the accused fired his gun.
The chauffeur, who while driving on the proper side of the road at a moderate
speed and with due diligence, suddenly and unexpectedly saw a man in front of
his vehicle coming from the sidewalk and crossing the street without any
warning that he would do so, in effect being run over by the said chauffeur, was
held not criminally liable, it being by mere accident.
A person is performing a lawful act
Exercise of due dare
He causes injury to another by mere accident
Without fault or intention of causing it.
5. Any person who acts under the compulsion of an irresistible force.
IRRESISTIBLE FORCE: Basis: complete absence of freedom, an element of
voluntariness
Elements:
Force, to be irresistible, must produce such an effect on an individual that
despite of his resistance, it reduces him to a mere instrument and, as such,
incapable of committing a crime. It compels his member to act and his mind to
obey. It must act upon him from the outside and by a third person.
Baculi, who was accused but not a member of a band which murdered some
American school teachers and was seen and compelled by the leaders of the
band to bury the bodies, was not criminally liable as accessory for concealing
the body of the crime. Baculi acted under the compulsion of an irresistible
force.
Irresistible force can never consist in an impulse or passion, or obfuscation. It
must consist of an extraneous force coming from a third person.
That the compulsion is by means of physical force
That the physical force must be irresistible.
That the physical force must come from a third person
6. Any person who acts under the impulse of an uncontrollable fear of an
equal or greater injury.
UNCONTROLLABLE FEAR: Basis: complete absence of freedom
Elements
 that the threat which causes the fear is of an evil greater than, or at
least equal to that w/c he is required to commit
 that it promises an evil of such gravity and imminence that the
ordinary man would have succumbed to it.
Duress, to be a valid defense, should be based on real, imminent or reasonable
fear for one’s life or limb. It should not be inspired by speculative, fanciful or
remote fear.
Threat of future injury is not enough. The compulsion must leave no
opportunity to the accused for escape or self-defense in equal combat.
Duress is the use of violence or physical force.
There is uncontrollable fear is when the offender employs intimidation or threat
in compelling another to commit a crime, while irresistible force is when the
offender uses violence or physical force to compel another person to commit a
crime.
“An act done by me against my will is not my act”
7. Any person who fails to perform an act required by law, when prevented
by some lawful or insuperable cause.
LAWFUL OR INSUPERABLE CAUSE: Basis: acts without intent, the third
condition of voluntariness in intentional felony
Elements:
 That an act is required by law to be done
 That a person fails to perform such act
 That his failure to perform such act was due to some lawful or
insuperable cause
Examples of lawful cause:
To be an EXEMPTING circumstance – INTENT IS WANTING
INTENT – presupposes the exercise of freedom and the use of intelligence
Distinction between justifying and exempting circumstance:
Priest can’t be compelled to reveal what was confessed to him
No available transportation – officer not liable for arbitrary detention
Mother who was overcome by severe dizziness and extreme debility, leaving
child to die – not liable for infanticide
Exempting – there is a crime but there is no criminal. Act is not justified but the
actor is not criminally liable.
General Rule: There is civil liability
Exception: Par 4 (causing an injury by mere accident) and Par 7 (lawful cause)
b. Justifying – person does not transgress the law, does not commit any crime
because there is nothing unlawful in the act as well as the intention of the actor.
Absolutory Causes – are those where the act committed is a crime but for some
reason of public policy and sentiment, there is no penalty imposed.
Exempting and Justifying Circumstances are absolutory causes.
Other examples of absolutory causes:
1) Art 6 – spontaneous desistance
2) Art 20 – accessories exempt from criminal liability
3) Art 19 par 1 – profiting one’s self or assisting offenders to profit by the
effects of the crime
MITIGATING CIRCUMSTANCES
Definition – Those circumstance which reduce the penalty of a crime
Effect – Reduces the penalty of the crime but does not erase criminal liability
nor change the nature of the crime
Article 13.
1. Those mentioned in the preceding chapter, when all the requisites necessary
to justify the act or to exempt from criminal liability in the respective cases are
not attendant
Justifying circumstances
Self-defense/defense of relative/defense of stranger – unlawful aggression must
be present for Art 13 to be applicable. Other 2 elements not necessary. If 2
requisites are present – considered a privileged mitigating circumstance.
Example: Juan makes fun of Pedro. Pedro gets pissed off, gets a knife and tries
to stab Juan. Juan grabs his own knife and kills Pedro. Incomplete self-defense
because although there was unlawful aggression and reasonable means to repel
was taken, there was sufficient provocation on the part of Juan. But since 2
elements are present, it considered as privileged mitigating.
b. State of Necessity (par 4) avoidance of greater evil or injury; if any of the last
2 requisites is absent, there’s only an ordinary Mitigating Circumstance.
Example: While driving his car, Juan sees Pedro carelessly crossing the street.
Juan swerves to avoid him, thus hitting a motorbike with 2 passengers, killing
them instantly. Not all requisites to justify act were present because harm done
to avoid injury is greater. Considered as mitigating.
c. Performance of Duty (par 5)
Example: Juan is supposed to arrest Pedro. He thus goes to Pedro’s hideout.
Juan sees a man asleep. Thinking it was Pedro, Juan shot him. Juan may have
acted in the performance of his duty but the crime was not a necessary
consequence thereof. Considered as mitigating.
Exempting circumstance
a. Minority over 9 and under 15 – if minor acted with discernment, considered
mitigating
Example: 13 year old stole goods at nighttime. Acted with discernment as
shown by the manner in which the act was committed.
b. Causing injury by mere accident – if 2nd requisite (due care) and 1st part of
4th requisite (without fault – thus negligence only) are ABSENT, considered as
mitigating because the penalty is lower than that provided for intentional felony.
Example: Police officer tries to stop a fight between Juan and Pedro by firing
his gun in the air. Bullet ricocheted and killed Petra. Officer willfully discharged
his gun but was unmindful of the fact that area was populated.
c. Uncontrollable fear – only one requisite present, considered mitigating
Example: Under threat that their farm will be burned, Pedro and Juan took turns
guarding it at night. Pedro fired in the air when a person in the shadows refused
to reveal his identity. Juan was awakened and shot the unidentified person.
Turned out to be a neighbor looking for is pet. Juan may have acted under the
influence of fear but such fear was not entirely uncontrollable. Considered
mitigating
2. That the offender is under 18 years of age or over 70 years. In the case of a
minor, he shall be proceeded against in accordance with the provisions of Art
192 of PD 903
Applicable to:
a. Offender over 9, under 15 who acted with discernment
b. Offender over 15, under 18
c. Offender over 70 years
Age of accused which should be determined as his age at the date of commission
of crime, not date of trial
Various Ages and their Legal Effects
a. under 9 – exemptive circumstance
b. over 9, below 15 – exemptive; except if acted with discernment
c. minor delinquent under 18 – sentence may be suspended (PD 603)
d. under 18 – privileged mitigating circumstance
e. 18 and above – full criminal responsibility
f. 70 and above – mitigating circumstance; no imposition of death penalty;
execution g. of death sentence if already imposed is suspended and commuted.
3. That the offender had no intention to commit so grave a wrong as that
committed (praeter intentionam)
Can be used only when the facts prove to show that there is a notable and
evident disproportion between means employed to execute the criminal act and
its consequences
Intention: as an internal act, is judged by the proportion of the means employed
to the evil produced by the act, and also by the fact that the blow was or was
not aimed at a vital part of the body.
Judge by considering (1) the weapon used, (2) the injury inflicted and (3) the
attitude of mind when the accuser attacked the other.
Example: Pedro stabbed Tomas on the arm. Tomas did not have the wound
treated, so he died from loss of blood.
Not applicable when offender employed brute force
Example: Rapist choked victim. Brute force of choking contradicts claim that
he had no intention to kill the girl.
Art 13, par 3 addresses itself to the intention of the offender at the particular
moment when he executes or commits the criminal act, not to his intention
during the planning stage.
In crimes against persons – if victim does not die, the absence of the intent to
kill reduces the felony to mere physical injuries. It is not considered as
mitigating. Mitigating only when the victim dies.
Example: As part of fun-making, Juan merely intended to burn Pedro’s clothes.
Pedro received minor burns. Juan is charged with physical injuries. Had Pedro
died, Juan would be entitled to the mitigating circumstance.
Not applicable to felonies by negligence. Why? In felonies through negligence,
the offender acts without intent. The intent in intentional felonies is replaced by
negligence, imprudence, lack of foresight or lack of skill in culpable felonies.
There is no intent on the part of the offender which may be considered as
diminished.
Basis of par 3: intent, an element of voluntariness in intentional felony, is
diminished
4. That the sufficient provocation or threat on the part of the offended party
immediately preceded the act.
Provocation – any unjust or improper conduct or act of the offended party,
capable of exciting, inciting or irritating anyone.
Basis: diminution of intelligence and intent
Requisites:
a. Provocation must be sufficient.
1. Sufficient – adequate enough to excite a person to commit the wrong and
must accordingly be proportionate to its gravity.
2. Sufficiency depends on:
 the act constituting the provocation
 the social standing of the person provoked
 time and place provocation took place
3. Example: Juan likes to hit and curse his servant. His servant thus killed him.
There’s mitigating circumstance because of sufficient provocation.
4. When it was the defendant who sought the deceased, the challenge to fight
by the deceased is NOT sufficient provocation.
b. It must originate from the offended party
1. Why? Law says the provocation is “on the part of the offended party”
2. Example: Tomas’ mother insulted Petra. Petra kills Tomas because of the
insults. No Mitigating Circumstance because it was the mother who insulted
her, not Tomas.
3. Provocation by the deceased in the first stage of the fight is not Mitigating
Circumstance when the accused killed him after he had fled because the
deceased from the moment he fled did not give any provocation for the accused
to pursue and attack him.
c. Provocation must be immediate to the act. i.e., to the commission of the crime
by the person who is provoked
Why? If there was an interval of time, the conduct of the offended party could
not have excited the accused to the commission of the crime, he having had time
to regain his reason and to exercise self-control.
Threat should not be offensive and positively strong because if it was, the threat
to inflict real injury is an unlawful aggression which may give rise to self-
defense and thus no longer a Mitigating Circumstance
5. That the act was committed in the immediate vindication of a grave offense
to the one committing the felony (delito), his spouse, ascendants, descendants,
legitimate, natural or adopted brother or sisters, or relatives by affinity within
the same degree.
1. Requisites:
 There’s a grave offense done to the one committing the felony etc.
 That the felony is committed in vindication of such grave offense.
2. Lapse of time is allowed between the vindication and the one doing the
offense (proximate time, not just immediately after)
3. Example: Juan caught his wife and his friend in a compromising situation.
Juan kills his friend the next day – still considered proximate.
More lenient in vindication because offense concerns the honor of the person.
Such is more worthy of consideration than mere spite against the one giving the
provocation or threat.
Vindication of a grave offense and passion and obfuscation can’t be counted
separately and independently
6. That of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation
Passion and obfuscation is mitigating: when there are causes naturally
producing in a person powerful excitement, he loses his reason and self-control.
Thereby dismissing the exercise of his will power.
PASSION AND OBFUSCATION are Mitigating Circumstances only when the
same arise from lawful sentiments (not Mitigating Circumstance when done in
the spirit of revenge or lawlessness)
Requisites for Passion & Obfuscation
a. The offender acted on impulse powerful enough to produce passion or
obfuscation
b. That the act was committed not in the spirit of lawlessness or revenge
c. The act must come from lawful sentiments
Act which gave rise to passion and obfuscation
a. That there be an act, both unlawful and unjust
b. The act be sufficient to produce a condition of mind
c. That the act was proximate to the criminal act
d. The victim must be the one who caused the passion or obfuscation
Example: Juan saw Tomas hitting his (Juan) son. Juan stabbed Tomas. Juan is
entitled to Mitigating Circumstance of P&O as his actuation arose from a
natural instinct that impels a father to rush to the rescue of his son.
The exercise of a right or a fulfillment of a duty is not the proper source of P&O.
Example: A policeman arrested Juan as he was making a public disturbance on
the streets. Juan’s anger and indignation resulting from the arrest can’t be
considered passionate obfuscation because the policeman was doing a lawful
act.
The act must be sufficient to produce a condition of mind. If the cause of the
loss of self-control was trivial and slight, the obfuscation is not mitigating.
Example: Juan’s boss punched him for not going to work the other day. Cause
is slight.
There could have been no Mitigating Circumstance of P&O when more than 24
hours elapsed between the alleged insult and the commission of the felony, or
several hours have passed between the cause of the P&O and the commission
of the crime, or at least ½ hours intervened between the previous fight and
subsequent killing of deceased by accused.
Not mitigating if relationship is illegitimate
The passion or obfuscation will be considered even if it is based only on the
honest belief of the offender, even if facts turn out to prove that his beliefs were
wrong.
Passion and obfuscation cannot co-exist with treachery since the means that the
offender has had time to ponder his course of action.
PASSION AND OBFUSCATION arising from one and the same cause should
be treated as only one mitigating circumstance
Vindication of grave offense can’t co-exist w/ PASSION AND
OBFUSCATION
7. That the offender had voluntarily surrendered himself to a person in authority
or his agents, or that he had voluntarily confessed his guilt before the court prior
to the presentation of the evidence for the prosecution.
2 Mitigating Circumstances present:
a) Voluntarily surrendered
b) Voluntarily confessed his guilt
If both are present, considered as 2 independent mitigating circumstances.
Mitigate penalty to a greater extent
Requisites of voluntary surrender:
a) Offender not actually arrested
b) Offender surrendered to a person in authority or the latter’s
agent
c) Surrender was voluntary
Surrender must be spontaneous – shows his interest to surrender
unconditionally to the authorities
Spontaneous – emphasizes the idea of inner impulse, acting without external
stimulus. The conduct of the accused, not his intention alone, after the
commission of the offense, determines the spontaneity of the surrender.
Example: Surrendered after 5 years, not spontaneous anymore.
Example: Surrendered after talking to town councilor. Not V.S. because there’s
an external stimulus
Conduct must indicate a desire to own the responsibility
Not mitigating when warrant already served. Surrender may be considered
mitigating if warrant not served or returned unserved because accused can’t be
located.
Surrender of person required. Not just of weapon.
Person in authority – one directly vested with jurisdiction, whether as an
individual or as a member of some
court/government/corporation/board/commission. Barrio captain/chairman
included.
Agent of person in authority – person who by direct provision of law, or be
election, or by appointment by competent authority is charged with the
maintenance of public order and the protection and security of life and property
and any person who comes to the aid of persons in authority.
RPC does not make distinction among the various moments when surrender
may occur.
Surrender must be by reason of the commission of the crime for which
defendant is charged
Requisites for plea of guilty
a) Offender spontaneously confessed his guilt
b) Confession of guilt was made in open court (competent court)
c) Confession of guilt was made prior to the presentation of
evidence for the prosecution
Plea made after arraignment and after trial has begun does not entitle accused
to have plea considered as Mitigating Circumstance
Plea in the RTC in a case appealed from the MTC is not mitigating – must make
plea at the first opportunity
Plea during the preliminary investigation is no plea at all
even if during arraignment, accused pleaded not guilty, he is entitled to
Mitigating Circumstance as long as withdraws his plea of not guilty to the
charge before the fiscal could present his evidence
Plea to a lesser charge is not Mitigating Circumstance because to be voluntary
plea of guilty, must be to the offense charged
Plea to the offense charged in the amended info, lesser than that charged in the
original info, is Mitigating Circumstance
Present Rules of Court require that even if accused pleaded guilty to a capital
offense, it’s mandatory for court to require the prosecution to prove the guilt of
the accused being likewise entitled to present evidence to prove, inter alia,
Mitigating Circumstance
8. That the offender is deaf and dumb, blind or otherwise suffering from some
physical defect w/c thus restricts his means of action, defense or communication
w/ his fellow beings.
Basis: one suffering from physical defect which restricts him does not have
complete freedom of action and therefore, there is diminution of that element
of voluntariness.
No distinction between educated and uneducated deaf-mute or blind persons
The physical defect of the offender should restrict his means of action, defense
or communication with fellow beings, this has been extended to cover cripples,
armless people even stutterers.
The circumstance assumes that with their physical defect, the offenders do not
have a complete freedom of action therefore diminishing the element of
voluntariness in the commission of a crime.
9. Such illness of the offender as would diminish the exercise of the will-power
of the offender w/o depriving him of consciousness of his acts.
Basis: diminution of intelligence and intent
Requisites:
a) Illness of the offender must diminish the exercise of his will-
power
 b) Such illness should not deprive the offender of consciousness b) The place where the act was committed
of his acts
c) The means and ways used
When the offender completely lost the exercise of will-power, it may be an
exempting circumstance d) The time
Deceased mind, not amounting to insanity, may give place to mitigation e) The personal circumstance of the offender
10. And any other circumstance of a similar nature and analogous to those
f) The personal circumstance of the victim
above-mentioned

Examples of “any other circumstance”: Kinds:

a) Defendant who is 60 years old with failing eyesight is similar a) Generic – generally applicable to all crimes
to a case of one over 70 years old
b) Outraged feeling of owner of animal taken for ransom is b) Specific – apply only to specific crimes (ignominy – for chastity crimes;
analogous to vindication of grave offense treachery – for persons crimes)
c) Impulse of jealous feeling, similar to PASSION AND
OBFUSCATION c) Qualifying – those that change the nature of the crime (evident
d) Voluntary restitution of property, similar to voluntary surrender premeditation – becomes murder)
e) Extreme poverty, similar to incomplete justification based on
state of necessity d) Inherent – necessarily accompanies the commission of the crime (evident
premeditation in theft, estafa)
NOT analogous:
Aggravating Circumstances which DO NOT have the effect of increasing the
a) Killing wrong person penalty:
b) Not resisting arrest not the same as voluntary surrender
c) Running amuck is not mitigating 1) Which themselves constitute a crime specifically punishable by law or
which are included in the law defining a crime and prescribing the penalty
MITIGATING CIRCUMSTANCE which arise from: thereof

a) Moral attributes of the offender Example: breaking a window to get inside the house and rob it

Example: Juan and Tomas killed Pedro. Juan acted w/ PASSION AND 2) Aggravating circumstance inherent in the crime to such degree that it must
OBFUSCATION. Only Juan will be entitled to Mitigating Circumstance of necessity accompany the commission thereof

b) Private relations with the offended party Example: evident premeditation inherent in theft, robbery, estafa, adultery and
concubinage
Example: Juan stole his brother’s watch. Juan sold it to Pedro, who knew it was
stolen. The circumstance of relation arose from private relation of Juan and the
Aggravating circumstances are not presumed. Must be proved as fully as the
brother. Does not mitigate Pedro.
crime itself in order to increase the penalty.
c) Other personal cause
Art 14. Aggravating circumstances. — The following are aggravating
Example: Minor, acting with discernment robbed Juan. Pedro, passing by, circumstances:
helped the minor. Circumstance of minority, mitigates liability of minor only.
1. That advantage be taken by the offender of his public position
Shall serve to mitigate the liability of the principals, accomplices and
Requisites:
accessories to whom the circumstances are attendant.
The offender is a public officer
Circumstances which are neither exempting nor mitigating
The commission of the crime would not have been possible without the powers,
a) mistake in the blow
resources and influence of the office he holds.
b) mistake in the identity of the victim
Essential – Public officer used the influence, prestige or ascendancy which his
c) Entrapment of the accused office gives him as the means by which he realized his purpose.

d) Accused is over 18 years old Failure in official is tantamount to abusing of office

e) Performance of a righteous action Wearing of uniform is immaterial – what matters is the proof that he indeed
took advantage of his position
Example: Juan saved the lives of 99 people but caused the death of the last
person, he is still criminally liable 2. That the crime be committed in contempt of or with insult to the public
authorities
AGGRAVATING CIRCUMSTANCES
Requisites:
Definition – Those circumstance which raise the penalty for a crime without
exceeding the maximum applicable to that crime. The offender knows that a public authority is present

Basis: The greater perversity of the offense as shown by: The public authority is engaged in the exercise of his functions

a) The motivating power behind the act The public authority is not the victim of the crime

The public authority’s presence did not prevent the criminal act
Example: Juan and Pedro are quarrelling and the municipal mayor, upon
passing by, attempts to stop them. Notwithstanding the intervention and the
presence of the mayor, Juan and Pedro continue to quarrel until Juan succeeds
in killing Pedro.
Person in authority – public authority who is directly vested with jurisdiction,
has the power to govern and execute the laws
Examples of Persons in Authority
Governor
Mayor
Barangay captain
Councilors
Government agents
Chief of Police
Rule not applicable when committed in the presence of a mere agent.
Agent – subordinate public officer charged with the maintenance of public order
and protection and security of life and property
Example: barrio vice lieutenant, barrio councilman
3. That the act be committed:
(1) with insult or in disregard of the respect due to the offended party on
account of his (a) rank, (b) age, (c) sex or
(2) That it be committed in the dwelling of the offended party, if the latter has
not given provocation.
Circumstances (rank, age, sex) may be taken into account only in crimes against
persons or honor, it cannot be invoked in crimes against property
Rank – refers to a high social position or standing by which to determine one’s
pay and emoluments in any scale of comparison within a position
Age – the circumstance of lack of respect due to age applies in case where the
victim is of tender age as well as of old age
Sex – refers to the female sex, not to the male sex; not applicable when
The offender acted w/ PASSION AND OBFUSCATION
There exists a relation between the offender and the victim (but in cases of
divorce decrees where there is a direct bearing on their child, it is applicable)
The condition of being a woman is indispensable in the commission of the crime
(Ex. Parricide, rape, abduction)
Requisite of disregard to rank, age, or sex
Crimes must be against the victim’s person or his honor
There is deliberate intent to offend or insult the respect due to the victim’s rank,
age, or sex
Disregard to rank, age, or sex is absorbed by treachery or abuse of strength
Dwelling – must be a building or structure exclusively used for rest and comfort
(combination house and store not included)
May be temporary as in the case of guests in a house or bed spacers
Basis for this is the sanctity of privacy the law accords to human abode
Dwelling includes dependencies, the foot of the staircase and the enclosure
under the house
Elements of the aggravating circumstance of dwelling
Crime occurred in the dwelling of the victim
No provocation on the part of the victim
Requisites for Provocation: ALL MUST CONCUR
Given by the owner of the dwelling
Sufficient
Immediate to the commission of the crime
4. That the act be committed with (1) abuse of confidence or (2) obvious
ungratefulness
Example: A jealous lover, already determined to kill his sweetheart, invited her
for a ride and during that ride, he stabbed her
Abuse of confidence is inherent in:
Malversation
Qualified theft
Estafa by conversion
Misappropriation
Qualified seduction
5. That the crime be committed in the palace of the Chief Executive, or in his
presence, or when public authorities are engaged in the discharge of their duties,
or in a place dedicated to religious worship.
Requirements of the aggravating circumstance of public office:
A polling precinct is a public office during Election Day
Nature of public office should be taken into account, like a police station which
is on duty 24 hrs. A day
Place of the commission of the felony (par 5): if it is Malacañang palace or a
church is aggravating, regardless of whether State or official; functions are
being held.
As regards other places where public authorities are engaged in the discharge
of their duties, there must be some performance of public functions
The offender must have intention to commit a crime when he entered the place
Requisites for aggravating circumstances for place of worship:
The crime occurred in the public office
Public authorities are actually performing their public duties
The crime occurred in a place dedicated to the worship of God regardless of
religion
Offender must have decided to commit the crime when he entered the place of
worship
6a. that the crime be committed (1) in the nighttime, or (2) in an uninhabited
place (3) by a band, whenever such circumstances may facilitate the
commission of the offense.
Nighttime, Uninhabited Place or By a Bang Aggravating when:
Impunity – means to prevent the accused’s being recognized or to secure
himself against detection or punishment
Nighttime begins at the end of dusk and ending at dawn; from sunset to sunrise
Uninhabited Place – one where there are no houses at all, a place at a
considerable distance from town, where the houses are scattered at a great
distance from each other
It facilitated the commission of the crime
Especially sought for by the offender to insure the commission of the crime or
for the purpose of impunity
When the offender took the advantage thereof for the purpose of impunity
Commission of the crime must have begun and accomplished at nighttime
Commission of the crime must begin and be accomplished in the nighttime
When the place of the crime is illuminated by light, nighttime is not aggravating
Absorbed by Treachery
Requisites:
The place facilitated the commission or omission of the crime
Deliberately sought and not incidental to the commission or omission of the
crime
Taken advantage of for the purpose of impunity
What should be considered here is whether in the place of the commission of
the offense, there was a reasonable possibility of the victim receiving some help
6b. – Whenever more than 3 armed malefactors shall have acted together in the
commission of an offense, it shall be deemed to have been committed by a band.
Requisites:
If one of the four-armed malefactors is a principal by inducement, they do not
form a band because it is undoubtedly connoted that he had no direct
participation,
Band is inherent in robbery committed in band and brigandage
It is not considered in the crime of rape
It has been applied in treason and in robbery with homicide
Facilitated the commission of the crime
Deliberately sought
Taken advantage of for the purposes of impunity
There must be four or more armed men
7. That the crime be committed on the occasion of a conflagration, shipwreck,
earthquake, epidemic or other calamity or misfortune
Requisites:
Committed when there is a calamity or misfortune
Conflagration
Shipwreck
Epidemic
Offender took advantage of the state of confusion or chaotic condition from
such misfortune
Basis: Commission of the crime adds to the suffering by taking advantage of
the misfortune.
Based on time
Offender must take advantage of the calamity or misfortune
That the crime be committed with the aid of (1) armed men or (2) persons who
insure or afford impunity
Based on the means and ways
Requisites:
Exceptions:
That armed men or persons took part in the commission of the crime, directly
or indirectly
That the accused availed himself of their aid or relied upon them when the crime
was committed
When both the attacking party and the party attacked were equally armed
Not present when the accused as well as those who cooperated with him in the
commission of the crime acted under the same plan and for the same purpose.
Casual presence, or when the offender did not avail himself of any of their aid
nor did not knowingly count upon their assistance in the commission of the
crime
If there are more than 3 armed men, aid of armed men is absorbed in the
employment of a band.
9. That the accused is a recidivist
Recidivist – one who at the time of his trial for one crime, shall have been
previously convicted by final judgment of another crime embraced in the same
title of the RPC
Basis: Greater perversity of the offender as shown by his inclination to commit
crimes
Requisites:
What is controlling is the time of the trial, not the time of the commission of the
offense. At the time of the trial means from the arraignment until after sentence
is announced by the judge in open court.
When does judgment become final? (Rules of Court)
Example of Crimes embraced in the same title of the RPC
Q: The accused was prosecuted and tried for theft, robbery and estafa.
Judgments were read on the same day. Is he a recidivist?
Offender is on trial for an offense
He was previously convicted by final judgment of another crime
That both the first and the second offenses are embraced in the same title of the
RPC
The offender is convicted of the new offense
After the lapse of a period for perfecting an appeal
When the sentence has been partially or totally satisfied or served
Defendant has expressly waived in writing his right to appeal
The accused has applied for probation
Robbery and theft – title 10
Homicide and physical injuries – title 8
A: No. Because the judgment in any of the first two offenses was not yet final
when he was tried for the third offense
Recidivism must be taken into account no matter how many years have
intervened between the first and second felonies
Pardon does not obliterate the fact that the accused was a recidivist, but amnesty
extinguishes the penalty and its effects
To prove recidivism, it must be alleged in the information and with attached
certified copies of the sentences rendered against the accused
Exceptions: if the accused does not object and when he admits in his confession
and on the witness stand.
10. That the offender has been previously punished for an offense to which the
law attaches an equal or greater penalty or for two or more crimes to which it
attaches a lighter penalty
Reiteration or Habituality – it is essential that the offender be previously
punished; that is, he has served sentence.
Par. 10 speaks of penalty attached to the offense, not the penalty actually
imposed
4 Forms of Repetition
Habitual Delinquency – when a person within a period of 10 years from the
date of his release or last conviction of the crimes of serious or less serious
physical injuries, robbery, theft, estafa or falsification is found guilty of any of
said crimes a third time or oftener.
Quasi-Recidivism – any person who shall commit a felony after having been
convicted by final judgment, before beginning to serve such sentence, or while
serving the same, shall be punished by the maximum period of the penalty
prescribed by law for the new felony
Recidivism – generic
Reiteration or Habituality – generic
Multiple recidivism or Habitual delinquency – extraordinary aggravating
Quasi-Recidivism – special aggravating
11. That the crime be committed in consideration of a price, reward or promise.
Requisites:
At least 2 principals
1. The principal by inducement
2. The principal by direct participation
The price, reward, or promise should be previous to and in consideration of the
commission of the criminal act
Applicable to both principals.
12. That the crime be committed by means of inundation, fire, poison,
explosion, stranding a vessel or intentional damage thereto, or derailment of a
locomotive, or by use of any other artifice involving great waste or ruin.
Requisite: The wasteful means were used by the offender to accomplish a
criminal purpose
13. That the act be committed with evident premeditation
Essence of premeditation: the execution of the criminal act must be preceded
by cool thought and reflection upon the resolution to carry out the criminal
intent during the space of time sufficient to arrive at a calm judgment
Requisites:
Conspiracy generally presupposes premeditation
When victim is different from that intended, premeditation is not aggravating.
Although it is not necessary that there is a plan to kill a particular person for
premeditation to exist (e.g. plan to kill first 2 persons one meets, general attack
on a village…for as long as it was planned)
The premeditation must be based upon external facts, and must be evident, not
merely suspected indicating deliberate planning
Evident premeditation is inherent in robbery, adultery, theft, estafa,
falsification, and etc.
The time when the offender determined to commit the crime
An act manifestly indicating that the culprit has clung to his determination
A sufficient lapse of time between the determination and execution to allow him
to reflect upon the consequences of his act and to allow his conscience to
overcome the resolution of his will
14. That (1) craft, (2) fraud, or (3) disguise be employed
Craft – involves intellectual trickery and cunning on the part of the accused.
It is employed as a scheme in the execution of the crime (e.g. accused pretended
to be members of the constabulary, accused in order to perpetrate rape, used
chocolates containing drugs)
Fraud –involves insidious words or machinations used to induce victim to act
in a manner which would enable the offender to carry out his design.
As distinguished from craft which involves acts done in order not to arouse the
suspicion of the victim, fraud involves a direct inducement through entrapping
or beguiling language or machinations
Disguise – resorting to any device to conceal identity. Purpose of concealing
identity is a must.
Requisite: The offender must have actually taken advantage of craft, fraud, or
disguise to facilitate the commission of the crime.
Inherent in: estafa and falsification.
15. That (1) advantage be taken of superior strength, or (2) means be employed
to weaken the defense
To purposely use excessive force out of the proportion to the means of defense
available to the person attacked.
Requisite of Means to Weaken Defense
To weaken the defense – illustrated in the case where one struggling with
another suddenly throws a cloak over the head of his opponent and while in the
said situation, he wounds or kills him. Other means of weakening the defense
would be intoxication or disabling thru the senses (casting dirt of sand upon
another’s eyes)
Superiority may arise from aggressor’s sex, weapon or number as compared to
that of the victim (e.g. accused attacked an unarmed girl with a knife; 3 men
stabbed to death the female victim).
No advantage of superior strength when one who attacks is overcome with
passion and obfuscation or when quarrel arose unexpectedly and the fatal blow
was struck while victim and accused were struggling.
Vs. by a band : circumstance of abuse of superior strength, what is taken into
account is not the number of aggressors nor the fact that they are armed but their
relative physical might vis-à-vis the offended party
Means were purposely sought to weaken the defense of the victim to resist the
assault
The means used must not totally eliminate possible defense of the victim,
otherwise it will fall under treachery
16. That the act be committed with treachery (alevosia)
TREACHERY: when the offender commits any of the crime against the
person, employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution without risk to himself arising from
the defense which the offended party might make.
Requisites:
Treachery – can’t be considered when there is no evidence that the accused,
prior to the moment of the killing, resolved to commit to crime, or there is no
proof that the death of the victim was the result of meditation, calculation or
reflection.
Examples: victim asleep, half-awake or just awakened, victim grappling or
being held, stacks from behind
But treachery may exist even if attack is face-to-face – as long as victim was
not given any chance to prepare defense
That at the time of the attack, the victim was not in the position to defend
himself
That the offender consciously adopted the particular means, method or form of
attack employed by him
Does not exist if the accused gave the deceased chance to prepare or there was
warning given or that it was preceded by a heated argument
There is always treachery in the killing of child
Generally characterized by the deliberate and sudden and unexpected attack of
the victim from behind, without any warning and without giving the victim an
opportunity to defend himself
Where there is conspiracy, treachery is considered against all the offenders
Treachery absorbs abuse of strength, aid of armed men, by a band and means to
weaken the defense
17. That the means be employed or circumstances brought about which add
ignominy to the natural effects of the acts
IGNOMINY – is a circumstance pertaining to the moral order, which adds
disgrace and obloquy to the material injury caused by the crime
Applicable to crimes against chastity (rape included), less serious physical
injuries, light or grave coercion and murder
Requisites:
Examples: accused embraced and kissed the offended party not out of lust but
out of anger in front of many people, raped in front of the husband, raped
successively by five men
Tend to make the effects of the crime more humiliating
Ignominy not present where the victim was already dead when such acts were
committed against his body or person
Crime must be against chastity, less serious physical injuries, light or grave
coercion, and murder
The circumstance made the crime more humiliating and shameful for the victim
18. That the crime be committed after an unlawful entry
Unlawful entry – when an entrance is effected by a way not intended for the
purpose. Meant to effect entrance and NOT exit.
Why aggravating? One who acts, not respecting the walls erected by men to
guard their property and provide for their personal safety, shows greater
perversity, a greater audacity and hence the law punishes him with more
severity
Example: Rapist gains entrance thru the window
Inherent in: Trespass to dwelling, robbery with force upon things, and robbery
with violence or intimidation against persons.
19. That as a means to the commission of the crime, a wall, roof, door or
window be broken
Requisites:
Applicable only if such acts were done by the offender to effect entrance.
Breaking is lawful in the following instances:
A wall, roof, window, or door was broken
They were broken to effect entrance
An officer in order to make an arrest may break open a door or window of any
building in which the person to be arrested is or is reasonably believed to be;
An officer if refused admittance may break open any door or window to execute
the search warrant or liberate himself,
20. That the crime be committed (1) with the aid of persons under 15 years of
age, or (2) by means of motor vehicles, airships or other similar means.
Reason for #1: to repress, so far as possible, the frequent practice resorted to by
professional criminals to avail themselves of minors taking advantage of their
responsibility (remember that minors are given leniency when they commit a
crime)
Example: Juan instructed a 14-year old to climb up the fence and open the gate
for him so that he may rob the house
Reason for #2: to counteract the great facilities found by modern criminals in
said means to commit crime and flee and abscond once the same is committed.
Necessary that the motor vehicle be an important tool to the consummation of
the crime (bicycles not included)
Example: Juan and Pedro, in committing theft, used a truck to haul the
appliances from the mansion.
21. That the wrong done in the commission of the crime be deliberately
augmented by causing other wrong not necessary for its commission
Cruelty: when the culprit enjoys and delights in making his victim suffer slowly
and gradually, causing him unnecessary physical pain in the consummation of
the criminal act. Cruelty cannot be presumed nor merely inferred from the body
of the deceased. Has to be proven.
Mere plurality of words do not show cruelty
No cruelty when the other wrong was done after the victim was dead
Requisites:
That the injury caused be deliberately increased by causing other wrong
That the other wrong be unnecessary for the execution of the purpose of the
offender
Art 15. ALTERNATIVE CIRCUMSTANCES. Their concept. — Alternative
circumstances are those which must be taken into consideration as aggravating
or mitigating according to the nature and effects of the crime and the other
conditions attending its commission. They are the relationship, intoxication and
the degree of instruction and education of the offender.
The alternative circumstance of relationship shall be taken into consideration
when the offended party in the spouse, ascendant, descendant, legitimate,
natural, or adopted brother or sister, or relative by affinity in the same degrees
of the offender.
The intoxication of the offender shall be taken into consideration as a
mitigating circumstances when the offender has committed a felony in a state
of intoxication, if the same is not habitual or subsequent to the plan to commit
said felony but when the intoxication is habitual or intentional, it shall be
considered as an aggravating circumstance.
Alternative Circumstances – those which must be taken into consideration as
aggravating or mitigating according to the nature and effects of the crime and
other conditions attending its commission.
They are:
relationship – taken into consideration when offended party is the spouse,
ascendant, descendant, legitimate, natural or adopted brother or sister, or
relative by affinity in the same degree of the offender
Intoxication – mitigating when the offender has committed a felony in the state
of intoxication, if the same is not habitual or subsequent to the plan to commit
the said felony. Aggravating if habitual or intentional
Degree of instruction and education of the offender
Relationship neither mitigating nor aggravating when relationship is an element
of the offense.
Example: parricide, adultery, concubinage.
INTOXICATION
Must show that he has taken such quantity so as to blur his reason and deprive
him of a certain degree of control
A habitual drunkard is given to inebriety or the excessive use of intoxicating
drinks.
Habitual drunkenness must be shown to be an actual and confirmed habit of the
offender, but not necessarily of daily occurrence.
DEGREE OF INSTRUCTION AND EDUCATION
Determined by: the court must consider the circumstance of lack of instruction
Exceptions (not mitigating):
Crimes against property
Crimes against chastity (rape included)
Crime of treason
Art 16. Who are criminally liable. — The following are criminally liable for
grave and less grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies:
1. Principals
2. Accomplices.
Accessories – not liable for light felonies because the individual prejudice is so
small that penal sanction is not necessary
Only natural persons can be criminals as only they can act with malice or
negligence and can be subsequently deprived of liberty. Juridical persons are
liable under special laws.
Manager of a partnership is liable even if there is no evidence of his direct
participation in the crime.
Corporations may be the injured party
General Rule: Corpses and animals have no rights that may be injured.
Exception: defamation of the dead is punishable when it blackens the memory
of one who is dead.
Art 17. Principals. — The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act
without which it would not have been accomplished.
Principals by Direct Participation
Requisites for 2 or more to be principals by direct participation:
Participated in the criminal resolution (conspiracy)
Carried out their plan and personally took part in its execution by acts which
directly tended to the same end
Conspiracy – Is unity of purpose and intention.
Establishment of Conspiracy
Proven by overt act
Not mere knowledge or approval
It is not necessary that there be formal agreement.
Must prove beyond reasonable doubt
Conspiracy is implied when the accused had a common purpose and were united
in execution.
Unity of purpose and intention in the commission of the crime may be shown
in the following cases:
Spontaneous agreement at the moment of the commission of the crime
Active Cooperation by all the offenders in the perpetration of the crime
Contributing by positive acts to the realization of a common criminal intent
Presence during the commission of the crime by a band and lending moral
support thereto.
While conspiracy may be implied from the circumstances attending the
commission of the crime, it is nevertheless a rule that conspiracy must be
established by positive and conclusive evidence.
Conspirator not liable for the crimes of the other which is not the object of the
conspiracy or is not a logical or necessary consequence thereof
Multiple rape – each rapist is liable for another’s crime because each cooperated
in the commission of the rapes perpetrated by the others
Exception: in the crime of murder with treachery – all the offenders must at
least know that there will be treachery in executing the crime or cooperate
therein.
Example: Juan and Pedro conspired to kill Tomas without the previous plan of
treachery. In the crime scene, Juan used treachery in the presence of Pedro and
Pedro knew such. Both are liable for murder. But if Pedro stayed by the gate
while Juan alone killed Tomas with treachery, so that Pedro didn’t know how
it was carried out, Juan is liable for murder while Pedro for homicide.
No such thing as conspiracy to commit an offense through negligence.
However, special laws may make one a co-principal. Example: Under the Pure
Food and Drug Act, a storeowner is liable for the act of his employees of selling
adulterated coffee, although he didn’t know that coffee was being sold.
Conspiracy is negatived by the acquittal of co-defendant.
That the culprits “carried out the plan and personally took part in the execution,
by acts which directly tended to the same end”:
The principals by direct participation must be at the scene of the crime,
personally taking part, although he was not present in the scene of the crime, he
is equally liable as a principal by direct participation.
One serving as guard pursuant to the conspiracy is a principal direct
participation.
If the second element is missing, those who did not participate in the
commission of the acts of execution cannot be held criminally liable, unless the
crime agreed to be committed is treason, sedition, or rebellion.
Principals by Induction
a. “Those who directly force or induce others to commit it”
Principal by induction liable only when principal by direct participation
committed the act induced
Requisites:
Inducement be made directly with the intention of procuring the commission of
the crime
Such inducement be the determining cause of the commission of the crime by
the material executor
d. Forms of Inducements
By Price, reward or promise
By irresistible force or uncontrollable fear
Commander has the intention of procuring the commission of the crime
Commander has ascendancy or influence
Words used be so direct, so efficacious, so powerful
Command be uttered prior to the commission
Executor had no personal reason
Imprudent advice does not constitute sufficient inducement
Requisites for words of command to be considered inducement:
Words uttered in the heat of anger and in the nature of the command that had to
be obeyed do not make one an inductor.
Effects of Acquittal of Principal by direct participation on liability of principal
by inducement
Conspiracy is negated by the acquittal of the co-defendant.
One cannot be held guilty of instigating the commission of the crime without
first showing that the crime has been actually committed by another. But if the
one charged as principal by direct participation be acquitted because he acted
without criminal intent or malice, it is not a ground for the acquittal of the
principal by inducement.
Principals by Indispensable Cooperation
“Those who cooperate in the commission of the offense by another act without
which it would not have been accomplished”
Requisites:
Participation in the criminal resolution
Cooperation through another act (includes negligence)
*there is collective criminal responsibility when the offenders are criminally
liable in the same manner and to the same extent. The penalty is the same for
all.
There is individual criminal responsibility when there is no conspiracy.
Art. 18. Accomplices. — Accomplices are those persons who, not being
included in Art. 17, cooperate in the execution of the offense by previous or
simultaneous acts.
Requisites:
Examples: a) Juan was choking Pedro. Then Tomas ran up and hit Pedro with
a bamboo stick. Juan continued to choke Pedro until he was dead. Tomas is only
an accomplice because the fatal blow came from Juan. b) Lending a dagger to
a killer, knowing the latter’s purpose.
An accomplice has knowledge of the criminal design of the principal and all he
does is concur with his purpose.
There must be a relation between the acts done by the principal and those
attributed to the person charges as accomplice
In homicide or murder, the accomplice must not have inflicted the mortal
wound.
There be a community of design (principal originates the design, accomplice
only concurs)
He cooperates in the execution by previous or simultaneous acts, intending to
give material and moral aid (cooperation must be knowingly done, it must also
be necessary and not indispensable
There be a relation between the acts of the principal and the alleged accomplice
Art. 19. Accessories. — Accessories are those who, having knowledge
of the commission of the crime, and without having participated therein, either
as principals or accomplices, take part subsequent to its commission in any of
the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of
the crime.
2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principals of the
crime, provided the accessory acts with abuse of his public functions or
whenever the author of the crime is guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or is known to be habitually
guilty of some other crime.
Example of Par 1: person received and used property from another, knowing it
was stolen
Example of Par 2: placing a weapon in the hand of the dead who was unlawfully
killed to plant evidence, or burying the deceased who was killed by the
principals
Example of Par 3: a) public officers who harbor, conceal or assist in the escape
of the principal of any crime (not light felony) with abuse of his public
functions, b) private persons who harbor, conceal or assist in the escape of the
author of the crime – guilty of treason, parricide, murder or an attempt against
the life of the President, or who is known to be habitually guilty of some crime.
General Rule: Principal acquitted, Accessory also acquitted
Exception: when the crime was in fact committed but the principal is covered
by exempting circumstances.
Example: Minor stole a ring and Juan, knowing it was stolen, bought it. Minor
is exempt. Juan liable as accessory
Trial of accessory may proceed without awaiting the result of the separate
charge against the principal because the criminal responsibilities are distinct
from each other
Liability of the accessory – the responsibility of the accessory is subordinate
to that of a principal in a crime because the accessory’s participation therein is
subsequent to its commission, and his guilt is directly related to the principal. If
the principal was acquitted by an exempting circumstance the accessory may
still be held liable.
Difference of accessory from principal and accomplice:
Accessory does not take direct part or cooperate in, or induce the commission
of the crime
Accessory does not cooperate in the commission of the offense by acts either
prior thereto or simultaneous therewith
Participation of the accessory in all cases always takes place after the
commission of the crime
Takes part in the crime through his knowledge of the commission of the offense.
Art. 20. Accessories who are exempt from criminal liability. — The
penalties prescribed for accessories shall not be imposed upon those who are
such with respect to their spouses, ascendants, descendants, legitimate, natural,
and adopted brothers and sisters, or relatives by affinity within the same
degrees, with the single exception of accessories falling within the provisions
of paragraph 1 of the next preceding article.
Basis: Ties of blood and the preservation of the cleanliness of one’s name which
compels one to conceal crimes committed by relatives so near as those
mentioned.
Nephew and Niece not included
Accessory not exempt when helped a relative-principal by profiting from the
effects of the crime, or assisted the offender to profit from the effects of the
crime.
Only accessories covered by par 2 and 3 are exempted.
Public officer who helped his guilty brother escape does not incur criminal
liability as ties of blood constitutes a more powerful incentive than the call of
duty.
PENALTY – suffering inflicted by the State for the transgression of a law.
3 fold purpose:
Juridical Conditions of Penalty
Retribution or expiation – penalty commensurate with the gravity of the offense
Correction or reformation – rules which regulate the execution of penalties
consisting of deprivation of liberty
Social defense – inflexible severity to recidivists and habitual delinquents
a. Must be productive of suffering – limited by the integrity of human
personality
b. Must be proportionate to the crime
c. Must be personal – imposed only upon the criminal
d. Must be legal – according to a judgment of fact and law
e. Must be equal – applies to everyone regardless of the circumstance
f. Must be correctional – to rehabilitate the offender
CASES
1st
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 158253 March 2, 2007
REPUBLIC OF THE PHILIPPINES, represented by the DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS, COMMISSION ON AUDIT and THE
NATIONAL TREASURER, Petitioner,
vs.
CARLITO LACAP, doing business under the name and style CARWIN
CONSTRUCTION AND CONSTRUCTION SUPPLY, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the
Revised Rules of Court assailing the Decision1 dated April 28, 2003 of the
Court of Appeals (CA) in CA-G.R. CV No. 56345 which affirmed with
modification the Decision2 of the Regional Trial Court, Branch 41, San
Fernando, Pampanga (RTC) in Civil Case No. 10538, granting the complaint
for Specific Performance and Damages filed by Carlito Lacap (respondent)
against the Republic of the Philippines (petitioner).
The factual background of the case is as follows:
The District Engineer of Pampanga issued and duly published an "Invitation To
Bid" dated January 27, 1992. Respondent, doing business under the name and
style Carwin Construction and Construction Supply (Carwin Construction), was
pre-qualified together with two other contractors. Since respondent submitted
the lowest bid, he was awarded the contract for the concreting of Sitio 5 Bahay
Pare.3 On November 4, 1992, a Contract Agreement was executed by
respondent and petitioner.4 On September 25, 1992, District Engineer Rafael
S. Ponio issued a Notice to Proceed with the concreting of Sitio 5 Bahay Pare.5
Accordingly, respondent undertook the works, made advances for the purchase
of the materials and payment for labor costs.6
On October 29, 1992, personnel of the Office of the District Engineer of San
Fernando, Pampanga conducted a final inspection of the project and found it
100% completed in accordance with the approved plans and specifications.
Accordingly, the Office of the District Engineer issued Certificates of Final
Inspection and Final Acceptance.7
Thereafter, respondent sought to collect payment for the completed project.8
The DPWH prepared the Disbursement Voucher in favor of petitioner.9
However, the DPWH withheld payment from respondent after the District
Auditor of the Commission on Audit (COA) disapproved the final release of
funds on the ground that the contractor’s license of respondent had expired at
the time of the execution of the contract. The District Engineer sought the
opinion of the DPWH Legal Department on whether the contracts of Carwin
Construction for various Mount Pinatubo rehabilitation projects were valid and
effective although its contractor’s license had already expired when the projects
were contracted.10
In a Letter-Reply dated September 1, 1993, Cesar D. Mejia, Director III of the
DPWH Legal Department opined that since Republic Act No. 4566 (R.A. No.
4566), otherwise known as the Contractor’s License Law, does not provide that
a contract entered into after the license has expired is void and there is no law
which expressly prohibits or declares void such contract, the contract is
enforceable and payment may be paid, without prejudice to any appropriate
administrative liability action that may be imposed on the contractor and the
government officials or employees concerned.11
In a Letter dated July 4, 1994, the District Engineer requested clarification from
the DPWH Legal Department on whether Carwin Construction should be paid
for works accomplished despite an expired contractor’s license at the time the
contracts were executed.12
In a First Indorsement dated July 20, 1994, Cesar D. Mejia, Director III of the
Legal Department, recommended that payment should be made to Carwin
Construction, reiterating his earlier legal opinion.13 Despite such
recommendation for payment, no payment was made to respondent.
Thus, on July 3, 1995, respondent filed the complaint for Specific Performance
and Damages against petitioner before the RTC.14
On September 14, 1995, petitioner, through the Office of the Solicitor General
(OSG), filed a Motion to Dismiss the complaint on the grounds that the
complaint states no cause of action and that the RTC had no jurisdiction over
the nature of the action since respondent did not appeal to the COA the decision
of the District Auditor to disapprove the claim.15
Following the submission of respondent’s Opposition to Motion to Dismiss, 16
the RTC issued an Order dated March 11, 1996 denying the Motion to
Dismiss.17 The OSG filed a Motion for Reconsideration18 but it was likewise
denied by the RTC in its Order dated May 23, 1996.19
On August 5, 1996, the OSG filed its Answer invoking the defenses of non-
exhaustion of administrative remedies and the doctrine of non-suability of the
State.20
Following trial, the RTC rendered on February 19, 1997 its Decision, the
dispositive portion of which reads as follows:
WHEREFORE, in view of all the foregoing consideration, judgment is hereby
rendered in favor of the plaintiff and against the defendant, ordering the latter,
thru its District Engineer at Sindalan, San Fernando, Pampanga, to pay the
following:
a) ₱457,000.00 – representing the contract for the concreting project of Sitio 5
road, Bahay Pare, Candaba, Pampanga plus interest at 12% from demand until
fully paid; and
b) The costs of suit.
SO ORDERED
The RTC held that petitioner must be required to pay the contract price since it
has accepted the completed project and enjoyed the benefits thereof; to hold
otherwise would be to overrun the long standing and consistent pronouncement
against enriching oneself at the expense of another.22
Dissatisfied, petitioner filed an appeal with the CA.23 On April 28, 2003, the
CA rendered its Decision sustaining the Decision of the RTC. It held that since
the case involves the application of the principle of estoppel against the
government which is a purely legal question, then the principle of exhaustion
of administrative remedies does not apply; that by its actions the government is
estopped from questioning the validity and binding effect of the Contract
Agreement with the respondent; that denial of payment to respondent on purely
technical grounds after successful completion of the project is not countenanced
either by justice or equity.
The CA rendered herein the assailed Decision dated April 28, 2003, the
dispositive portion of which reads:
WHEREFORE, the decision of the lower court is hereby AFFIRMED with
modification in that the interest shall be six percent (6%) per annum computed
from June 21, 1995.
SO ORDERED
Hence, the present petition on the following ground:
THE COURT OF APPEALS ERRED IN NOT FINDING THAT
RESPONDENT HAS NO CAUSE OF ACTION AGAINST PETITIONER,
CONSIDERING THAT
(a) RESPONDENT FAILED TO EXHAUST ADMINISTRATIVE
REMEDIES; AND
(b) IT IS THE COMMISSION ON AUDIT WHICH HAS THE PRIMARY
JURISDICTION TO RESOLVE RESPONDENT’S MONEY CLAIM
AGAINST THE GOVERNMENT.25
Petitioner contends that respondent’s recourse to judicial action was premature
since the proper remedy was to appeal the District Auditor’s disapproval of
payment to the COA, pursuant to Section 48, Presidential Decree No. 1445
(P.D. No. 1445), otherwise known as the Government Auditing Code of the
Philippines; that the COA has primary jurisdiction to resolve respondent’s
money claim against the government under Section 2(1),26 Article IX of the
1987 Constitution and Section 2627 of P.D. No. 1445; that non-observance of
the doctrine of exhaustion of administrative remedies and the principle of
primary jurisdiction results in a lack of cause of action.
Respondent, on the other hand, in his Memorandum28 limited his discussion to
Civil Code provisions relating to human relations. He submits that equity
demands that he be paid for the work performed; otherwise, the mandate of the
Civil Code provisions relating to human relations would be rendered nugatory
if the State itself is allowed to ignore and circumvent the standard of behavior
it sets for its inhabitants.
The present petition is bereft of merit.
The general rule is that before a party may seek the intervention of the court, he
should first avail of all the means afforded him by administrative processes.29
The issues which administrative agencies are authorized to decide should not
be summarily taken from them and submitted to a court without first giving
such administrative agency the opportunity to dispose of the same after due
deliberation.30
Corollary to the doctrine of exhaustion of administrative remedies is the
doctrine of primary jurisdiction; that is, courts cannot or will not determine a
controversy involving a question which is within the jurisdiction of the
administrative tribunal prior to the resolution of that question by the
administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and
services of the administrative tribunal to determine technical and intricate
matters of fact.31
Nonetheless, the doctrine of exhaustion of administrative remedies and the
corollary doctrine of primary jurisdiction, which are based on sound public
policy and practical considerations, are not inflexible rules. There are many
accepted exceptions, such as: (a) where there is estoppel on the part of the party
invoking the doctrine; (b) where the challenged administrative act is patently
illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay
or official inaction that will irretrievably prejudice the complainant; (d) where
the amount involved is relatively small so as to make the rule impractical and
oppressive; (e) where the question involved is purely legal and will ultimately
have to be decided by the courts of justice;32 (f) where judicial intervention is
urgent; (g) when its application may cause great and irreparable damage; (h)
where the controverted acts violate due process; (i) when the issue of non-
exhaustion of administrative remedies has been rendered moot;33 (j) when there
is no other plain, speedy and adequate remedy; (k) when strong public interest
is involved; and, (l) in quo warranto proceedings.34 Exceptions (c) and (e) are
applicable to the present case.
Notwithstanding the legal opinions of the DPWH Legal Department rendered
in 1993 and 1994 that payment to a contractor with an expired contractor’s
license is proper, respondent remained unpaid for the completed work despite
repeated demands. Clearly, there was unreasonable delay and official inaction
to the great prejudice of respondent.
Furthermore, whether a contractor with an expired license at the time of the
execution of its contract is entitled to be paid for completed projects, clearly is
a pure question of law. It does not involve an examination of the probative value
of the evidence presented by the parties. There is a question of law when the
doubt or difference arises as to what the law is on a certain state of facts, and
not as to the truth or the falsehood of alleged facts.35 Said question at best could
be resolved only tentatively by the administrative authorities. The final decision
on the matter rests not with them but with the courts of justice. Exhaustion of
administrative remedies does not apply, because nothing of an administrative
nature is to be or can be done.36 The issue does not require technical knowledge
and experience but one that would involve the interpretation and application of
law.
which is the sway and dominance of justice."43 The rules thereon apply equally
well to the Government.44 Since respondent had rendered services to the full
satisfaction and acceptance by petitioner, then the former should be
compensated for them. To allow petitioner to acquire the finished project at no
cost would undoubtedly constitute unjust enrichment for the petitioner to the
prejudice of respondent. Such unjust enrichment is not allowed by law.

Thus, while it is undisputed that the District Auditor of the COA disapproved WHEREFORE, the present petition is DENIED for lack of merit. The assailed
respondent’s claim against the Government, and, under Section 4837 of P.D. Decision of the Court of Appeals dated April 28, 2003 in CA-G.R. CV No.
No. 1445, the administrative remedy available to respondent is an appeal of the 56345 is AFFIRMED. No pronouncement as to costs.
denial of his claim by the District Auditor to the COA itself, the Court holds
that, in view of exceptions (c) and (e) narrated above, the complaint for specific SO ORDERED.
performance and damages was not prematurely filed and within the jurisdiction
of the RTC to resolve, despite the failure to exhaust administrative remedies. MA. ALICIA AUSTRIA-MARTINEZ
As the Court aptly stated in Rocamora v. RTC-Cebu (Branch VIII):38
Associate Justice
The plaintiffs were not supposed to hold their breath and wait until the
WE CONCUR:
Commission on Audit and the Ministry of Public Highways had acted on the
claims for compensation for the lands appropriated by the government. The road CONSUELO YNARES-SANTIAGO
had been completed; the Pope had come and gone; but the plaintiffs had yet to
be paid for the properties taken from them. Given this official indifference, Associate Justice
which apparently would continue indefinitely, the private respondents had to
act to assert and protect their interests.39 Chairperson

On the question of whether a contractor with an expired license is entitled to be (On Leave)
paid for completed projects, Section 35 of R.A. No. 4566 explicitly provides:
ROMEO J. CALLEJO, SR.
SEC. 35. Penalties. Any contractor who, for a price, commission, fee or wage,
submits or attempts to submit a bid to construct, or contracts to or undertakes Associate Justice
to construct, or assumes charge in a supervisory capacity of a construction work
MINITA V. CHICO-NAZARIO
within the purview of this Act, without first securing a license to engage in the
business of contracting in this country; or who shall present or file the license Asscociate Justice
certificate of another, give false evidence of any kind to the Board, or any
member thereof in obtaining a certificate or license, impersonate another, or use ANTONIO EDUARDO B. NACHURA
an expired or revoked certificate or license, shall be deemed guilty of
misdemeanor, and shall, upon conviction, be sentenced to pay a fine of not less Associate Justice
than five hundred pesos but not more than five thousand pesos. (Emphasis
supplied) ATTESTATION

The "plain meaning rule" or verba legis in statutory construction is that if the I attest that the conclusions in the above Decision had been reached in
statute is clear, plain and free from ambiguity, it must be given its literal consultation before the case was assigned to the writer of the opinion of the
meaning and applied without interpretation.40 This rule derived from the Court’s Division.
maxim Index animi sermo est (speech is the index of intention) rests on the
CONSUELO YNARES-SANTIAGO
valid presumption that the words employed by the legislature in a statute
correctly express its intention or will and preclude the court from construing it Associate Justice
differently. The legislature is presumed to know the meaning of the words, to
have used words advisedly, and to have expressed its intent by use of such Chairperson, Third Division
words as are found in the statute.41 Verba legis non est recedendum, or from
the words of a statute there should be no departure.42 CERTIFICATION

The wordings of R.A. No. 4566 are clear. It does not declare, expressly or
impliedly, as void contracts entered into by a contractor whose license had
already expired. Nonetheless, such contractor is liable for payment of the fine
prescribed therein. Thus, respondent should be paid for the projects he
completed. Such payment, however, is without prejudice to the payment of the
fine prescribed under the law.
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson’s attestation, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
REYNATO S. PUNO

Besides, Article 22 of the Civil Code which embodies the maxim Nemo ex Chief Justice
alterius incommode debet lecupletari (no man ought to be made rich out of
another’s injury) states:

Art. 22. Every person who through an act of performance by another, or any
other means, acquires or comes into possession of something at the expense of
the latter without just or legal ground, shall return the same to him.

This article is part of the chapter of the Civil Code on Human Relations, the
provisions of which were formulated as "basic principles to be observed for the
rightful relationship between human beings and for the stability of the social
order, x x x designed to indicate certain norms that spring from the fountain of
good conscience, x x x guides human conduct [that] should run as golden
threads through society to the end that law may approach its supreme ideal
2nd
SECOND DIVISION
G.R. No. 137567 June 20, 2000
MEYNARDO L. BELTRAN, Petitioner, v. PEOPLE OF THE PHILIPPINES,
and HON. JUDGE FLORENTINO TUAZON, JR., being the Judge of the
RTC, Brach 139, Makati City, Respondents.
BUENA, J.:
This petition for review, filed under Rule 45 of the 1997 Rules of Civil
Procedure, seeks to review and set aside the Order dated January 28, 1999
issued by Judge Florentino A. Tuazon, Jr. of the Regional Trial Court of Makati
City, Branch 139 in Special Civil Case No. 98-3056, entitled "Meynardo
Beltran vs. People of the Philippines and Hon. Judge Alden Cervantes of the
Metropolitan Trial Court of Makati City, Branch 61." The said Order denied
petitioner's prayer for the issuance of a writ of preliminary injunction to enjoin
Judge Cervantes from proceeding with the trial of Criminal Case No. 236176,
a concubinage case against petitioner on the ground that the pending petition
for declaration of nullity of marriage filed by petitioner against his wife
constitutes a prejudicial question.
The antecedent facts of the case are undisputed:
Petitioner Meynardo Beltran and wife Charmaine E. Felix were married on June
16, 1973 at the Immaculate Concepcion Parish Church in Cubao, Quezon City.
On February 7, 1997, after twenty-four years of marriage and four
Children, 2 petitioner filed a petition for nullity of marriage on the ground of
psychological incapacity under Article 36 of the Family Code before Branch 87
of the Regional Trial Court of Quezon City. The case was docketed as Civil
Case No. Q-97-30192. 3
In her Answer to the said petition, petitioner's wife Charmaine Felix alleged that
it was petitioner who abandoned the conjugal home and lived with a certain
woman named Milagros Salting. 4 Charmaine subsequently filed a criminal
complaint for concubinage 5 under Article 334 of the Revised Penal Code
against petitioner and his paramour before the City Prosecutor's Office of
Makati who, in a Resolution dated September 16, 1997, found probable cause
and ordered the filing of an Information 6 against them. The case, docketed as
Criminal Case No. 236176, was filed before the Metropolitan Trial Court of
Makati City, Branch 61.
On March 20, 1998, petitioner, in order to forestall the issuance of a warrant for
his arrest, filed a Motion to Defer Proceedings Including the Issuance of the
Warrant of Arrest in the criminal case. Petitioner argued that the pendency of
the civil case for declaration of nullity of his marriage posed a prejudicial
question to the determination of the criminal case. Judge Alden Vasquez
Cervantes denied the foregoing motion in the Order 7 dated August 31, 1998.
Petitioner's motion for reconsideration of the said Order of denial was likewise
denied in an Order dated December 9, 1998.
In view of the denial of his motion to defer the proceedings in the concubinage
case, petitioner went to the Regional Trial Court of Makati City, Branch 139 on
certiorari, questioning the Orders dated August 31, 1998 and December 9, 1998
issued by Judge Cervantes and praying for the issuance of a writ of preliminary
injunction. 8 In an Order 9 dated January 28, 1999, the Regional Trial Court of
Makati denied the petition for certiorari. Said Court subsequently issued another
Order 10 dated February 23, 1999, denying his motion for reconsideration of
the dismissal of his petition.
Undaunted, petitioner filed the instant petition for review.
Petitioner contends that the pendency of the petition for declaration of nullity
of his marriage based on psychological incapacity under Article 36 of the
Family Code is a prejudicial question that should merit the suspension of the
criminal case for concubinage filed against him by his wife.
Petitioner also contends that there is a possibility that two conflicting decisions
might result from the civil case for annulment of marriage and the criminal case
for concubinage. In the civil case, the trial court might declare the marriage as
valid by dismissing petitioner's complaint but in the criminal case, the trial court
might acquit petitioner because the evidence shows that his marriage is void on
ground of psychological incapacity. Petitioner submits that the possible conflict
of the courts' ruling regarding petitioner's marriage can be avoided, if the
criminal case will be suspended, until the court rules on the validity of marriage;
that if petitioner's marriage is declared void by reason of psychological
incapacity then by reason of the arguments submitted in the subject petition, his
marriage has never existed; and that, accordingly, petitioner could not be
convicted in the criminal case because he was never before a married man.
Petitioner's contentions are untenable.
The rationale behind the principle of prejudicial question is to avoid two
conflicting decisions. It has two essential elements: (a) the civil action involves
an issue similar or intimately related to the issue raised in the criminal action;
and (b) the resolution of such issue determines whether or not the criminal
action may proceed. 11
The pendency of the case for declaration of nullity of petitioner's marriage is
not a prejudicial question to the concubinage case. For a civil case to be
considered prejudicial to a criminal action as to cause the suspension of the
latter pending the final determination of the civil case, it must appear not only
that the said civil case involves the same facts upon which the criminal
prosecution would be based, but also that in the resolution of the issue or issues
raised in the aforesaid civil action, the guilt or innocence of the accused would
necessarily be determined.
Art. 40 of the Family Code provides:
The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous
marriage void.
In Domingo vs. Court of Appeals, 12 this Court ruled that the import of said
provision is that for purposes of remarriage, the only legally acceptable basis
for declaring a previous marriage an absolute nullity is a final judgment
declaring such previous marriage void, whereas, for purposes of other than
remarriage, other evidence is acceptable. The pertinent portions of said
Decision read:
. . . Undoubtedly, one can conceive of other instances where a party might well
invoke the absolute nullity of a previous marriage for purposes other than
remarriage, such as in case of an action for liquidation, partition, distribution
and separation of property between the erstwhile spouses, as well as an action
for the custody and support of their common children and the delivery of the
latters' presumptive legitimes. In such cases, evidence needs must be adduced,
testimonial or documentary, to prove the existence of grounds rendering such a
previous marriage an absolute nullity. These needs not be limited solely to an
earlier final judgment of a court declaring such previous marriage void.
So that in a case for concubinage, the accused, like the herein petitioner need
not present a final judgment declaring his marriage void for he can adduce
evidence in the criminal case of the nullity of his marriage other than proof of
a final judgment declaring his marriage void.
With regard to petitioner's argument that he could be acquitted of the charge of
concubinage should his marriage be declared null and void, suffice it to state
that even a subsequent pronouncement that his marriage is void from the
beginning is not a defense.
Analogous to this case is that of Landicho vs. Relova 1 cited in Donato vs. Luna
14 where this Court held that:
. . . Assuming that the first marriage was null and void on the ground alleged by
petitioner, that fact would not be material to the outcome of the criminal case.
Parties to the marriage should not be permitted to judge for themselves its
nullity, for the same must be submitted to the judgment of the competent courts
and only when the nullity of the marriage is so declared can it be held as void,
and so long as there is no such declaration the presumption is that the marriage
exists. Therefore, he who contracts a second marriage before the judicial
declaration of nullity of the first marriage assumes the risk of being prosecuted
for bigamy.
Thus, in the case at bar it must also be held that parties to the marriage should
not be permitted to judge for themselves its nullity, for the same must be
submitted to the judgment of the competent courts and only when the nullity of
the marriage is so declared can it be held as void, and so long as there is no such
declaration the presumption is that the marriage exists for all intents and
purposes. Therefore, he who cohabits with a woman not his wife before the
judicial declaration of nullity of the marriage assumes the risk of being
prosecuted for concubinage. The lower court therefore, has not erred in
affirming the Orders of the judge of the Metropolitan Trial Court ruling that
pendency of a civil action for nullity of marriage does not pose a prejudicial
question in a criminal case for concubinage.
WHEREFORE, for lack of merit, the instant petition is DISMISSED.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and De Leon, JJ., concur.
3rd
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 26795 July 31, 1970
CARMEN QUIMIGUING, Suing through her parents, ANTONIO
QUIMIGUING and JACOBA CABILIN, plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.
Torcuato L. Galon for plaintiffs-appellants.
Godardo Jacinto for defendant-appellee.
REYES, J.B.L., J.:
Appeal on points of law from an order of the Court of First Instance of
Zamboanga del Norte (Judge Onofre Sison Abalos, presiding), in its Civil Case
No. 1590, dismissing a complaint for support and damages, and another order
denying amendment of the same pleading.
The events in the court of origin can be summarized as follows:
Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the
court below. In her complaint it was averred that the parties were neighbors in
Dapitan City, and had close and confidential relations; that defendant Icao,
although married, succeeded in having carnal intercourse with plaintiff several
times by force and intimidation, and without her consent; that as a result she
became pregnant, despite efforts and drugs supplied by defendant, and plaintiff
had to stop studying. Hence, she claimed support at P120.00 per month,
damages and attorney's fees.
Duly summoned, defendant Icao moved to dismiss for lack of cause of action
since the complaint did not allege that the child had been born; and after hearing
arguments, the trial judge sustained defendant's motion and dismissed the
complaint.
Thereafter, plaintiff moved to amend the complaint to allege that as a result of
the intercourse, plaintiff had later given birth to a baby girl; but the court,
sustaining defendant's objection, ruled that no amendment was allowable, since
the original complaint averred no cause of action. Wherefore, the plaintiff
appealed directly to this Court.
We find the appealed orders of the court below to be untenable. A conceived
child, although as yet unborn, is given by law a provisional personality of its
own for all purposes favorable to it, as explicitly provided in Article 40 of the
Civil Code of the Philippines. The unborn child, therefore, has a right to support
from its progenitors, particularly of the defendant-appellee (whose paternity is
deemed admitted for the purpose of the motion to dismiss), even if the said child
is only "en ventre de sa mere;" just as a conceived child, even if as yet unborn,
may receive donations as prescribed by Article 742 of the same Code, and its
being ignored by the parent in his testament may result in preterition of a forced
heir that annuls the institution of the testamentary heir, even if such child should
be born after the death of the testator Article 854, Civil Code).
ART. 742. Donations made to conceived and unborn children may be accepted
by those persons who would legally represent them if they were already born.
ART. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of 'representation.
It is thus clear that the lower court's theory that Article 291 of the Civil Code
declaring that support is an obligation of parents and illegitimate children "does
not contemplate support to children as yet unborn," violates Article 40
aforesaid, besides imposing a condition that nowhere appears in the text of
Article 291. It is true that Article 40 prescribing that "the conceived child shall
be considered born for all purposes that are favorable to it" adds further
"provided it be born later with the conditions specified in the following article"
(i.e., that the foetus be alive at the time it is completely delivered from the
mother's womb). This proviso, however, is not a condition precedent to the right
of the conceived child; for if it were, the first part of Article 40 would become
entirely useless and ineffective. Manresa, in his Commentaries (5th Ed.) to the
corresponding Article 29 of the Spanish Civil Code, clearly points this out:
Los derechos atribuidos al nasciturus no son simples expectativas, ni aun en el
sentido tecnico que la moderna doctrina da a esta figura juridica sino que
constituyen un caso de los propiamente Ilamados 'derechos en estado de
pendenci'; el nacimiento del sujeto en las condiciones previstas por el art. 30,
no determina el nacimiento de aquellos derechos (que ya existian de antemano),
sino que se trata de un hecho que tiene efectos declarativos. (1 Manresa, Op.
cit., page 271)
A second reason for reversing the orders appealed from is that for a married
man to force a woman not his wife to yield to his lust (as averred in the original
complaint in this case) constitutes a clear violation of the rights of his victim
that entitles her to claim compensation for the damage caused. Says Article 21
of the Civil Code of the Philippines:
ART. 21. Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.
The rule of Article 21 is supported by Article 2219 of the same Code:
ART 2219. Moral damages may be recovered in the following and analogous
cases:
(3) Seduction, abduction, rape or other lascivious acts:
xxx xxx xxx
(10) Acts and actions referred to in Articles 21, 26, 27, 28 ....
Thus, independently of the right to Support of the child she was carrying,
plaintiff herself had a cause of action for damages under the terms of the
complaint; and the order dismissing it for failure to state a cause of action was
doubly in error.
WHEREFORE, the orders under appeal are reversed and set aside. Let the case
be remanded to the court of origin for further proceedings conformable to this
decision. Costs against appellee Felix Icao. So ordered.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee,
Barredo and Villamor, JJ., concur.
4th
SECOND DIVISION
[G.R. NO. 166676, September 12, 2008]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. JENNIFER B.
CAGANDAHAN, Respondent.
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the Rules of Court raising purely
questions of law and seeking a reversal of the Decision1 dated January 12, 2005
of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which
granted the Petition for Correction of Entries in Birth Certificate filed by
Jennifer B. Cagandahan and ordered the following changes of entries in
Cagandahan's birth certificate: (1) the name "Jennifer Cagandahan" changed to
"Jeff Cagandahan" and (2) gender from "female" to "male."
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for
Correction of Entries in Birth Certificate2 before the RTC, Branch 33 of
Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and was
registered as a female in the Certificate of Live Birth but while growing up, she
developed secondary male characteristics and was diagnosed to have
Congenital Adrenal Hyperplasia (CAH) which is a condition where persons
thus afflicted possess both male and female characteristics. She further alleged
that she was diagnosed to have clitoral hyperthropy in her early years and at age
six, underwent an ultrasound where it was discovered that she has small ovaries.
At age thirteen, tests revealed that her ovarian structures had minimized, she
has stopped growing and she has no breast or menstrual development. She then
alleged that for all interests and appearances as well as in mind and emotion,
she has become a male person. Thus, she prayed that her birth certificate be
corrected such that her gender be changed from female to male and her first
name be changed from Jennifer to Jeff.
The petition was published in a newspaper of general circulation for three (3)
consecutive weeks and was posted in conspicuous places by the sheriff of the
court. The Solicitor General entered his appearance and authorized the Assistant
Provincial Prosecutor to appear in his behalf.
To prove her claim, respondent testified and presented the testimony of Dr.
Michael Sionzon of the Department of Psychiatry, University of the
Philippines-Philippine General Hospital. Dr. Sionzon issued a medical
certificate stating that respondent's condition is known as CAH. He explained
that genetically respondent is female but because her body secretes male
hormones, her female organs did not develop normally and she has two sex
organs - female and male. He testified that this condition is very rare, that
respondent's uterus is not fully developed because of lack of female hormones,
and that she has no monthly period. He further testified that respondent's
condition is permanent and recommended the change of gender because
respondent has made up her mind, adjusted to her chosen role as male, and the
gender change would be advantageous to her.
The RTC granted respondent's petition in a Decision dated January 12, 2005
which reads:
The Court is convinced that petitioner has satisfactorily shown that he is entitled
to the reliefs prayed [for]. Petitioner has adequately presented to the Court very
clear and convincing proofs for the granting of his petition. It was medically
proven that petitioner's body produces male hormones, and first his body as well
as his action and feelings are that of a male. He has chosen to be male. He is a
normal person and wants to be acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is
hereby ordered to make the following corrections in the birth [c]ertificate of
Jennifer Cagandahan upon payment of the prescribed fees:
a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN;
and
b) By changing the gender from female to MALE.
It is likewise ordered that petitioner's school records, voter's registry, baptismal
certificate, and other pertinent records are hereby amended to conform with the
foregoing corrected data.
SO ORDERED.3
Thus, this petition by the Office of the Solicitor General (OSG) seeking a
reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION
CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF
COURT HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW
CHANGE OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE,
WHILE RESPONDENT'S MEDICAL CONDITION, i.e., CONGENITAL
ADRENAL HYPERPLASIA DOES NOT MAKE HER A "MALE"4
Simply stated, the issue is whether the trial court erred in ordering the correction
of entries in the birth certificate of respondent to change her sex or gender, from
female to male, on the ground of her medical condition known as CAH, and her
name from "Jennifer" to "Jeff," under Rules 103 and 108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for non-
compliance with Rules 103 and 108 of the Rules of Court because while the
local civil registrar is an indispensable party in a petition for cancellation or
correction of entries under Section 3, Rule 108 of the Rules of Court,
respondent's petition before the court a quo did not implead the local civil
registrar.5 The OSG further contends respondent's petition is fatally defective
since it failed to state that respondent is a bona fide resident of the province
where the petition was filed for at least three (3) years prior to the date of such
filing as mandated under Section 2(b), Rule 103 of the Rules of Court.6 The
OSG argues that Rule 108 does not allow change of sex or gender in the birth
certificate and respondent's claimed medical condition known as CAH does not
make her a male.7
On the other hand, respondent counters that although the Local Civil Registrar
of Pakil, Laguna was not formally named a party in the Petition for Correction
of Birth Certificate, nonetheless the Local Civil Registrar was furnished a copy
of the Petition, the Order to publish on December 16, 2003 and all pleadings,
orders or processes in the course of the proceedings,8 respondent is actually a
male person and hence his birth certificate has to be corrected to reflect his true
sex/gender,9 change of sex or gender is allowed under Rule 108,10 and
respondent substantially complied with the requirements of Rules 103 and 108
of the Rules of Court.11
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
SECTION 1. Venue. - A person desiring to change his name shall present the
petition to the Regional Trial Court of the province in which he resides, [or, in
the City of Manila, to the Juvenile and Domestic Relations Court].
SEC. 2. Contents of petition. - A petition for change of name shall be signed
and verified by the person desiring his name changed, or some other person on
his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province where the
petition is filed for at least three (3) years prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.
SEC. 3. Order for hearing. - If the petition filed is sufficient in form and
substance, the court, by an order reciting the purpose of the petition, shall fix a
date and place for the hearing thereof, and shall direct that a copy of the order
be published before the hearing at least once a week for three (3) successive
weeks in some newspaper of general circulation published in the province, as
the court shall deem best. The date set for the hearing shall not be within thirty
(30) days prior to an election nor within four (4) months after the last
publication of the notice.
SEC. 4. Hearing. - Any interested person may appear at the hearing and oppose
the petition. The Solicitor General or the proper provincial or city fiscal shall
appear on behalf of the Government of the Republic.
SEC. 5. Judgment. - Upon satisfactory proof in open court on the date fixed in
the order that such order has been published as directed and that the allegations
of the petition are true, the court shall, if proper and reasonable cause appears
for changing the name of the petitioner, adjudge that such name be changed in
accordance with the prayer of the petition.
SEC. 6. Service of judgment. - Judgments or orders rendered in connection with
this rule shall be furnished the civil registrar of the municipality or city where
the court issuing the same is situated, who shall forthwith enter the same in the
civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. - Any person interested in any act, event,
order or decree concerning the civil status of persons which has been recorded
in the civil register, may file a verified petition for the cancellation or correction
of any entry relating thereto, with the Regional Trial Court of the province
where the corresponding civil registry is located.
SEC. 2. Entries subject to cancellation or correction. - Upon good and valid
grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages void
from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or recovery of citizenship;
(l) civil interdiction; (m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of name.
SEC. 3. Parties. - When cancellation or correction of an entry in the civil register
is sought, the civil registrar and all persons who have or claim any interest which
would be affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and publication. - Upon the filing of the petition, the court shall,
by an order, fix the time and place for the hearing of the same, and cause
reasonable notice thereof to be given to the persons named in the petition. The
court shall also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province.
SEC. 5. Opposition. - The civil registrar and any person having or claiming any
interest under the entry whose cancellation or correction is sought may, within
fifteen (15) days from notice of the petition, or from the last date of publication
of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. - The court in which the proceedings is
brought may make orders expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights of the parties pending
such proceedings.
SEC. 7. Order. - After hearing, the court may either dismiss the petition or issue
an order granting the cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon the civil registrar concerned
who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-compliance
with Rules 103 and 108 of the Rules of Court because respondent's petition did
not implead the local civil registrar. Section 3, Rule 108 provides that the civil
registrar and all persons who have or claim any interest which would be affected
thereby shall be made parties to the proceedings. Likewise, the local civil
registrar is required to be made a party in a proceeding for the correction of
name in the civil registry. He is an indispensable party without whom no final
determination of the case can be had.12 Unless all possible indispensable parties
were duly notified of the proceedings, the same shall be considered as falling
much too short of the requirements of the rules.13 The corresponding petition
should also implead as respondents the civil registrar and all other persons who
may have or may claim to have any interest that would be affected thereby.14
Respondent, however, invokes Section 6,15 Rule 1 of the Rules of Court which
states that courts shall construe the Rules liberally to promote their objectives
of securing to the parties a just, speedy and inexpensive disposition of the
matters brought before it. We agree that there is substantial compliance with
Rule 108 when respondent furnished a copy of the petition to the local civil
registrar.
The determination of a person's sex appearing in his birth certificate is a legal
issue and the court must look to the statutes. In this connection, Article 412 of
the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected without a
judicial order.
Together with Article 37616 of the Civil Code, this provision was amended by
Republic Act No. 904817 in so far as clerical or typographical errors are
involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect,
Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors. Rule 108 now applies only to substantial changes
and corrections in entries in the civil register.18
Under Rep. Act No. 9048, a correction in the civil registry involving the change
of sex is not a mere clerical or typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the Rules of Court.19
The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of
the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of
marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil
Code include even those that occur after birth.20
Respondent undisputedly has CAH. This condition causes the early or
"inappropriate" appearance of male characteristics. A person, like respondent,
with this condition produces too much androgen, a male hormone. A newborn
who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris
with the urethral opening at the base, an ambiguous genitalia often appearing
more male than female; (2) normal internal structures of the female
reproductive tract such as the ovaries, uterus and fallopian tubes; as the child
grows older, some features start to appear male, such as deepening of the voice,
facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000
children are born with CAH.
CAH is one of many conditions21 that involve intersex anatomy. During the
twentieth century, medicine adopted the term "intersexuality" to apply to human
beings who cannot be classified as either male or female.22 The term is now of
widespread use. According to Wikipedia, intersexuality "is the state of a living
thing of a gonochoristic species whose sex chromosomes, genitalia, and/or
secondary sex characteristics are determined to be neither exclusively male nor
female. An organism with intersex may have biological characteristics of both
male and female sexes."
Intersex individuals are treated in different ways by different cultures. In most
societies, intersex individuals have been expected to conform to either a male
or female gender role.23 Since the rise of modern medical science in Western
societies, some intersex people with ambiguous external genitalia have had their
genitalia surgically modified to resemble either male or female genitals.24
More commonly, an intersex individual is considered as suffering from a
"disorder" which is almost always recommended to be treated, whether by
surgery and/or by taking lifetime medication in order to mold the individual as
neatly as possible into the category of either male or female.
In deciding this case, we consider the compassionate calls for recognition of the
various degrees of intersex as variations which should not be subject to outright
denial. "It has been suggested that there is some middle ground between the
sexes, a `no-man's land' for those individuals who are neither truly `male' nor
truly `female'"25 The current state of Philippine statutes apparently compels
that a person be classified either as a male or as a female, but this Court is not
controlled by mere appearances when nature itself fundamentally negates such
rigid classification.
In the instant case, if we determine respondent to be a female, then there is no
basis for a change in the birth certificate entry for gender. But if we determine,
based on medical testimony and scientific development showing the respondent
to be other than female, then a change in the
subject's birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither consistently and
categorically female nor consistently and categorically male) composition.
Respondent has female (XX) chromosomes. However, respondent's body
system naturally produces high levels of male hormones (androgen). As a result,
respondent has ambiguous genitalia and the phenotypic features of a male.
Ultimately, we are of the view that where the person is biologically or naturally
intersex the determining factor in his gender classification would be what the
individual, like respondent, having reached the age of majority, with good
reason thinks of his/her sex. Respondent here thinks of himself as a male and
considering that his body produces high levels of male hormones (androgen)
there is preponderant biological support for considering him as being male.
Sexual development in cases of intersex persons makes the gender classification
at birth inconclusive. It is at maturity that the gender of such persons, like
respondent, is fixed.
Respondent here has simply let nature take its course and has not taken
unnatural steps to arrest or interfere with what he was born with. And
accordingly, he has already ordered his life to that of a male. Respondent could
have undergone treatment and taken steps, like taking lifelong medication,26 to
force his body into the categorical mold of a female but he did not. He chose
not to do so. Nature has instead taken its due course in respondent's
development to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on respondent
concerning a matter so innately private as one's sexuality and lifestyle
preferences, much less on whether or not to undergo medical treatment to
reverse the male tendency due to CAH. The Court will not consider respondent
as having erred in not choosing to undergo treatment in order to become or
remain as a female. Neither will the Court force respondent to undergo
treatment and to take medication in order to fit the mold of a female, as society
commonly currently knows this gender of the human species. Respondent is the
one who has to live with his intersex anatomy. To him belongs the human right
to the pursuit of happiness and of health. Thus, to him should belong the
primordial choice of what courses of action to take along the path of his sexual
development and maturation. In the absence of evidence that respondent is an
"incompetent">27 and in the absence of evidence to show that classifying
respondent as a male will harm other members of society who are equally
entitled to protection under the law, the Court affirms as valid and justified the
respondent's position and his personal judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of nature; and
(2) how an individual deals with what nature has handed out. In other words,
we respect respondent's congenital condition and his mature decision to be a
male. Life is already difficult for the ordinary person. We cannot but respect
how respondent deals with his unordinary state and thus help make his life
easier, considering the unique circumstances in this case.
As for respondent's change of name under Rule 103, this Court has held that a
change of name is not a matter of right but of judicial discretion, to be exercised
in the light of the reasons adduced and the consequences that will follow.28 The
trial court's grant of respondent's change of name from Jennifer to Jeff implies
a change of a feminine name to a masculine name. Considering the consequence
that respondent's change of name merely recognizes his preferred gender, we
find merit in respondent's change of name. Such a change will conform with the
change of the entry in his birth certificate from female to male.
WHEREFORE, the Republic's petition is DENIED. The Decision dated January
12, 2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna, is
AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr., and Brion, JJ., concur.
5th
Republic of the Philippines
SUPREME COURT
FIRST DIVISION
G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.
DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where one party is later
naturalized as a foreign citizen and obtains a valid divorce decree capacitating
him or her to remarry, can the Filipino spouse likewise remarry under Philippine
law?
Before us is a case of first impression that behooves the Court to make a definite
ruling on this apparently novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision1 dated May
15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch
23 and its Resolution2 dated July 4, 2002 denying the motion for
reconsideration. The court a quo had declared that herein respondent Cipriano
Orbecido III is capacitated to remarry. The fallo of the impugned Decision
reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of
the Family Code and by reason of the divorce decree obtained against him by
his American wife, the petitioner is given the capacity to remarry under the
Philippine Law.
IT IS SO ORDERED.
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at
the United Church of Christ in the Philippines in Lam-an, Ozamis City.
Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V.
Orbecido and Lady Kimberly V. Orbecido.
In 1986, Cipriano’s wife left for the United States bringing along their son
Kristoffer. A few years later, Cipriano discovered that his wife had been
naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a
divorce decree and then married a certain Innocent Stanley. She, Stanley and
her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel,
California.
Cipriano thereafter filed with the trial court a petition for authority to remarry
invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed.
Finding merit in the petition, the court granted the same. The Republic, herein
petitioner, through the Office of the Solicitor General (OSG), sought
reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE
26 OF THE FAMILY CODE4
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not
applicable to the instant case because it only applies to a valid mixed marriage;
that is, a marriage celebrated between a Filipino citizen and an alien. The proper
remedy, according to the OSG, is to file a petition for annulment or for legal
separation.5 furthermore, the OSG argues there is no law that governs
respondent’s situation. The OSG posits that this is a matter of legislation and
not of judicial determination.6
For his part, respondent admits that Article 26 is not directly applicable to his
case but insists that when his naturalized alien wife obtained a divorce decree
which capacitated her to remarry, he is likewise capacitated by operation of law
pursuant to Section 12, Article II of the Constitution.7
At the outset, we note that the petition for authority to remarry filed before the
trial court actually constituted a petition for declaratory relief. In this
connection, Section 1, Rule 63 of the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petition—Any person interested under a deed, will,
contract or other written instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or other governmental regulation may,
before breach or violation thereof, bring an action in the appropriate Regional
Trial Court to determine any question of construction or validity arising, and
for a declaration of his rights or duties, thereunder.
The requisites of a petition for declaratory relief are: (1) there must be a
justiciable controversy; (2) the controversy must be between persons whose
interests are adverse; (3) that the party seeking the relief has a legal interest in
the controversy; and (4) that the issue is ripe for judicial determination.8
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage
between two Filipino citizens where one later acquired alien citizenship,
obtained a divorce decree, and remarried while in the U.S.A. The interests of
the parties are also adverse, as petitioner representing the State asserts its duty
to protect the institution of marriage while respondent, a private citizen, insists
on a declaration of his capacity to remarry. Respondent, praying for relief, has
legal interest in the controversy. The issue raised is also ripe for judicial
determination inasmuch as when respondent remarries, litigation ensues and
puts into question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the
Family Code apply to the case of respondent? Necessarily, we must dwell on
how this provision had come about in the first place, and what was the intent of
the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive
Order No. 209, otherwise known as the "Family Code," which took effect on
August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the laws
in force in the country where they were solemnized, and valid there as such,
shall also be valid in this country, except those prohibited under Articles 35, 37,
and 38.
On July 17, 1987, shortly after the signing of the original Family Code,
Executive Order No. 227 was likewise signed into law, amending Articles 26,
36, and 39 of the Family Code. A second paragraph was added to Article 26.
As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with
the laws in force in the country where they were solemnized, and valid there as
such, shall also be valid in this country, except those prohibited under Articles
35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern the situation
presented by the case at hand. It seems to apply only to cases where at the time
of the celebration of the marriage, the parties are a Filipino citizen and a
foreigner. The instant case is one where at the time the marriage was
solemnized, the parties were two Filipino citizens, but later on, the wife was
naturalized as an American citizen and subsequently obtained a divorce
granting her capacity to remarry, and indeed she remarried an American citizen
while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings9 on the Family Code, the
Catholic Bishops’ Conference of the Philippines (CBCP) registered the
following objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are
Filipinos who divorce them abroad. These spouses who are divorced will not
be able to re-marry, while the spouses of foreigners who validly divorce them
abroad can.
2. This is the beginning of the recognition of the validity of divorce even for
Filipino citizens. For those whose foreign spouses validly divorce them abroad
will also be considered to be validly divorced here and can re-marry. We
propose that this be deleted and made into law only after more widespread
consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the
intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a
member of the Civil Code Revision Committee, is to avoid the absurd situation
where the Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van
Dorn v. Romillo, Jr.10 The Van Dorn case involved a marriage between a
Filipino citizen and a foreigner. The Court held therein that a divorce decree
validly obtained by the alien spouse is valid in the Philippines, and
consequently, the Filipino spouse is capacitated to remarry under Philippine
law.
Does the same principle apply to a case where at the time of the celebration of
the marriage, the parties were Filipino citizens, but later on, one of them obtains
a foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of
Appeals.11 In Quita, the parties were, as in this case, Filipino citizens when
they got married. The wife became a naturalized American citizen in 1954 and
obtained a divorce in the same year. The Court therein hinted, by way of obiter
dictum, that a Filipino divorced by his naturalized foreign spouse is no longer
married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of
reason, we hold that Paragraph 2 of Article 26 should be interpreted to include
cases involving parties who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized as a foreign
citizen and obtains a divorce decree. The Filipino spouse should likewise be
allowed to remarry as if the other party were a foreigner at the time of the
solemnization of the marriage. To rule otherwise would be to sanction absurdity
and injustice. Where the interpretation of a statute according to its exact and
literal import would lead to mischievous results or contravene the clear purpose
of the legislature, it should be construed according to its spirit and reason,
disregarding as far as necessary the letter of the law. A statute may therefore be
extended to cases not within the literal meaning of its terms, so long as they
come within its spirit or intent.12
If we are to give meaning to the legislative intent to avoid the absurd situation
where the Filipino spouse remains married to the alien spouse who, after
obtaining a divorce is no longer married to the Filipino spouse, then the instant
case must be deemed as coming within the contemplation of Paragraph 2 of
Article 26.
In view of the foregoing, we state the twin elements for the application of
Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated between a Filipino citizen
and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or
her to remarry.
The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is
obtained abroad by the alien spouse capacitating the latter to remarry.
In this case, when Cipriano’s wife was naturalized as an American citizen, there
was still a valid marriage that has been celebrated between her and Cipriano.
As fate would have it, the naturalized alien wife subsequently obtained a valid
divorce capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this case. Thus
Cipriano, the "divorced" Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSG’s theory that the proper remedy of the
Filipino spouse is to file either a petition for annulment or a petition for legal
separation. Annulment would be a long and tedious process, and in this
particular case, not even feasible, considering that the marriage of the parties
appears to have all the badges of validity. On the other hand, legal separation
would not be a sufficient remedy for it would not sever the marriage tie; hence,
the legally separated Filipino spouse would still remain married to the
naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly
submitted by respondent concerning the divorce decree and the naturalization
of respondent’s wife. It is settled rule that one who alleges a fact has the burden
of proving it and mere allegation is not evidence.13
Accordingly, for his plea to prosper, respondent herein must prove his
allegation that his wife was naturalized as an American citizen. Likewise,
before a foreign divorce decree can be recognized by our own courts, the party
pleading it must prove the divorce as a fact and demonstrate its conformity to
the foreign law allowing it.14 Such foreign law must also be proved as our
courts cannot take judicial notice of foreign laws. Like any other fact, such laws
must be alleged and proved.15 Furthermore, respondent must also show that the
divorce decree allows his former wife to remarry as specifically required in
Article 26. Otherwise, there would be no evidence sufficient to declare that he
is capacitated to enter into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26
of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be
interpreted to allow a Filipino citizen, who has been divorced by a spouse who
had acquired foreign citizenship and remarried, also to remarry. However,
considering that in the present petition there is no sufficient evidence submitted
and on record, we are unable to declare, based on respondent’s bare allegations
that his wife, who was naturalized as an American citizen, had obtained a
divorce decree and had remarried an American, that respondent is now
capacitated to remarry. Such declaration could only be made properly upon
respondent’s submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines is
GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated
July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur,
Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
WE CONCUR:
HILARIO G. DAVIDE, JR.
Chief Justice
Chairman
CONSUELO YNARES-SANTIAGO, ANTONIO T. CARPIO
Associate Justice Associate Justice
ADOLFO S. AZCUNA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court’s Division.
HILARIO G. DAVIDE, JR.
Chief Justice
6th
SECOND DIVISION
G.R. No. 119190 January 16, 1997
CHI MING TSOI, Petitioner, v. 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 1 its decision are as follows:
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.
On appeal, the Court of Appeals affirmed the trial court's decision.
Hence, the instant petition.
Petitioner alleges that the respondent Court of Appeals erred:
I
in affirming the conclusions of the lower court that there was no sexual
intercourse between the parties without making any findings of fact.
II
in holding that the refusal of private respondent to have sexual communion with
petitioner is a psychological incapacity inasmuch as proof thereof is totally
absent.
III
in holding that the alleged refusal of both the petitioner and the private
respondent to have sex with each other constitutes psychological incapacity of
both.
IV
in affirming the annulment of the marriage between the parties decreed by the
lower court without fully satisfying itself that there was no collusion between
them.
We find the petition to be bereft of merit.
Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private
respondent has the burden of proving the allegations in her complaint; that since
there was no independent evidence to prove the alleged non-coitus between the
parties, there remains no other basis for the court's conclusion except the
admission of petitioner; that public policy should aid acts intended to validate
marriage and should retard acts intended to invalidate them; that the conclusion
drawn by the trial court on the admissions and confessions of the parties in their
pleadings and in the course of the trial is misplaced since it could have been a
product of collusion; and that in actions for annulment of marriage, the material
facts alleged in the complaint shall always be proved.
Section 1, Rule 19 of the Rules of Court reads:
Section 1. Judgment on the pleadings. - Where an answer fails to tender an issue,
or otherwise admits the material allegations of the adverse party's pleading, the
court may, on motion of that party, direct judgment on such pleading. But in
actions for annulment of marriage or for legal separation the material facts
alleged in the complaint shall always be proved.
The foregoing provision pertains to a judgment on the pleadings. What said
provision seeks to prevent is annulment of marriage without trial. The assailed
decision was not based on such a judgment on the pleadings. When private
respondent testified under oath before the trial court and was cross-examined
by oath before the trial court and was cross-examined by the adverse party, she
thereby presented evidence in form of a testimony. After such evidence was
presented, it became incumbent upon petitioner to present his side. He admitted
that since their marriage on May 22, 1988, until their separation on March 15,
1989, there was no sexual intercourse between them.
To prevent collusion between the parties is the reason why, as stated by the
petitioner, the Civil Code provides that no judgment annulling a marriage shall
be promulgated upon a stipulation of facts or by confession of judgment (Arts.
88 and 101[par. 2]) and the Rules of Court prohibit such annulment without trial
(Sec. 1, Rule 19).
The case has reached this Court because petitioner does not want their marriage
to be annulled. This only shows that there is no collusion between the parties.
When petitioner admitted that he and his wife (private respondent) have never
had sexual contact with each other, he must have been only telling the truth. We
are reproducing the relevant portion of the challenged resolution denying
petitioner's Motion for Reconsideration, penned with magisterial lucidity by
Associate Justice Minerva Gonzaga-Reyes, viz:
The judgment of the trial court which was affirmed by this Court is not based
on a stipulation of facts. The issue of whether or not the appellant is
psychologically incapacitated to discharge a basic marital obligation was
resolved upon a review of both the documentary and testimonial evidence on
record. Appellant admitted that he did not have sexual relations with his wife
after almost ten months of cohabitation, and it appears that he is not suffering
from any physical disability. Such abnormal reluctance or unwillingness to
consummate his marriage is strongly indicative of a serious personality disorder
which to the mind of this Court clearly demonstrates an 'utter insensitivity or
inability to give meaning and significance to the marriage' within the meaning
of Article 36 of the Family Code (See Santos vs. Court of Appeals, G.R. No.
112019, January 4, 1995). 4
Petitioner further contends that respondent court erred in holding that the
alleged refusal of both the petitioner and the private respondent to have sex with
each other constitutes psychological incapacity of both. He points out as error
the failure of the trial court to make "a categorical finding about the alleged
psychological incapacity and an in-depth analysis of the reasons for such refusal
which may not be necessarily due to physchological disorders" because there
might have been other reasons, - i.e., physical disorders, such as aches, pains or
other discomforts, - why private respondent would not want to have sexual
intercourse from May 22, 1988 to March 15, 1989, in a short span of 10 months.
First, it must be stated that neither the trial court nor the respondent court made
a finding on who between petitioner and private respondent refuses to have
sexual contact with the other. The fact remains, however, that there has never
been coitus between them. At any rate, since the action to declare the marriage
void may be filed by either party, i.e., even the psychologically incapacitated,
the question of who refuses to have sex with the other becomes immaterial.
Petitioner claims that there is no independent evidence on record to show that
any of the parties is suffering from phychological incapacity. Petitioner also
claims that he wanted to have sex with private respondent; that the reason for
private respondent's refusal may not be psychological but physical disorder as
stated above.
We do not agree. Assuming it to be so, petitioner could have discussed with
private respondent or asked her what is ailing her, and why she balks and avoids
him everytime he wanted to have sexual intercourse with her. He never did. At
least, there is nothing in the record to show that he had tried to find out or
discover what the problem with his wife could be. What he presented in
evidence is his doctor's Medical Report that there is no evidence of his
impotency and he is capable of erection. 5 Since it is petitioner's claim that the
reason is not psychological but perhaps physical disorder on the part of private
respondent, it became incumbent upon him to prove such a claim.
If a spouse, although physically capable but simply refuses to perform his or
her essential marriage obligations, and the refusal is senseless and constant,
Catholic marriage tribunals attribute the causes to psychological incapacity than
to stubborn refusal. Senseless and protracted refusal is equivalent to
psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual
intercourse with his or her spouse is considered a sign of psychological
incapacity.
Evidently, one of the essential marital obligations under the Family Code is "To
procreate children based on the universal principle that procreation of children
through sexual cooperation is the basic end of marriage." Constant non-
fulfillment of this obligation will finally destroy the integrity or wholeness of
the marriage. In the case at bar, the senseless and protracted refusal of one of
the parties to fulfill the above marital obligation is equivalent to psychological
incapacity.
As aptly stated by the respondent court,
An examination of the evidence convinces Us that the husband's plea that the
wife did not want carnal intercourse with him does not inspire belief. Since he
was not physically impotent, but he refrained from sexual intercourse during
the entire time (from May 22, 1988 to March 15, 1989) that he occupied the
same bed with his wife, purely out of symphaty for her feelings, he deserves to
be doubted for not having asserted his right seven though she balked (Tompkins
vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if
it were true that it is the wife was suffering from incapacity, the fact that
defendant did not go to court and seek the declaration of nullity weakens his
claim. This case was instituted by the wife whose normal expectations of her
marriage were frustrated by her husband's inadequacy. Considering the innate
modesty of the Filipino woman, it is hard to believe that she would expose her
private life to public scrutiny and fabricate testimony against her husband if it
were not necessary to put her life in order and put to rest her marital status.
We are not impressed by defendant's claim that what the evidence proved is the
unwillingness or lack of intention to perform the sexual act, which is not
phychological incapacity, and which can be achieved "through proper
motivation." After almost ten months of cohabitation, the admission that the
husband is reluctant or unwilling to perform the sexual act with his wife whom
he professes to love very dearly, and who has not posed any insurmountable
resistance to his alleged approaches, is indicative of a hopeless situation, and of
a serious personality disorder that constitutes psychological incapacity to
discharge the basic marital covenants within the contemplation of the Family
Code.
While the law provides that the husband and the wife are obliged to live
together, observe mutual love, respect and fidelity (Art. 68, Family Code), the
sanction therefor is actually the "spontaneous, mutual affection between
husband and wife and not any legal mandate or court order" (Cuaderno vs.
Cuaderno 120 Phil. 1298). Love is useless unless it is shared with another.
Indeed, no man is an island, the cruelest act of a partner in marriage is to say "I
could not have cared less." This is so because an ungiven self is an unfulfilled
self. The egoist has nothing but himself. In the natural order, it is sexual
intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift
and a participation in the mystery of creation. It is a function which enlivens the
hope of procreation and ensures the continuation of family relations.
It appears that there is absence of empathy between petitioner and private
respondent. That is - a shared feeling which between husband and wife must be
experienced not only by having spontaneous sexual intimacy but a deep sense
of spiritual communion. Marital union is a two-way process. An expressive
interest in each other's feelings at a time it is needed by the other can go a long
way in deepening the marital relationship. Marriage is definitely not for children
but for two consenting adults who view the relationship with love amor gignit
amorem, respect, sacrifice and a continuing commitment to compromise,
conscious of its value as a sublime social institution.
This Court, finding the gravity of the failed relationship in which the parties
found themselves trapped in its mire of unfulfilled vows and unconsummated
marital obligations, can do no less but sustain the studied judgment of
respondent app
IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the
Court of Appeals dated November 29, 1994 is hereby AFFIRMED in all
respects and the petition is hereby DENIED for lack of merit.
SO ORDERED.
Regalado, Romero, Puno and Mendoza, JJ., concur.
7th
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 88694 January 11, 1993
ALBENSON ENTERPRISES CORP., JESSE YAP, AND BENJAMIN
MENDIONA, petitioners,
vs.
THE COURT OF APPEALS AND EUGENIO S. BALTAO, respondents.
Puruganan, Chato, Chato & Tan for petitioners.
Lino M. Patajo, Francisco Ma. Chanco, Ananiano Desierto and Segundo
Mangohig for private respondent.
BIDIN, J.:
This petition assails the decision of respondent Court of Appeals in
CA-GR CV No. 14948 entitled "Eugenio S. Baltao, plaintiff-appellee vs.
Albenson Enterprises Corporation, et al, defendants-appellants", which
modified the judgment of the Regional Trial Court of Quezon City, Branch
XCVIII in Civil Case No. Q-40920 and ordered petitioner to pay private
respondent, among others, the sum of P500,000.00 as moral damages and
attorney's fees in the amount of P50,000.00.
The facts are not disputed.
In September, October, and November 1980, petitioner Albenson Enterprises
Corporation (Albenson for short) delivered to Guaranteed Industries, Inc.
(Guaranteed for short) located at 3267 V. Mapa Street, Sta. Mesa, Manila, the
mild steel plates which the latter ordered. As part payment thereof, Albenson
was given Pacific Banking Corporation Check No. 136361 in the amount of
P2,575.00 and drawn against the account of E.L. Woodworks (Rollo, p. 148).
When presented for payment, the check was dishonored for the reason "Account
Closed." Thereafter, petitioner Albenson, through counsel, traced the origin of
the dishonored check. From the records of the Securities and Exchange
Commission (SEC), Albenson discovered that the president of Guaranteed, the
recipient of the unpaid mild steel plates, was one "Eugenio S. Baltao." Upon
further inquiry, Albenson was informed by the Ministry of Trade and Industry
that E.L. Woodworks, a single proprietorship business, was registered in the
name of one "Eugenio Baltao". In addition, upon verification with the drawee
bank, Pacific Banking Corporation, Albenson was advised that the signature
appearing on the subject check belonged to one "Eugenio Baltao."
After obtaining the foregoing information, Albenson, through counsel, made an
extrajudicial demand upon private respondent Eugenio S. Baltao, president of
Guaranteed, to replace and/or make good the dishonored check.
Respondent Baltao, through counsel, denied that he issued the check, or that the
signature appearing thereon is his. He further alleged that Guaranteed was a
defunct entity and hence, could not have transacted business with Albenson.
On February 14, 1983, Albenson filed with the Office of the Provincial Fiscal
of Rizal a complaint against Eugenio S. Baltao for violation of Batas Pambansa
Bilang 22. Submitted to support said charges was an affidavit of petitioner
Benjamin Mendiona, an employee of Albenson. In said affidavit, the above-
mentioned circumstances were stated.
It appears, however, that private respondent has a namesake, his son Eugenio
Baltao III, who manages a business establishment, E.L. Woodworks, on the
ground floor of the Baltao Building, 3267 V. Mapa Street, Sta. Mesa, Manila,
the very same business address of Guaranteed.
On September 5, 1983, Assistant Fiscal Ricardo Sumaway filed an information
against Eugenio S. Baltao for Violation of Batas Pambansa Bilang 22. In filing
said information, Fiscal Sumaway claimed that he had given Eugenio S. Baltao
opportunity to submit controverting evidence, but the latter failed to do so and
therefore, was deemed to have waived his right.
Respondent Baltao, claiming ignorance of the complaint against him,
immediately filed with the Provincial Fiscal of Rizal a motion for
reinvestigation, alleging that it was not true that he had been given an
opportunity to be heard in the preliminary investigation conducted by Fiscal
Sumaway, and that he never had any dealings with Albenson or Benjamin
Mendiona, consequently, the check for which he has been accused of having
issued without funds was not issued by him and the signature in said check was
not his.
On January 30, 1984, Provincial Fiscal Mauro M. Castro of Rizal reversed the
finding of Fiscal Sumaway and exonerated respondent Baltao. He also
instructed the Trial Fiscal to move for dismissal of the information filed against
Eugenio S. Baltao. Fiscal Castro found that the signature in PBC Check No.
136361 is not the signature of Eugenio S. Baltao. He also found that there is no
showing in the records of the preliminary investigation that Eugenio S. Baltao
actually received notice of the said investigation. Fiscal Castro then castigated
Fiscal Sumaway for failing to exercise care and prudence in the performance of
his duties, thereby causing injustice to respondent who was not properly notified
of the complaint against him and of the requirement to submit his counter
evidence.
Because of the alleged unjust filing of a criminal case against him for allegedly
issuing a check which bounced in violation of Batas Pambansa Bilang 22 for a
measly amount of P2,575.00, respondent Baltao filed before the Regional Trial
Court of Quezon City a complaint for damages against herein petitioners
Albenson Enterprises, Jesse Yap, its owner, and Benjamin Mendiona, its
employee.
In its decision, the lower court observed that "the check is drawn against the
account of "E.L. Woodworks," not of Guaranteed Industries of which plaintiff
used to be President. Guaranteed Industries had been inactive and had ceased
to exist as a corporation since 1975. . . . . The possibility is that it was with Gene
Baltao or Eugenio Baltao III, a son of plaintiff who had a business on the ground
floor of Baltao Building located on V. Mapa Street, that the defendants may
have been dealing with . . . ." (Rollo, pp. 41-42).
The dispositive portion of the trial court 's decision reads:
WHEREFORE, judgment is hereby rendered in favor of plaintiff and against
defendants ordering the latter to pay plaintiff jointly and severally:
1. actual or compensatory damages of P133,350.00;
2. moral damages of P1,000,000.00 (1 million pesos);
3. exemplary damages of P200,000.00;
4. attorney's fees of P100,000.00;
5 costs.
Defendants' counterclaim against plaintiff and claim for damages against
Mercantile Insurance Co. on the bond for the issuance of the writ of attachment
at the instance of plaintiff are hereby dismissed for lack of merit. (Rollo, pp. 38-
39).
On appeal, respondent court modified the trial court's decision as follows:
WHEREFORE, the decision appealed from is MODIFIED by reducing the
moral damages awarded therein from P1,000,000.00 to P500,000.00 and the
attorney's fees from P100,000.00 to P50,000.00, said decision being hereby
affirmed in all its other aspects. With costs against appellants. (Rollo, pp. 50-
51)
Dissatisfied with the above ruling, petitioners Albenson Enterprises Corp.,
Jesse Yap, and Benjamin Mendiona filed the instant Petition, alleging that the
appellate court erred in:
1. Concluding that private respondent's cause of action is not one based on
malicious prosecution but one for abuse of rights under Article 21 of the Civil
Code notwithstanding the fact that the basis of a civil action for malicious
prosecution is Article 2219 in relation to Article 21 or Article 2176 of the Civil
Code . . . .
2. Concluding that "hitting at and in effect maligning (private respondent) with
an unjust criminal case was, without more, a plain case of abuse of rights by
misdirection" and "was therefore, actionable by itself," and which "became
inordinately blatant and grossly aggravated when . . . (private respondent) was
deprived of his basic right to notice and a fair hearing in the so-called
preliminary investigation . . . . "
3. Concluding that petitioner's "actuations in this case were coldly deliberate
and calculated", no evidence having been adduced to support such a sweeping
statement.
4. Holding the petitioner corporation, petitioner Yap and petitioner Mendiona
jointly and severally liable without sufficient basis in law and in fact.
5. Awarding respondents —
5.1. P133,350.00 as actual or compensatory damages, even in the absence of
sufficient evidence to show that such was actually suffered.
5.2. P500,000.00 as moral damages considering that the evidence in this
connection merely involved private respondent's alleged celebrated status as a
businessman, there being no showing that the act complained of adversely
affected private respondent's reputation or that it resulted to material loss.
5.3. P200,000.00 as exemplary damages despite the fact that petitioners were
duly advised by counsel of their legal recourse.
5.4. P50,000.00 as attorney's fees, no evidence having been adduced to justify
such an award (Rollo, pp. 4-6).
Petitioners contend that the civil case filed in the lower court was one for
malicious prosecution. Citing the case of Madera vs. Lopez (102 SCRA 700
[1981]), they assert that the absence of malice on their part absolves them from
any liability for malicious prosecution. Private respondent, on the other hand,
anchored his complaint for Damages on Articles 19, 20, and 21 ** of the Civil
Code.
Article 19, known to contain what is commonly referred to as the principle of
abuse of rights, sets certain standards which may be observed not only in the
exercise of one's rights but also in the performance of one's duties. These
standards are the following: to act with justice; to give everyone his due; and to
observe honesty and good faith. The law, therefore, recognizes the primordial
limitation on all rights: that in their exercise, the norms of human conduct set
forth in Article 19 must be observed. A right, though by itself legal because
recognized or granted by law as such, may nevertheless become the source of
some illegality. When a right is exercised in a manner which does not conform
with the norms enshrined in Article 19 and results in damage to another, a legal
wrong is thereby committed for which the wrongdoer must be held responsible.
Although the requirements of each provision is different, these three (3) articles
are all related to each other. As the eminent Civilist Senator Arturo Tolentino
puts it: "With this article (Article 21), combined with articles 19 and 20, the
scope of our law on civil wrongs has been very greatly broadened; it has become
much more supple and adaptable than the Anglo-American law on torts. It is
now difficult to conceive of any malevolent exercise of a right which could not
be checked by the application of these articles" (Tolentino, 1 Civil Code of the
Philippines 72).
There is however, no hard and fast rule which can be applied to determine
whether or not the principle of abuse of rights may be invoked. The question of
whether or not the principle of abuse of rights has been violated, resulting in
damages under Articles 20 and 21 or other applicable provision of law, depends
on the circumstances of each case. (Globe Mackay Cable and Radio
Corporation vs. Court of Appeals, 176 SCRA 778 [1989]).
The elements of an abuse of right under Article 19 are the following: (1) There
is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent
of prejudicing or injuring another. Article 20 speaks of the general sanction for
all other provisions of law which do not especially provide for their own
sanction (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or
negligently, in the exercise of his legal right or duty, causes damage to another,
shall indemnify his victim for injuries suffered thereby. Article 21 deals with
acts contra bonus mores, and has the following elements: 1) There is an act
which is legal; 2) but which is contrary to morals, good custom, public order,
or public policy; 3) and it is done with intent to injure.
Thus, under any of these three (3) provisions of law, an act which causes injury
to another may be made the basis for an award of damages.
There is a common element under Articles 19 and 21, and that is, the act must
be intentional. However, Article 20 does not distinguish: the act may be done
either "willfully", or "negligently". The trial court as well as the respondent
appellate court mistakenly lumped these three (3) articles together, and cited the
same as the bases for the award of damages in the civil complaint filed against
petitioners, thus:
With the foregoing legal provisions (Articles 19, 20, and 21) in focus, there is
not much difficulty in ascertaining the means by which appellants' first assigned
error should be resolved, given the admitted fact that when there was an attempt
to collect the amount of P2,575.00, the defendants were explicitly warned that
plaintiff Eugenio S. Baltao is not the Eugenio Baltao defendants had been
dealing with (supra, p. 5). When the defendants nevertheless insisted and
persisted in filing a case — a criminal case no less — against plaintiff, said
defendants ran afoul of the legal provisions (Articles 19, 20, and 21 of the Civil
Code) cited by the lower court and heretofore quoted (supra).
Defendants, not having been paid the amount of P2,575.00, certainly had the
right to complain. But that right is limited by certain constraints. Beyond that
limit is the area of excess, of abuse of rights. (Rollo, pp.
44-45).
Assuming, arguendo, that all the three (3) articles, together and not
independently of each one, could be validly made the bases for an award of
damages based on the principle of "abuse of right", under the circumstances,
We see no cogent reason for such an award of damages to be made in favor of
private respondent.
Certainly, petitioners could not be said to have violated the aforestated principle
of abuse of right. What prompted petitioners to file the case for violation of
Batas Pambansa Bilang 22 against private respondent was their failure to collect
the amount of P2,575.00 due on a bounced check which they honestly believed
was issued to them by private respondent. Petitioners had conducted inquiries
regarding the origin of the check, and yielded the following results: from the
records of the Securities and Exchange Commission, it was discovered that the
President of Guaranteed (the recipient of the unpaid mild steel plates), was one
"Eugenio S. Baltao"; an inquiry with the Ministry of Trade and Industry
revealed that E.L. Woodworks, against whose account the check was drawn,
was registered in the name of one "Eugenio Baltao"; verification with the
drawee bank, the Pacific Banking Corporation, revealed that the signature
appearing on the check belonged to one "Eugenio Baltao".
In a letter dated December 16, 1983, counsel for petitioners wrote private
respondent demanding that he make good the amount of the check. Counsel for
private respondent wrote back and denied, among others, that private
respondent ever transacted business with Albenson Enterprises Corporation;
that he ever issued the check in question. Private respondent's counsel even
went further: he made a warning to defendants to check the veracity of their
claim. It is pivotal to note at this juncture that in this same letter, if indeed
private respondent wanted to clear himself from the baseless accusation made
against his person, he should have made mention of the fact that there are three
(3) persons with the same name, i.e.: Eugenio Baltao, Sr., Eugenio S. Baltao,
Jr. (private respondent), and Eugenio Baltao III (private respondent's son, who
as it turned out later, was the issuer of the check). He, however, failed to do this.
The last two Baltaos were doing business in the same building — Baltao
Building — located at 3267 V. Mapa Street, Sta. Mesa, Manila. The mild steel
plates were ordered in the name of Guaranteed of which respondent Eugenio S.
Baltao is the president and delivered to Guaranteed at Baltao building. Thus,
petitioners had every reason to believe that the Eugenio Baltao who issued the
bouncing check is respondent Eugenio S. Baltao when their counsel wrote
respondent to make good the amount of the check and upon refusal, filed the
complaint for violation of BP Blg. 22.
Private respondent, however, did nothing to clarify the case of mistaken identity
at first hand. Instead, private respondent waited in ambush and thereafter
pounced on the hapless petitioners at a time he thought was propitious by filing
an action for damages. The Court will not countenance this devious scheme.
The criminal complaint filed against private respondent after the latter refused
to make good the amount of the bouncing check despite demand was a sincere
attempt on the part of petitioners to find the best possible means by which they
could collect the sum of money due them. A person who has not been paid an
obligation owed to him will naturally seek ways to compel the debtor to pay
him. It was normal for petitioners to find means to make the issuer of the check
pay the amount thereof. In the absence of a wrongful act or omission or of fraud
or bad faith, moral damages cannot be awarded and that the adverse result of an
action does not per se make the action wrongful and subject the actor to the
payment of damages, for the law could not have meant to impose a penalty on
the right to litigate (Rubio vs. Court of Appeals, 141 SCRA 488 [1986]).
In the case at bar, private respondent does not deny that the mild steel plates
were ordered by and delivered to Guaranteed at Baltao building and as part
payment thereof, the bouncing check was issued by one Eugenio Baltao.
Neither had private respondent conveyed to petitioner that there are two
Eugenio Baltaos conducting business in the same building — he and his son
Eugenio Baltao III. Considering that Guaranteed, which received the goods in
payment of which the bouncing check was issued is owned by respondent,
petitioner acted in good faith and probable cause in filing the complaint before
the provincial fiscal.
To constitute malicious prosecution, there must be proof that the prosecution
was prompted by a sinister design to vex and humiliate a person, and that it was
initiated deliberately by the defendant knowing that his charges were false and
groundless. Concededly, the mere act of submitting a case to the authorities for
prosecution does not make one liable for malicious prosecution. (Manila Gas
Corporation vs. Court of Appeals, 100 SCRA 602 [1980]). Still, private
respondent argues that liability under Articles 19, 20, and 21 of the Civil Code
is so encompassing that it likewise includes liability for damages for malicious
prosecution under Article 2219 (8). True, a civil action for damages for
malicious prosecution is allowed under the New Civil Code, more specifically
Articles 19, 20, 26, 29, 32, 33, 35, and 2219 (8) thereof. In order that such a
case can prosper, however, the following three (3) elements must be present, to
wit: (1) The fact of the prosecution and the further fact that the defendant was
himself the prosecutor, and that the action was finally terminated with an
acquittal; (2) That in bringing the action, the prosecutor acted without probable
cause; (3) The prosecutor was actuated or impelled by legal malice (Lao vs.
Court of Appeals, 199 SCRA 58, [1991]).
Thus, a party injured by the filing of a court case against him, even if he is later
on absolved, may file a case for damages grounded either on the principle of
abuse of rights, or on malicious prosecution. As earlier stated, a complaint for
damages based on malicious prosecution will prosper only if the three (3)
elements aforecited are shown to exist. In the case at bar, the second and third
elements were not shown to exist. It is well-settled that one cannot be held liable
for maliciously instituting a prosecution where one has acted with probable
cause. "Probable cause is the existence of such facts and circumstances as would
excite the belief, in a reasonable mind, acting on the facts within the knowledge
of the prosecutor, that the person charged was guilty of the crime for which he
was prosecuted. In other words, a suit will lie only in cases where a legal
prosecution has been carried on without probable cause. The reason for this rule
is that it would be a very great discouragement to public justice, if prosecutors,
who had tolerable ground of suspicion, were liable to be sued at law when their
indictment miscarried" (Que vs. Intermediate Appellate Court, 169 SCRA 137
[1989]).
The presence of probable cause signifies, as a legal consequence, the absence
of malice. In the instant case, it is evident that petitioners were not motivated
by malicious intent or by sinister design to unduly harass private respondent,
but only by a well-founded anxiety to protect their rights when they filed the
criminal complaint against private respondent.
To constitute malicious prosecution, there must be proof that the prosecution
was prompted by a sinister design to vex and humiliate a person, that it was
initiated deliberately by the defendant knowing that his charges were false and
groundless. Concededly, the mere act of submitting a case to the authorities for
prosecution does not make one liable for malicious prosecution. Proof and
motive that the institution of the action was prompted by a sinister design to vex
and humiliate a person must be clearly and preponderantly established to entitle
the victims to damages (Ibid.).
In the case at bar, there is no proof of a sinister design on the part of petitioners
to vex or humiliate private respondent by instituting the criminal case against
him. While petitioners may have been negligent to some extent in determining
the liability of private respondent for the dishonored check, the same is not so
gross or reckless as to amount to bad faith warranting an award of damages.
The root of the controversy in this case is founded on a case of mistaken
identity. It is possible that with a more assiduous investigation, petitioners
would have eventually discovered that private respondent Eugenio S. Baltao is
not the "Eugenio Baltao" responsible for the dishonored check. However, the
record shows that petitioners did exert considerable effort in order to determine
the liability of private respondent. Their investigation pointed to private
respondent as the "Eugenio Baltao" who issued and signed the dishonored
check as the president of the debtor-corporation Guaranteed Enterprises. Their
error in proceeding against the wrong individual was obviously in the nature of
an innocent mistake, and cannot be characterized as having been committed in
bad faith. This error could have been discovered if respondent had submitted
his counter-affidavit before investigating fiscal Sumaway and was immediately
rectified by Provincial Fiscal Mauro Castro upon discovery thereof, i.e., during
the reinvestigation resulting in the dismissal of the complaint.
Furthermore, the adverse result of an action does not per se make the act
wrongful and subject the actor to the payment of moral damages. The law could
not have meant to impose a penalty on the right to litigate, such right is so
precious that moral damages may not be charged on those who may even
exercise it erroneously. And an adverse decision does not ipso facto justify the
award of attorney's fees to the winning party (Garcia vs. Gonzales, 183 SCRA
72 [1990]).
Thus, an award of damages and attorney's fees is unwarranted where the action
was filed in good faith. If damage results from a person's exercising his legal
rights, it is damnum absque injuria (Ilocos Norte Electric Company vs. Court
of Appeals, 179 SCRA 5 [1989]).
Coming now to the claim of private respondent for actual or compensatory
damages, the records show that the same was based solely on his allegations
without proof to substantiate the same. He did not present proof of the cost of
the medical treatment which he claimed to have undergone as a result of the
nervous breakdown he suffered, nor did he present proof of the actual loss to
his business caused by the unjust litigation against him. In determining actual
damages, the court cannot rely on speculation, conjectures or guesswork as to
the amount. Without the actual proof of loss, the award of actual damages
becomes erroneous (Guilatco vs. City of Dagupan, 171 SCRA 382 [1989]).
Actual and compensatory damages are those recoverable because of pecuniary
loss — in business, trade, property, profession, job or occupation — and the
same must be proved, otherwise, if the proof is flimsy and unsubstantiated, no
damages will be given (Rubio vs. Court of Appeals, 141 SCRA 488 [1986]).
For these reasons, it was gravely erroneous for respondent court to have
affirmed the award of actual damages in favor of private respondent in the
absence of proof thereof.
Where there is no evidence of the other party having acted in wanton, fraudulent
or reckless, or oppressive manner, neither may exemplary damages be awarded
(Dee Hua Liong Electrical Equipment Corporation vs. Reyes, 145 SCRA 488
[1986]).
As to the award of attorney's fees, it is well-settled that the same is the exception
rather than the general rule. Needless to say, the award of attorney's fees must
be disallowed where the award of exemplary damages is eliminated (Article
2208, Civil Code; Agustin vs. Court of Appeals, 186 SCRA 375 [1990]).
Moreover, in view of the fact that there was no malicious prosecution against
private respondent, attorney's fees cannot be awarded him on that ground.
In the final analysis, there is no proof or showing that petitioners acted
maliciously or in bad faith in the filing of the case against private respondent.
Consequently, in the absence of proof of fraud and bad faith committed by
petitioners, they cannot be held liable for damages (Escritor, Jr. vs. Intermediate
Appellate Court, 155 SCRA 577 [1987]). No damages can be awarded in the
instant case, whether based on the principle of abuse of rights, or for malicious
prosecution. The questioned judgment in the instant case attests to the
propensity of trial judges to award damages without basis. Lower courts are
hereby cautioned anew against awarding unconscionable sums as damages
without bases therefor.
WHEREFORE, the petition is GRANTED and the decision of the Court of
Appeals in C.A. G.R. C.V. No. 14948 dated May 13, 1989, is hereby
REVERSED and SET ASIDE. Costs against respondent Baltao.
SO ORDERED.
Gutierrez, Jr., Davide, Jr., Romero and Melo, JJ., concur.
8th
FIRST DIVISION
G.R. No. 137873 April 20, 2001
D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of
D. M. Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to
his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy
and filed a report dated November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro
Manila where he was pronounced dead on arrival (DOA) by the attending
physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose
A. Juego together with Jessie Jaluag and Delso Destajo [were] performing their
work as carpenter[s] at the elevator core of the 14th floor of the Tower D,
Renaissance Tower Building on board a [p]latform made of channel beam
(steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring
and cable wires attached to its four corners and hooked at the 5 ton chain block,
when suddenly, the bolt or pin which was merely inserted to connect the chain
block with the [p]latform, got loose xxx causing the whole [p]latform assembly
and the victim to fall down to the basement of the elevator core, Tower D of the
building under construction thereby crushing the victim of death, save his two
(2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform
he was then on board and performing work, fell. And the falling of the
[p]latform was due to the removal or getting loose of the pin which was merely
inserted to the connecting points of the chain block and [p]latform but without
a safety lock.1
On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court
(RTC) of Pasig a complaint for damages against the deceased’s employer, D.M.
Consunji, Inc. The employer raised, among other defenses, the widow’s prior
availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The
dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay
plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorney’s fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision
of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following
grounds:
THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE
REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED
NEGLIGENCE OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE
OF RES IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE
NEGLIGENCE ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS
PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE,
AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS
NOT PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL
CODE.3
Petitioner maintains that the police report reproduced above is hearsay and,
therefore, inadmissible. The CA ruled otherwise. It held that said report, being
an entry in official records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which
he knows of his personal knowledge, that is, which are derived from his
perception.4 A witness, therefore, may not testify as what he merely learned
from others either because he was told or read or heard the same. Such
testimony is considered hearsay and may not be received as proof of the truth
of what he has learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that
excludes hearsay as evidence applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies,
suppressions, sources of error and untrustworthiness, which lie underneath the
bare untested assertion of a witness, may be best brought to light and exposed
by the test of cross-examiantion. The hearsay rule, therefore, excludes evidence
that cannot be tested by cross-examination.
The Rules of Court allow several exceptions to the rule, among which are
entries in official records. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the
performance of his duty by a public officer of the Philippines, or by a person in
the performance of a duty specially enjoined by law are prima facie evidence of
the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al., this Court, citing the work of Chief
Justice Moran, enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially
enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts
by him stated, which must have been acquired by him personally or through
official information.
The CA held that the police report meets all these requisites. Petitioner contends
that the last requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also
testified before the trial court. In Rodriguez vs. Court of Appeals, which
involved a Fire Investigation Report, the officer who signed the fire report also
testified before the trial court. This Court held that the report was inadmissible
for the purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who
executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available
for cross-examination, the portions of the report which were of his personal
knowledge or which consisted of his perceptions and conclusions were not
hearsay. The rest of the report, such as the summary of the statements of the
parties based on their sworn statements (which were annexed to the Report) as
well as the latter, having been included in the first purpose of the offer [as part
of the testimony of Major Enriquez], may then be considered as independently
relevant statements which were gathered in the course of the investigation and
may thus be admitted as such, but not necessarily to prove the truth thereof. It
has been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has been
made is relevant, the hearsay rule does not apply, but the statement may be
shown. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact in issue, or be
circumstantially relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his
Report and made himself available for cross-examination by the adverse party,
the Report, insofar as it proved that certain utterances were made (but not their
truth), was effectively removed from the ambit of the aforementioned Section
44 of Rule 130. Properly understood, this section does away with the testimony
in open court of the officer who made the official record, considers the matter
as an exception to the hearsay rule and makes the entries in said official record
admissible in evidence as prima facie evidence of the facts therein stated. The
underlying reasons for this exceptionary rule are necessity and trustworthiness,
as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the
occasions in which the officials would be summoned from his ordinary duties
to declare as a witness are numberless. The public officers are few in whose
daily work something is not done in which testimony is not needed from official
sources. Were there no exception for official statements, hosts of officials
would be found devoting the greater part of their time to attending as witnesses
in court or delivering deposition before an officer. The work of administration
of government and the interest of the public having business with officials
would alike suffer in consequence. For these reasons, and for many others, a
certain verity is accorded such documents, which is not extended to private
documents. (3 Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they
will discharge their several trusts with accuracy and fidelity; and, therefore,
whatever acts they do in discharge of their duty may be given in evidence and
shall be taken to be true under such a degree of caution as to the nature and
circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not
presented to testify on his report. In that case the applicability of Section 44 of
Rule 143 would have been ripe for determination, and this Court would have
agreed with the Court of Appeals that said report was inadmissible since the
aforementioned third requisite was not satisfied. The statements given by the
sources of information of Major Enriquez failed to qualify as "official
information," there being no showing that, at the very least, they were under a
duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of
proving the truth of the statements contained therein but is admissible insofar
as it constitutes part of the testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanueva’s testimony which
were of his personal knowledge suffice to prove that Jose Juego indeed died as
a result of the elevator crash. PO3 Villanueva had seen Juego’s remains at the
morgue, making the latter’s death beyond dispute. PO3 Villanueva also
conducted an ocular inspection of the premises of the building the day after the
incident and saw the platform for himself. He observed that the platform was
crushed and that it was totally damaged.16 PO3 Villanueva also required Garcia
and Fabro to bring the chain block to the police headquarters. Upon inspection,
he noticed that the chain was detached from the lifting machine, without any
pin or bolt.
What petitioner takes particular exception to is PO3 Villanueva’s testimony that
the cause of the fall of the platform was the loosening of the bolt from the chain
block. It is claimed that such portion of the testimony is mere opinion. Subject
to certain exceptions, the opinion of a witness is generally not admissible.
Petitioner’s contention, however, loses relevance in the face of the application
of res ipsa loquitur by the CA. The effect of the doctrine is to warrant a
presumption or inference that the mere fall of the elevator was a result of the
person having charge of the instrumentality was negligent. As a rule of
evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence
which recognizes that prima facie negligence may be established without direct
proof and furnishes a substitute for specific proof of negligence.
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere
happening of an accident or injury will not generally give rise to an inference
or presumption that it was due to negligence on defendant’s part, under the
doctrine of res ipsa loquitur, which means, literally, the thing or transaction
speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks
for itself, the facts or circumstances accompanying an injury may be such as to
raise a presumption, or at least permit an inference of negligence on the part of
the defendant, or some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury
complained of was under the control or management of the defendant, and that
the occurrence resulting in the injury was such as in the ordinary course of
things would not happen if those who had its control or management used
proper care, there is sufficient evidence, or, as sometimes stated, reasonable
evidence, in the absence of explanation by the defendant, that the injury arose
from or was caused by the defendant’s want of care.
One of the theoretical based for the doctrine is its necessity, i.e., that necessary
evidence is absent or not available.
The res ipsa loquitur doctrine is based in part upon the theory that the defendant
in charge of the instrumentality which causes the injury either knows the cause
of the accident or has the best opportunity of ascertaining it and that the plaintiff
has no such knowledge, and therefore is compelled to allege negligence in
general terms and to rely upon the proof of the happening of the accident in
order to establish negligence. The inference which the doctrine permits is
grounded upon the fact that the chief evidence of the true cause, whether
culpable or innocent, is practically accessible to the defendant but inaccessible
to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which
a plaintiff, without knowledge of the cause, reaches over to defendant who
knows or should know the cause, for any explanation of care exercised by the
defendant in respect of the matter of which the plaintiff complains. The res ipsa
loquitur doctrine, another court has said, is a rule of necessity, in that it proceeds
on the theory that under the peculiar circumstances in which the doctrine is
applicable, it is within the power of the defendant to show that there was no
negligence on his part, and direct proof of defendant’s negligence is beyond
plaintiff’s power. Accordingly, some court add to the three prerequisites for the
application of the res ipsa loquitur doctrine the further requirement that for the
res ipsa loquitur doctrine to apply, it must appear that the injured party had no
knowledge or means of knowledge as to the cause of the accident, or that the
party to be charged with negligence has superior knowledge or opportunity for
explanation of the accident.
The CA held that all the requisites of res ipsa loquitur are present in the case at
bar:
There is no dispute that appellee’s husband fell down from the 14th floor of a
building to the basement while he was working with appellant’s construction
project, resulting to his death. The construction site is within the exclusive
control and management of appellant. It has a safety engineer, a project
superintendent, a carpenter leadman and others who are in complete control of
the situation therein. The circumstances of any accident that would occur
therein are peculiarly within the knowledge of the appellant or its employees.
On the other hand, the appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it applies where evidence
is absent or not readily available, provided the following requisites are present:
(1) the accident was of a kind which does not ordinarily occur unless someone
is negligent; (2) the instrumentality or agency which caused the injury was
under the exclusive control of the person charged with negligence; and (3) the
injury suffered must not have been due to any voluntary action or contribution
on the part of the person injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement
while performing work in a construction site unless someone is negligent[;]
thus, the first requisite for the application of the rule of res ipsa loquitur is
present. As explained earlier, the construction site with all its paraphernalia and
human resources that likely caused the injury is under the exclusive control and
management of appellant[;] thus[,] the second requisite is also present. No
contributory negligence was attributed to the appellee’s deceased husband[;]
thus[,] the last requisite is also present. All the requisites for the application of
the rule of res ipsa loquitur are present, thus a reasonable presumption or
inference of appellant’s negligence arises. x x x.
Petitioner does not dispute the existence of the requisites for the application of
res ipsa loquitur, but argues that the presumption or inference that it was
negligent did not arise since it "proved that it exercised due care to avoid the
accident which befell respondent’s husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As
stated earlier, the defendant’s negligence is presumed or inferred when the
plaintiff establishes the requisites for the application of res ipsa loquitur. Once
the plaintiff makes out a prima facie case of all the elements, the burden then
shifts to defendant to explain. The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances disputable
presumption, such as that of due care or innocence, may outweigh the inference.
It is not for the defendant to explain or prove its defense to prevent the
presumption or inference from arising. Evidence by the defendant of say, due
care, comes into play only after the circumstances for the application of the
doctrine has been established.
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro
executed before the police investigator as evidence of its due care. According
to Fabro’s sworn statement, the company enacted rules and regulations for the
safety and security of its workers. Moreover, the leadman and the bodegero
inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due
care but, in arguing that private respondent failed to prove negligence on the
part of petitioner’s employees, also assails the same statement for being
hearsay.
Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible.
Affidavits are inadmissible as evidence under the hearsay rule, unless the affiant
is placed on the witness stand to testify thereon.28 The inadmissibility of this
sort of evidence is based not only on the lack of opportunity on the part of the
adverse party to cross-examine the affiant, but also on the commonly known
fact that, generally, an affidavit is not prepared by the affiant himself but by
another who uses his own language in writing the affiant’s statements which
may either be omitted or misunderstood by the one writing them. Petitioner,
therefore, cannot use said statement as proof of its due care anymore than
private respondent can use it to prove the cause of her husband’s death.
Regrettably, petitioner does not cite any other evidence to rebut the inference
or presumption of negligence arising from the application of res ipsa loquitur,
or to establish any defense relating to the incident.
Next, petitioner argues that private respondent had previously availed of the
death benefits provided under the Labor Code and is, therefore, precluded from
claiming from the deceased’s employer damages under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. – Unless otherwise provided, the liability of the
State Insurance Fund under this Title shall be exclusive and in place of all other
liabilities of the employer to the employee, his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents. The
payment of compensation under this Title shall not bar the recovery of benefits
as provided for in Section 699 of the Revised Administrative Code, Republic
Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered
Six hundred ten, as amended, Republic Act Numbered Forty-eight hundred
sixty-four as amended, and other laws whose benefits are administered by the
System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s
Compensation Act, provided that:
Section 5. Exclusive right to compensation. – The rights and remedies granted
by this Act to an employee by reason of a personal injury entitling him to
compensation shall exclude all other rights and remedies accruing to the
employee, his personal representatives, dependents or nearest of kin against the
employer under the Civil Code and other laws because of said injury x x x.
Whether Section 5 of the Workmen’s Compensation Act allowed recovery
under said Act as well as under the Civil Code used to be the subject of
conflicting decisions. The Court finally settled the matter in Floresca vs.Philex
Mining Corporation, which involved a cave-in resulting in the death of the
employees of the Philex Mining Corporation. Alleging that the mining
corporation, in violation of government rules and regulations, failed to take the
required precautions for the protection of the employees, the heirs of the
deceased employees filed a complaint against Philex Mining in the Court of
First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the
complaint for lack of jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of
the Court En Banc, following the rule in Pacaña vs. Cebu Autobus Company,
held in the affirmative.
WE now come to the query as to whether or not the injured employee or his
heirs in case of death have a right of selection or choice of action between
availing themselves of the worker’s right under the Workmen’s Compensation
Act and suing in the regular courts under the Civil Code for higher damages
(actual, moral and exemplary) from the employers by virtue of the negligence
or fault of the employers or whether they may avail themselves cumulatively of
both actions, i.e., collect the limited compensation under the Workmen’s
Compensation Act and sue in addition for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company,
32 SCRA 442, ruled that an injured worker has a choice of either to recover
from the employer the fixed amounts set by the Workmen’s Compensation Act
or to prosecute an ordinary civil action against the tortfeasor for higher damages
but he cannot pursue both courses of action simultaneously. [Underscoring
supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed
with their suit under the Civil Code despite having availed of the benefits
provided under the Workmen’s Compensation Act. The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to
dismiss dated May 14, 1968 before the court a quo, that the heirs of the deceased
employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo
Isla and Saturnino submitted notices and claims for compensation to the
Regional Office No. 1 of the then Department of Labor and all of them have
been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs
decided that they be paid in installments x x x. Such allegation was admitted by
herein petitioners in their opposition to the motion to dismiss dated May 27,
1968 x x x in the lower court, but they set up the defense that the claims were
filed under the Workmen’s Compensation Act before they learned of the official
report of the committee created to investigate the accident which established
the criminal negligence and violation of law by Philex, and which report was
forwarded by the Director of Mines to then Executive Secretary Rafael Salas in
a letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the
Workmen’s Compensation Act, such my not preclude them from bringing an
action before the regular court because they became cognizant of the fact that
Philex has been remiss in its contractual obligations with the deceased miners
only after receiving compensation under the Act. Had petitioners been aware of
said violation of government rules and regulations by Philex, and of its
negligence, they would not have sought redress under the Workmen’s
Compensation Commission which awarded a lesser amount for compensation.
The choice of the first remedy was based on ignorance or a mistake of fact,
which nullifies the choice as it was not an intelligent choice. The case should
therefore be remanded to the lower court for further proceedings. However,
should the petitioners be successful in their bid before the lower court, the
payments made under the Workmen’s Compensation Act should be deducted
from the damages that may be decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was
reiterated in Ysmael Maritime Corporation vs. Avelino, Vda. De Severo vs.
Feliciano-Go, and Marcopper Mining Corp. vs. Abeleda.34 In the last case, the
Court again recognized that a claimant who had been paid under the Act could
still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in
the course of their employment could be filed only under the Workmen’s
Compensation Law, to the exclusion of all further claims under other laws. In
Floresca, this doctrine was abrogated in favor of the new rule that the claimants
may invoke either the Workmen’s Compensation Act or the provisions of the
Civil Code, subject to the consequence that the choice of one remedy will
exclude the other and that the acceptance of compensation under the remedy
chosen will preclude a claim for additional benefits under the other remedy. The
exception is where a claimant who has already been paid under the Workmen’s
Compensation Act may still sue for damages under the Civil Code on the basis
of supervening facts or developments occurring after he opted for the first
remedy. (Underscoring supplied.)
Here, the CA held that private respondent’s case came under the exception
because private respondent was unaware of petitioner’s negligence when she
filed her claim for death benefits from the State Insurance Fund. Private
respondent filed the civil complaint for damages after she received a copy of
the police investigation report and the Prosecutor’s Memorandum dismissing
the criminal complaint against petitioner’s personnel. While stating that there
was no negligence attributable to the respondents in the complaint, the
prosecutor nevertheless noted in the Memorandum that, "if at all," the "case is
civil in nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of
appellant as early as November 25, 1990, the date of the police investigator’s
report. The appellee merely executed her sworn statement before the police
investigator concerning her personal circumstances, her relation to the victim,
and her knowledge of the accident. She did not file the complaint for "Simple
Negligence Resulting to Homicide" against appellant’s employees. It was the
investigator who recommended the filing of said case and his supervisor
referred the same to the prosecutor’s office. This is a standard operating
procedure for police investigators which appellee may not have even known.
This may explain why no complainant is mentioned in the preliminary
statement of the public prosecutor in her memorandum dated February 6, 1991,
to wit: "Respondent Ferdinand Fabro x x x are being charged by complainant
of "Simple Negligence Resulting to Homicide." It is also possible that the
appellee did not have a chance to appear before the public prosecutor as can be
inferred from the following statement in said memorandum: "Respondents who
were notified pursuant to Law waived their rights to present controverting
evidence," thus there was no reason for the public prosecutor to summon the
appellee. Hence, notice of appellant’s negligence cannot be imputed on appellee
before she applied for death benefits under ECC or before she received the first
payment therefrom. Her using the police investigation report to support her
complaint filed on May 9, 1991 may just be an afterthought after receiving a
copy of the February 6, 1991 Memorandum of the Prosecutor’s Office
dismissing the criminal complaint for insufficiency of evidence, stating therein
that: "The death of the victim is not attributable to any negligence on the part
of the respondents. If at all and as shown by the records this case is civil in
nature." (Underscoring supplied.) Considering the foregoing, we are more
inclined to believe appellee’s allegation that she learned about appellant’s
negligence only after she applied for and received the benefits under ECC. This
is a mistake of fact that will make this case fall under the exception held in the
Floresca ruling.
The CA further held that not only was private respondent ignorant of the facts,
but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary
school for her educational attainment; that she did not know what damages
could be recovered from the death of her husband; and that she did not know
that she may also recover more from the Civil Code than from the ECC. x x
x.36
Petitioner impugns the foregoing rulings. It contends that private respondent
"failed to allege in her complaint that her application and receipt of benefits
from the ECC were attended by ignorance or mistake of fact. Not being an issue
submitted during the trial, the trial court had no authority to hear or adjudicate
that issue."
Petitioner also claims that private respondent could not have been ignorant of
the facts because as early as November 28, 1990, private respondent was the
complainant in a criminal complaint for "Simple Negligence Resulting to
Homicide" against petitioner’s employees. On February 6, 1991, two months
before the filing of the action in the lower court, Prosecutor Lorna Lee issued a
resolution finding that, although there was insufficient evidence against
petitioner’s employees, the case was "civil in nature." These purportedly show
that prior to her receipt of death benefits from the ECC on January 2, 1991 and
every month thereafter, private respondent also knew of the two choices of
remedies available to her and yet she chose to claim and receive the benefits
from the ECC.
When a party having knowledge of the facts makes an election between
inconsistent remedies, the election is final and bars any action, suit, or
proceeding inconsistent with the elected remedy, in the absence of fraud by the
other party. The first act of election acts as a bar. Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to
both parties. It rests on the moral premise that it is fair to hold people
responsible for their choices. The purpose of the doctrine is not to prevent any
recourse to any remedy, but to prevent a double redress for a single wrong.
The choice of a party between inconsistent remedies results in a waiver by
election. Hence, the rule in Floresca that a claimant cannot simultaneously
pursue recovery under the Labor Code and prosecute an ordinary course of
action under the Civil Code. The claimant, by his choice of one remedy, is
deemed to have waived the other.
Waiver is the intentional relinquishment of a known right.
[It] is an act of understanding that presupposes that a party has knowledge of its
rights, but chooses not to assert them. It must be generally shown by the party
claiming a waiver that the person against whom the waiver is asserted had at
the time knowledge, actual or constructive, of the existence of the party’s rights
or of all material facts upon which they depended. Where one lacks knowledge
of a right, there is no basis upon which waiver of it can rest. Ignorance of a
material fact negates waiver, and waiver cannot be established by a consent
given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that
a right exists and has adequate knowledge upon which to make an intelligent
decision.
Waiver requires a knowledge of the facts basic to the exercise of the right
waived, with an awareness of its consequences. That a waiver is made
knowingly and intelligently must be illustrated on the record or by the evidence.
That lack of knowledge of a fact that nullifies the election of a remedy is the
basis for the exception in Floresca.
It is in light of the foregoing principles that we address petitioner’s contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as
plaintiff, to allege in her complaint that she had availed of benefits from the
ECC. It is, thus, erroneous for petitioner to burden private respondent with
raising waiver as an issue. On the contrary, it is the defendant who ought to
plead waiver, as petitioner did in pages 2-3 of its Answer; otherwise, the defense
is waived. It is, therefore, perplexing for petitioner to now contend that the trial
court had no jurisdiction over the issue when petitioner itself pleaded waiver in
the proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her
husband’s death and the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of
fact. In this case, the "fact" that served as a basis for nullifying the waiver is the
negligence of petitioner’s employees, of which private respondent purportedly
learned only after the prosecutor issued a resolution stating that there may be
civil liability. In Floresca, it was the negligence of the mining corporation and
its violation of government rules and regulations. Negligence, or violation of
government rules and regulations, for that matter, however, is not a fact, but a
conclusion of law, over which only the courts have the final say. Such a
conclusion binds no one until the courts have decreed so. It appears, therefore,
that the principle that ignorance or mistake of fact nullifies a waiver has been
misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband
died in the elevator crash when on November 15, 1990 she accomplished her
application for benefits from the ECC. The police investigation report is dated
November 25, 1990, 10 days after the accomplishment of the form. Petitioner
filed the application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available
to her when the claim before the ECC was filed. On the contrary, private
respondent testified that she was not aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of
the law excuses no one from compliance therewith. As judicial decisions
applying or interpreting the laws or the Constitution form part of the Philippine
legal system (Article 8, Civil Code), private respondent cannot claim ignorance
of this Court’s ruling in Floresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory
and prohibitory laws. This may be deduced from the language of the provision,
which, notwithstanding a person’s ignorance, does not excuse his or her
compliance with the laws. The rule in Floresca allowing private respondent a
choice of remedies is neither mandatory nor prohibitory. Accordingly, her
ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records
do not indicate the total amount private respondent ought to receive from the
ECC, although it appears from Exhibit "K" that she received P3,581.85 as initial
payment representing the accrued pension from November 1990 to March 1991.
Her initial monthly pension, according to the same Exhibit "K," was P596.97
and present total monthly pension was P716.40. Whether the total amount she
will eventually receive from the ECC is less than the sum of P644,000.00 in
total damages awarded by the trial court is subject to speculation, and the case
is remanded to the trial court for such determination. Should the trial court find
that its award is greater than that of the ECC, payments already received by
private respondent under the Labor Code shall be deducted from the trial court'’
award of damages. Consistent with our ruling in Floresca, this adjudication aims
to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig
City to determine whether the award decreed in its decision is more than that of
the ECC. Should the award decreed by the trial court be greater than that
awarded by the ECC, payments already made to private respondent pursuant to
the Labor Code shall be deducted therefrom. In all other respects, the Decision
of the Court of Appeals is AFFIRMED.
SO ORDERED.
Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.
9th
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
July 30, 1979
PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME
"SYCIP, SALAZAR, FELICIANO, HERNANDEZ & CASTILLO."
LUCIANO E. SALAZAR, FLORENTINO P. FELICIANO, BENILDO G.
HERNANDEZ. GREGORIO R. CASTILLO. ALBERTO P. SAN JUAN,
JUAN C. REYES. JR., ANDRES G. GATMAITAN, JUSTINO H.
CACANINDIN, NOEL A. LAMAN, ETHELWOLDO E. FERNANDEZ,
ANGELITO C. IMPERIO, EDUARDO R. CENIZA, TRISTAN A.
CATINDIG, ANCHETA K. TAN, and ALICE V. PESIGAN, petitioners.
IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE
USE OF THE FIRM NAME "OZAETA, ROMULO, DE LEON, MABANTA
& REYES." RICARDO J. ROMULO, BENJAMIN M. DE LEON, ROMAN
MABANTA, JR., JOSE MA, REYES, JESUS S. J. SAYOC, EDUARDO DE
LOS ANGELES, and JOSE F. BUENAVENTURA, petitioners.
RESOLUTION
MELENCIO-HERRERA, J.:
Two separate Petitions were filed before this Court 1) by the surviving partners
of Atty. Alexander Sycip, who died on May 5, 1975, and 2) by the surviving
partners of Atty. Herminio Ozaeta, who died on February 14, 1976, praying that
they be allowed to continue using, in the names of their firms, the names of
partners who had passed away. In the Court's Resolution of September 2, 1976,
both Petitions were ordered consolidated.
Petitioners base their petitions on the following arguments:
1. Under the law, a partnership is not prohibited from continuing its business
under a firm name which includes the name of a deceased partner; in fact,
Article 1840 of the Civil Code explicitly sanctions the practice when it provides
in the last paragraph that:
The use by the person or partnership continuing the business of the partnership
name, or the name of a deceased partner as part thereof, shall not of itself make
the individual property of the deceased partner liable for any debts contracted
by such person or partnership.
2. In regulating other professions, such as accountancy and engineering, the
legislature has authorized the adoption of firm names without any restriction as
to the use, in such firm name, of the name of a deceased partner; 2 the legislative
authorization given to those engaged in the practice of accountancy — a
profession requiring the same degree of trust and confidence in respect of clients
as that implicit in the relationship of attorney and client — to acquire and use a
trade name, strongly indicates that there is no fundamental policy that is
offended by the continued use by a firm of professionals of a firm name which
includes the name of a deceased partner, at least where such firm name has
acquired the characteristics of a "trade name."
3. The Canons of Professional Ethics are not transgressed by the continued use
of the name of a deceased partner in the firm name of a law partnership because
Canon 33 of the Canons of Professional Ethics adopted by the American Bar
Association declares that:
... The continued use of the name of a deceased or former partner when
permissible by local custom, is not unethical but care should be taken that no
imposition or deception is practiced through this use. ...
4. There is no possibility of imposition or deception because the deaths of their
respective deceased partners were well-publicized in all newspapers of general
circulation for several days; the stationeries now being used by them carry new
letterheads indicating the years when their respective deceased partners were
connected with the firm; petitioners will notify all leading national and
international law directories of the fact of their respective deceased partners'
deaths.
5. No local custom prohibits the continued use of a deceased partner's name in
a professional firm's name; 6 there is no custom or usage in the Philippines, or
at least in the Greater Manila Area, which recognizes that the name of a law
firm necessarily identifies the individual members of the firm.
6. The continued use of a deceased partner's name in the firm name of law
partnerships has been consistently allowed by U.S. Courts and is an accepted
practice in the legal profession of most countries in the world.
The question involved in these Petitions first came under consideration by this
Court in 1953 when a law firm in Cebu (the Deen case) continued its practice
of including in its firm name that of a deceased partner, C.D. Johnston. The
matter was resolved with this Court advising the firm to desist from including
in their firm designation the name of C. D. Johnston, who has long been dead."
The same issue was raised before this Court in 1958 as an incident in G. R. No.
L-11964, entitled Register of Deeds of Manila vs. China Banking Corporation.
The law firm of Perkins & Ponce Enrile moved to intervene as amicus curiae.
Before acting thereon, the Court, in a Resolution of April 15, 1957, stated that
it "would like to be informed why the name of Perkins is still being used
although Atty. E. A. Perkins is already dead." In a Manifestation dated May 21,
1957, the law firm of Perkins and Ponce Enrile, raising substantially the same
arguments as those now being raised by petitioners, prayed that the continued
use of the firm name "Perkins & Ponce Enrile" be held proper.
On June 16, 1958, this Court resolved:
After carefully considering the reasons given by Attorneys Alfonso Ponce
Enrile and Associates for their continued use of the name of the deceased E. G.
Perkins, the Court found no reason to depart from the policy it adopted in June
1953 when it required Attorneys Alfred P. Deen and Eddy A. Deen of Cebu
City to desist from including in their firm designation, the name of C. D.
Johnston, deceased. The Court believes that, in view of the personal and
confidential nature of the relations between attorney and client, and the high
standards demanded in the canons of professional ethics, no practice should be
allowed which even in a remote degree could give rise to the possibility of
deception. Said attorneys are accordingly advised to drop the name "PERKINS"
from their firm name.
Petitioners herein now seek a re-examination of the policy thus far enunciated
by the Court.
The Court finds no sufficient reason to depart from the rulings thus laid down.
A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and
"Ozaeta, Romulo, De Leon, Mabanta and Reyes" are partnerships, the use in
their partnership names of the names of deceased partners will run counter to
Article 1815 of the Civil Code which provides:
Art. 1815. Every partnership shall operate under a firm name, which may or
may not include the name of one or more of the partners.
Those who, not being members of the partnership, include their names in the
firm name, shall be subject to the liability, of a partner.
It is clearly tacit in the above provision that names in a firm name of a
partnership must either be those of living partner’s and. in the case of non-
partners, should be living persons who can be subjected to liability. In fact,
Article 1825 of the Civil Code prohibits a third person from including his name
in the firm name under pain of assuming the liability of a partner. The heirs of
a deceased partner in a law firm cannot be held liable as the old members to the
creditors of a firm particularly where they are non-lawyers. Thus, Canon 34 of
the Canons of Professional Ethics "prohibits an agreement for the payment to
the widow and heirs of a deceased lawyer of a percentage, either gross or net,
of the fees received from the future business of the deceased lawyer's clients,
both because the recipients of such division are not lawyers and because such
payments will not represent service or responsibility on the part of the recipient.
" Accordingly, neither the widow nor the heirs can be held liable for transactions
entered into after the death of their lawyer-predecessor. There being no benefits
accruing, there ran be no corresponding liability.
Presiding the law, there could be practical objections to allowing the use by law
firms of the names of deceased partners. The public relations value of the use
of an old firm name can tend to create undue advantages and disadvantages in
the practice of the profession. An able lawyer without connections will have to
make a name for himself starting from scratch. Another able lawyer, who can
join an old firm, can initially ride on that old firm's reputation established by
deceased partners.
B. In regards to the last paragraph of Article 1840 of the Civil Code cited by
petitioners, supra, the first factor to consider is that it is within Chapter 3 of
Title IX of the Code entitled "Dissolution and Winding Up." The Article
primarily deals with the exemption from liability in cases of a dissolved
partnership, of the individual property of the deceased partner for debts
contracted by the person or partnership which continues the business using the
partnership name or the name of the deceased partner as part thereof. What the
law contemplates therein is a hold-over situation preparatory to formal
reorganization.
Secondly, Article 1840 treats more of a commercial partnership with a good
will to protect rather than of a professional partnership, with no saleable good
will but whose reputation depends on the personal qualifications of its
individual members. Thus, it has been held that a saleable goodwill can exist
only in a commercial partnership and cannot arise in a professional partnership
consisting of lawyers.
As a general rule, upon the dissolution of a commercial partnership the
succeeding partners or parties have the right to carry on the business under the
old name, in the absence of a stipulation forbidding it, (s)ince the name of a
commercial partnership is a partnership asset inseparable from the good will of
the firm. ... (60 Am Jur 2d, s 204, p. 115) (Emphasis supplied)
On the other hand,
... a professional partnership the reputation of which depends or; the individual
skill of the members, such as partnerships of attorneys or physicians, has no
good win to be distributed as a firm asset on its dissolution, however
intrinsically valuable such skill and reputation may be, especially where there
is no provision in the partnership agreement relating to good will as an asset. ...
(ibid, s 203, p. 115) (Emphasis supplied)
C. A partnership for the practice of law cannot be likened to partnerships formed
by other professionals or for business. For one thing, the law on accountancy
specifically allows the use of a trade name in connection with the practice of
accountancy.
A partnership for the practice of law is not a legal entity. It is a mere relationship
or association for a particular purpose. ... It is not a partnership formed for the
purpose of carrying on trade or business or of holding property." 11 Thus, it has
been stated that "the use of a nom de plume, assumed or trade name in law
practice is improper.
The usual reason given for different standards of conduct being applicable to
the practice of law from those pertaining to business is that the law is a
profession.
Dean Pound, in his recently published contribution to the Survey of the Legal
Profession, (The Lawyer from Antiquity to Modern Times, p. 5) defines a
profession as "a group of men pursuing a learned art as a common calling in the
spirit of public service, — no less a public service because it may incidentally
be a means of livelihood."
xxx xxx xxx
Primary characteristics which distinguish the legal profession from business
are:
1. A duty of public service, of which the emolument is a byproduct, and in
which one may attain the highest eminence without making much money.
2. A relation as an "officer of court" to the administration of justice involving
thorough sincerity, integrity, and reliability.
3. A relation to clients in the highest degree fiduciary.
4. A relation to colleagues at the bar characterized by candor, fairness, and
unwillingness to resort to current business methods of advertising and
encroachment on their practice, or dealing directly with their clients.
"The right to practice law is not a natural or constitutional right but is in the
nature of a privilege or franchise. It is limited to persons of good moral character
with special qualifications duly ascertained and certified. The right does not
only presuppose in its possessor integrity, legal standing and attainment, but
also the exercise of a special privilege, highly personal and partaking of the
nature of a public trust."
D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the
American Bar Association" in support of their petitions.
It is true that Canon 33 does not consider as unethical the continued use of the
name of a deceased or former partner in the firm name of a law partnership
when such a practice is permissible by local custom but the Canon warns that
care should be taken that no imposition or deception is practiced through this
use.
It must be conceded that in the Philippines, no local custom permits or allows
the continued use of a deceased or former partner's name in the firm names of
law partnerships. Firm names, under our custom, Identify the more active and/or
more senior members or partners of the law firm. A glimpse at the history of
the firms of petitioners and of other law firms in this country would show how
their firm names have evolved and changed from time to time as the
composition of the partnership changed.
The continued use of a firm name after the death of one or more of the partners
designated by it is proper only where sustained by local custom and not where
by custom this purports to identify the active members. ...
There would seem to be a question, under the working of the Canon, as to the
propriety of adding the name of a new partner and at the same time retaining
that of a deceased partner who was never a partner with the new one. (H.S.
Drinker, op. cit., supra, at pp. 207208) (Emphasis supplied).
The possibility of deception upon the public, real or consequential, where the
name of a deceased partner continues to be used cannot be ruled out. A person
in search of legal counsel might be guided by the familiar ring of a distinguished
name appearing in a firm title.
E. Petitioners argue that U.S. Courts have consistently allowed the continued
use of a deceased partner's name in the firm name of law partnerships. But that
is so because it is sanctioned by custom.
In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d
733) which petitioners Salazar, et al. quoted in their memorandum, the New
York Supreme Court sustained the use of the firm name Alexander & Green
even if none of the present ten partners of the firm bears either name because
the practice was sanctioned by custom and did not offend any statutory
provision or legislative policy and was adopted by agreement of the parties. The
Court stated therein:
The practice sought to be proscribed has the sanction of custom and offends no
statutory provision or legislative policy. Canon 33 of the Canons of Professional
Ethics of both the American Bar Association and the New York State Bar
Association provides in part as follows: "The continued use of the name of a
deceased or former partner, when permissible by local custom is not unethical,
but care should be taken that no imposition or deception is practiced through
this use." There is no question as to local custom. Many firms in the city use the
names of deceased members with the approval of other attorneys, bar
associations and the courts. The Appellate Division of the First Department has
considered the matter and reached the conclusion that such practice should not
be prohibited. (Emphasis supplied)
xxx xxx xxx
Neither the Partnership Law nor the Penal Law prohibits the practice in
question. The use of the firm name herein is also sustainable by reason of
agreement between the partners.
Not so in this jurisdiction where there is no local custom that sanctions the
practice. Custom has been defined as a rule of conduct formed by repetition of
acts, uniformly observed (practiced) as a social rule, legally binding and
obligatory. Courts take no judicial notice of custom. A custom must be proved
as a fact, according to the rules of evidence. A local custom as a source of right
cannot be considered by a court of justice unless such custom is properly
established by competent evidence like any other fact. We find such proof of
the existence of a local custom, and of the elements requisite to constitute the
same, wanting herein. Merely because something is done as a matter of practice
does not mean that Courts can rely on the same for purposes of adjudication as
a juridical custom. Juridical custom must be differentiated from social custom.
The former can supplement statutory law or be applied in the absence of such
statute. Not so with the latter.
Moreover, judicial decisions applying or interpreting the laws form part of the
legal system. When the Supreme Court in the Deen and Perkins cases issued its
Resolutions directing lawyers to desist from including the names of deceased
partners in their firm designation, it laid down a legal rule against which no
custom or practice to the contrary, even if proven, can prevail. This is not to
speak of our civil law which clearly ordains that a partnership is dissolved by
the death of any partner. Custom which are contrary to law, public order or
public policy shall not be countenanced.
The practice of law is intimately and peculiarly related to the administration of
justice and should not be considered like an ordinary "money-making trade."
... It is of the essence of a profession that it is practiced in a spirit of public
service. A trade ... aims primarily at personal gain; a profession at the exercise
of powers beneficial to mankind. If, as in the era of wide free opportunity, we
think of free competitive self-assertion as the highest good, lawyer and grocer
and farmer may seem to be freely competing with their fellows in their calling
in order each to acquire as much of the world's good as he may within the
allowed him by law. But the member of a profession does not regard himself as
in competition with his professional brethren. He is not bartering his services as
is the artisan nor exchanging the products of his skill and learning as the farmer
sells wheat or corn. There should be no such thing as a lawyers' or physicians'
strike. The best service of the professional man is often rendered for no
equivalent or for a trifling equivalent and it is his pride to do what he does in a
way worthy of his profession even if done with no expectation of reward, This
spirit of public service in which the profession of law is and ought to be
exercised is a prerequisite of sound administration of justice according to law.
The other two elements of a profession, namely, organization and pursuit of a
learned art have their justification in that they secure and maintain that spirit.
In fine, petitioners' desire to preserve the Identity of their firms in the eyes of
the public must bow to legal and ethical impediment.
ACCORDINGLY, the petitions filed herein are denied and petitioners advised
to drop the names "SYCIP" and "OZAETA" from their respective firm names.
Those names may, however, be included in the listing of individuals who have
been partners in their firms indicating the years during which they served as
such.
SO ORDERED.
Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero and De Castro, JJ.,
concur
Fernando, C.J. and Abad Santos, J., took no part.
Separate Opinions
FERNANDO, C.J., concurring:
The petitions are denied, as there are only four votes for granting them, seven
of the Justices being of the contrary view, as explained in the plurality opinion
of Justice Ameurfina Melencio-Herrera. It is out of delicadeza that the
undersigned did not participate in the disposition of these petitions, as the law
office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the
partnership of Quisumbing, Sycip, and Quisumbing, the senior partner, the late
Ramon Quisumbing, being the father-in-law of the undersigned, and the most
junior partner then, Norberto J. Quisumbing, being his brother- in-law. For the
record, the undersigned wishes to invite the attention of all concerned, and not
only of petitioners, to the last sentence of the opinion of Justice Ameurfina
Melencio-Herrera: 'Those names [Sycip and Ozaeta] may, however, be included
in the listing of individual’s wtes
AQUINO, J., dissenting:
I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano,
Hernandez & Castillo, in their petition of June 10, 1975, prayed for authority to
continue the use of that firm name, notwithstanding the death of Attorney
Alexander Sycip on May 5, 1975 (May he rest in peace). He was the founder of
the firm which was originally known as the Sycip Law Office.
On the other hand, the seven surviving partners of the law firm, Ozaeta,
Romulo, De Leon, Mabanta & Reyes, in their petition of August 13, 1976,
prayed that they be allowed to continue using the said firm name
notwithstanding the death of two partners, former Justice Roman Ozaeta and
his son, Herminio, on May 1, 1972 and February 14, 1976, respectively.
They alleged that the said law firm was a continuation of the Ozaeta Law Office
which was established in 1957 by Justice Ozaeta and his son and that, as to the
said law firm, the name Ozaeta has acquired an institutional and secondary
connotation.
Article 1840 of the Civil Code, which speaks of the use by the partnership of
the name of a deceased partner as part of the partnership name, is cited to justify
the petitions. Also invoked is the canon that the continued use by a law firm of
the name of a deceased partner, "when permissible by local custom, is not
unethical" as long as "no imposition or deception is practiced through this use"
(Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the condition that it be
indicated in the letterheads of the two firms (as the case may be) that Alexander
Sycip, former Justice Ozaeta and Herminio Ozaeta are dead or the period when
they served as partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of the names of
their deceased founders is to retain the clients who had customarily sought the
legal services of Attorneys Sycip and Ozaeta and to benefit from the goodwill
attached to the names of those respected and esteemed law practitioners. That
is a legitimate motivation.
The retention of their names is not illegal per se. That practice was followed
before the war by the law firm of James Ross. Notwithstanding the death of
Judge Ross the founder of the law firm of Ross, Lawrence, Selph and
Carrascoso, his name was retained in the firm name with an indication of the
year when he died. No one complained that the retention of the name of Judge
Ross in the firm name was illegal or unethical.
unethical" as long as "no imposition or deception is practised through this use"
(Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the condition that it be
indicated in the letterheads of the two firms (as the case may be) that Alexander
Sycip, former Justice Ozaeta and Herminio Ozaeta are dead or the period when
they served as partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of the names of
their deceased founders is to retain the clients who had customarily sought the
legal services of Attorneys Sycip and Ozaeta and to benefit from the goodwill
attached to the names of those respected and esteemed law practitioners. That
is a legitimate motivation.
The retention of their names is not illegal per se. That practice was followed
before the war by the law firm of James Ross. Notwithstanding the death of
Judge Ross the founder of the law firm of Ross, Lawrence, Selph and
Carrascoso, his name was retained in the firm name with an indication of the
year when he died. No one complained that the retention of the name of Judge
Ross in the firm name was illegal or unethical.
10th
EN BANC
[G.R. No. L-63915. December 29, 1986.]
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT
OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. (MABINI), Petitioners, v. HON. JUAN C. TUVERA.
in his capacity as Executive Assistant to the President, HON. JOAQUIN
VENUS, in his capacity as Deputy Executive Assistant to the President,
MELQUIADES P. DE LA CRUZ, ETC., ET AL., Respondents.
SYLLABUS
FERNAN, J., concurring:
1. CIVIL LAW; EFFECT AND APPLICATION OF LAWS;
ARTICLE 2, CIVIL CODE; PUBLICATION OF LAWS MADE
TO ENSURE CONSTITUTIONAL RIGHT TO DUE PROCESS
AND TO INFORMATION. — The categorical statement by this
Court on the need for publication before any law be made effective
seeks to prevent abuses on the part if the lawmakers and, at the time,
ensure to the people their constitutional right to due process and to
information on matter of public concern.
RESOLUTION
CRUZ, J.:
Due process was invoked by the petitioners in demanding the disclosure or a
number of presidential decrees which they claimed had not been published as
required by law. The government argued that while publication was necessary
as a rule, it was not so when it was "otherwise provided," as when the decrees
themselves declared that they were to become effective immediately upon their
approval. In the decision of this case on April 24, 1985, the Court affirmed the
necessity for the publication of some of these decrees, declaring in the
dispositive portion as follows:
"WHEREFORE, the Court hereby orders respondents to publish to the Official
Gazette all unpublished presidential issuances which are of general application,
and unless so published, they shall have no binding force and effect."
The petitioners are now before us again, this time to move for
reconsideration/clarification of that decision. 1 Specifically, they ask the
following questions:
1. What is meant by "law of public nature" or "general applicability" ?
2. Must a distinction be made between laws of general applicability and laws
which are not?
3. What is meant by "publication" ?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no
distinction between laws of general applicability and those which are not; that
publication means complete publication; and that the publication must be made
forthwith in the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed first that
the motion was a request for an advisory opinion and should therefore be
dismissed, and, on the merits, that the clause "unless it is otherwise provided"
in Article 2 of the Civil Code meant that the publication required therein was
not always imperative; that publication, when necessary, did not have to be
made in the Official Gazette; and that in any case the subject decision was
concurred in only by three justices and consequently not binding. This elicited
a Reply 4 refuting these arguments. Came next the February Revolution and the
Court required the new Solicitor General to file a Rejoinder in view of the
supervening events, under Rule 3, Section 18, of the Rules of Court.
Responding, he submitted that issuances intended only for the interval
administration of a government agency or for particular persons did not have to
be published; that publication when necessary must be in full and in the Official
Gazette; and that, however, the decision under reconsideration was not binding
because it was not supported by eight members of this Court. 5
The subject of contention is Article 2 of the Civil Code providing as follows:
"ART. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such publication."
After a careful study of this provision and of the arguments of the parties, both
on the original petition and on the instant motion, we have come to the
conclusion, and so hold, that the clause "unless it is otherwise provided" refers
to the date of effectivity and not to the requirement of publication itself, which
cannot in any event be omitted. This clause does not mean that the legislature
may make the law effective immediately upon approval, or on any other date,
without its previous publication.
Publication is indispensable in every case, but the legislature may in its
discretion provide that the usual fifteen-day period shall be shortened or
extended. An example, as pointed out by the present Chief Justice in his
separate concurrence in the original decision, 6 is the Civil Code which did not
become effective after fifteen days from its publication in the Official Gazette
but "one year after such publication." The general rule did not apply because it
was "otherwise provided."
It is not correct to say that under the disputed clause publication may be
dispensed with altogether. The reason is that such omission would offend due
process insofar as it would deny the public knowledge of the laws that are
supposed to govern it. Surely, if the legislature could validly provide that a law
shall become effective immediately upon its approval notwithstanding the lack
of publication (or after an unreasonably short period after publication), it is not
unlikely that persons not aware of it would be prejudiced as a result; and they
would be so not because of a failure to comply with it but simply because they
did not know of its existence. Significantly, this is not true only of penal laws
as is commonly supposed. One can think of many non-penal measures, like a
law on prescription, which must also be communicated to the persons they may
affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the
law, which of course presupposes that the law has been published if the
presumption is to have any legal justification at all. It is no less important to
remember that Section 6 of the Bill of Rights recognizes "the right of the people
to information on matters of public concern," and this certainly applies to,
among others, and indeed especially, the legislative enactments of the
government.
The term "laws" should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit
there are some that do not apply to them directly. An example is a law granting
citizenship to a particular individual, like a relative of President Marcos who
was decreed instant naturalization. It surely cannot be said that such a law does
not affect the public although it unquestionably does not apply directly to all
the people. The subject of such law is a matter of public interest which any
member of the body politic may question in the political forums or, if he is a
proper party, even in the courts of justice. In fact, a law without any bearing on
the public would be invalid as an intrusion of privacy or as class legislation or
as an ultra vires act of the legislature. To be valid, the law must invariably affect
the public interest even if it might be directly applicable only to one individual,
or some of the people only, and not to the public as a whole.
We hold therefore that all statutes, including those of local application and
private laws, shall be published as a condition for their effectivity, which shall
begin fifteen days after publication unless a different effectivity date is fixed by
the legislature.
Covered by this rule are presidential decrees and executive orders promulgated
by the President in the exercise of legislative powers whenever the same are
validly delegated by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also be published if
their purpose is to enforce or implement existing law pursuant also to a valid
delegation.
Interpretative regulations and those merely internal in nature, that is, regulating
only the personnel of the administrative agency and not the public, need not be
published. Neither is publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.
Accordingly, even the charter of a city must be published notwithstanding that
it applies to only a portion of the national territory and directly affects only the
inhabitants of that place. All presidential decrees must be published, including
even, say, those naming a public place after a favored individual or exempting
him from certain prohibitions or requirements. The circulars issued by the
Monetary Board must be published if they are meant not merely to interpret but
to "fill in the details" of the Central Bank Act which that body is supposed to
enforce.
However, no publication is required of the instructions issued by, say, the
Minister of Social Welfare on the case studies to be made in petitions for
adoption or the rules laid down by the head of a government agency on the
assignments or workload of his personnel or the wearing of office uniforms.
Parenthetically, municipal ordinances are not covered by this rule but by the
Local Government Code.
We agree that the publication must be in full or it is no publication at all since
its purpose is to inform the public of the contents of the laws. As correctly
pointed out by the petitioners, the mere mention of the number of the
presidential decree, the title of such decree, its whereabouts (e.g., "with
Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement
of the Official Gazette cannot satisfy the publication requirement. This is not
even substantial compliance. This was the manner, incidentally, in which the
General Appropriations Act for FY 1975, a presidential decree undeniably of
general applicability and interest, was "published" by the Marcos
administration. 7 The evident purpose was to withhold rather than disclose
information on this vital law.
Coming now to the original decision, it is true that only four justices were
categorically for publication in the Official Gazette 8 and that six others felt that
publication could be made elsewhere as long as the people were sufficiently
informed. 9 One reserved his vote 10 and another merely acknowledged the
need for due publication without indicating where it should be made, 11 It is
therefore necessary for the present membership of this Court to arrive at a clear
consensus on this matter and to lay down a binding decision supported by the
necessary vote.
There is much to be said of the view that the publication need not be made in
the Official Gazette, considering its erratic releases and limited readership.
Undoubtedly, newspapers of general circulation could better perform the
function of communicating the laws to the people as such periodicals are more
easily available, have a wider readership, and come out regularly. The trouble,
though, is that this kind of publication is not the one required or authorized by
existing law. As far as we know, no amendment has been made of Article 2 of
the Civil Code. The Solicitor General has not pointed to such a law, and we
have no information that it exists. If it does, it obviously has not yet been
published.
At any rate, this Court is not called upon to rule upon the wisdom of a law or to
repeal or modify it if we find it impractical. That is not our function. That
function belongs to the legislature. Our task is merely to interpret and apply the
law as conceived and approved by the political departments of the government
in accordance with the prescribed procedure. Consequently, we have no choice
but to pronounce that under Article 2 of the Civil Code, the publication of laws
must be made in the Official Gazette, and not elsewhere, as a requirement for
their effectivity after fifteen days from such publication or after a different
period provided by the legislature.
We also hold that the publication must be made forthwith, or at least as soon as
possible, to give effect to the law pursuant to the said Article 2. There is that
possibility, of course, although not suggested by the parties that a law could be
rendered unenforceable by a mere refusal of the executive, for whatever reason,
to cause its publication as required. This is a matter, however, that we do not
need to examine at this time.
Finally, the claim of the former Solicitor General that the instant motion is a
request for an advisory opinion is untenable, to say the least, and deserves no
further comment.
The days of the secret laws and the unpublished decrees are over. This is once
again an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if our
country is to remain democratic, with sovereignty residing in the people and all
government authority emanating from them.
Although they have delegated the power of legislation, they retain the authority
to review the work of their delegates and to ratify or reject it according to their
lights, through their freedom of expression and their right of suffrage. This they
cannot do if the acts of the legislature are concealed.
Laws must come out in the open in the clear light of the sun instead of skulking
in the shadows with their dark, deep secrets. Mysterious pronouncements and
rumored rules cannot be recognized as binding unless their existence and
contents are confirmed by a valid publication intended to make full disclosure
and give proper notice to the people. The furtive law is like a scabbarded saber
that cannot feint, parry or cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall
immediately upon their approval, or as soon thereafter as possible, be published
in full in the Official Gazette, to become effective only after fifteen days from
their publication, or on another date specified by the legislature, in accordance
with Article 2 of the Civil Code.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez,
Jr ., and Paras, JJ., concur.
Separate Opinions
FERNAN, J., concurring:
While concurring in the Court’s opinion penned by my distinguished colleague,
Mr. Justice Isagani A. Cruz, I would like to add a few observations. Even as a
Member of the defunct Batasang Pambansa, I took a strong stand against the
insidious manner by which the previous dispensation had promulgated and
made effective thousands of decrees, executive orders, letters of instructions,
etc. Never has the law-making power which traditionally belongs to the
legislature been used and abused to satisfy the whims and caprices of a one-
man legislative mill as it happened in the past regime. Thus, in those days, it
was not surprising to witness the sad spectacle of two presidential decrees
bearing the same number, although covering two different subject matters. In
point is the case of two presidential decrees bearing number 1686 issued on
March 19, 1980, one granting Philippine citizenship to Michael M. Keon, the
then President’s nephew and the other imposing a tax on every motor vehicle
equipped with air-conditioner. This was further exacerbated by the issuance of
PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to
basketball players Jeffrey Moore and Dennis George Still.
The categorical statement by this Court on the need for publication before any
law may be made effective seeks to prevent abuses on the part of the lawmakers
and, at the same time, ensures to the people their constitutional right to due
process and to information on matters of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr. Justice
Isagani A. Cruz. At the same time, I wish to add a few statements to reflect my
understanding of what the Court is saying.
A statute which by its terms provides for its coming into effect immediately
upon approval thereof, is properly interpreted as coming into effect immediately
upon publication thereof in the Official Gazette as provided in Article 2 of the
Civil Code. Such statute, in other words, should not be regarded as purporting
literally to come into effect immediately upon its approval or enactment and
without need of publication. For so to interpret such statute would be to collide
with the constitutional obstacle posed by the due process clause. The
enforcement of prescriptions which are both unknown to and unknowable by
those subjected to the statute, has been throughout history a common tool of
tyrannical governments. Such application and enforcement constitutes at
bottom a negation of the fundamental principle of legality in the relations
between a government and its people.
At the same time, it is clear that the requirement of publication of a statute in
the Official Gazette, as distinguished from any other medium such as a
newspaper of general circulation, is embodied in a statutory norm and is not a
constitutional command. The statutory norm is set out in Article 2 of the Civil
Code and is supported and reinforced by Section 1 of Commonwealth Act No.
638 and Section 35 of the Revised Administrative Code. A specification of the
Official Gazette as the prescribed medium of publication may therefore be
changed. Article 2 of the Civil Code could, without creating a constitutional
problem, be amended by a subsequent statute providing, for instance, for
publication either in the Official Gazette or in a newspaper of general
circulation in the country. Until such an amendatory statute is in fact enacted,
Article 2 of the Civil Code must be obeyed and publication effected in the
Official Gazette and not in any other medium.
11th
EN BANC
[A.C. No. 5307. August 9, 2000.]
IN RE: VICENTE Y. BAYANI.
RESOLUTION
PARDO, J.:
The case before us arose when Atty. Vicente Y. Bayani failed to submit proof
of service of the appellant’s brief on the Solicitor General in G. R. No. 115079
and the consequent inability of the latter to file the appellees brief.
On August 09, 1999, the Supreme Court referred Atty. Bayani’s failure to
submit the procedural requirement to the Integrated Bar of the Philippines for
investigation, report and recommendation.
On September 27, 1999, IBP Commissioner Victoria Gonzalez-De Los Reyes
sent a letter to Atty. Bayani requiring him to submit his comment within five
(5) days from receipt of the letter.
However, the letter was returned to the IBP with the notation "Return to Sender-
Moved." 4
Thus, in her report and recommendation dated January 25, 2000, Commissioner
Gonzalez-De Los Reyes recommended Atty. Bayani’s suspension as follows:
"IN VIEW OF THE FOREGOING, the undersigned Commissioner
recommends that Atty. Vicente Bayani, for his violation of Rule 18.03 of the
Canon 18 of the Code of Professional Responsibility, be SUSPENDED from
the practice of the law profession for a period of three (3) months and until the
time he complies with the Order of the Supreme Court."
On March 18, 2000, the Board of Governors of the Integrated Bar of the
Philippines issued a resolution adopting and approving the report and
recommendation of the investigating commissioner.
We concur.
A lawyer shall not neglect a legal matter entrusted to him as his negligence in
connection therewith shall render him liable.
Atty. Bayani’s failure to submit proof of service of appellant’s brief on the
Solicitor General in G. R. No. 115079 and his failure to submit the required
comment manifest willful disobedience to the lawful orders of the Supreme
Court, a clear violation of the canons of professional ethics.
It appears that Atty. Bayani has fallen short of the circumspection required of a
member of the Bar. A counsel must always remember that his actions or
omissions are binding on his clients. A lawyer owes his client the exercise of
utmost prudence and capability in that representation.
Further, lawyers are expected to be acquainted with the rudiments of law and
legal procedure, and anyone who deals with them has the right to expect not just
a good amount of professional learning and competence but also a whole-
hearted fealty to his client’s cause.
WHEREFORE, the Court finds Atty. Vicente Y. Bayani remiss in his sworn
duty to his client, to the Court and the Bar. He is thus SUSPENDED from the
practice of law for a period of three (3) months and until the time he complies
with the Order of the Supreme Court to submit the required proof of service in
G. R. No. 115079.
Let a copy of this decision be entered in the personal records of respondent as
an attorney and as a member of the Integrated Bar, and furnish the Bar
Confidant, the Integrated Bar of the Philippines, with copies thereof and the
Court Administrator for circulation to all courts in the country.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban
Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon,
Jr., JJ., concur.
Bellosillo, J., abroad on official business.
12th
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 10-10-4-SC March 8, 2011
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING
INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY
OF THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF
PLAGIARISM AND MISREPRESENTATION IN THE SUPREME
COURT"
DECISION
LEONARDO-DE CASTRO, J.:
For disposition of the Court are the various submissions of the 37 respondent
law professors1 in response to the Resolution dated October 19, 2010 (the Show
Cause Resolution), directing them to show cause why they should not be
disciplined as members of the Bar for violation of specific provisions of the
Code of Professional Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly dockets
this as an administrative matter, not a special civil action for indirect contempt
under Rule 71 of the Rules of Court, contrary to the dissenting opinion of
Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the said
October 19, 2010 Show Cause Resolution. Neither is this a disciplinary
proceeding grounded on an allegedly irregularly concluded finding of indirect
contempt as intimated by Associate Justice Conchita Carpio Morales (Justice
Morales) in her dissenting opinions to both the October 19, 2010 Show Cause
Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in
mind, the Court finds that with the exception of one respondent whose
compliance was adequate and another who manifested he was not a member of
the Philippine Bar, the submitted explanations, being mere denials and/or
tangential to the issues at hand, are decidedly unsatisfactory. The proffered
defenses even more urgently behoove this Court to call the attention of
respondent law professors, who are members of the Bar, to the relationship of
their duties as such under the Code of Professional Responsibility to their civil
rights as citizens and academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case
are as follows:
CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land
and promote respect for law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of
the law or at lessening confidence in the legal system.
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of
any in court; nor shall he mislead, or allow the Court to be misled by any
artifice.
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the
contents of paper, the language or the argument of opposing counsel, or the text
of a decision or authority, or knowingly cite as law a provision already rendered
inoperative by repeal or amendment, or assert as a fact that which has not been
proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse
them to defeat the ends of justice.
CANON 11 — A lawyer shall observe and maintain the respect due to the courts
and to judicial officers and should insist on similar conduct by others.
RULE 11.05 A lawyer shall submit grievances against a Judge to the proper
authorities only.
CANON 13 — A lawyer shall rely upon the merits of his cause and refrain from
any impropriety which tends to influence, or gives the appearance of
influencing the court.
Established jurisprudence will undeniably support our view that when lawyers
speak their minds, they must ever be mindful of their sworn oath to observe
ethical standards of their profession, and in particular, avoid foul and abusive
language to condemn the Supreme Court, or any court for that matter, for a
decision it has rendered, especially during the pendency of a motion for such
decision’s reconsideration. The accusation of plagiarism against a member of
this Court is not the real issue here but rather this plagiarism issue has been used
to deflect everyone’s attention from the actual concern of this Court to
determine by respondents’ explanations whether or not respondent members of
the Bar have crossed the line of decency and acceptable professional conduct
and speech and violated the Rules of Court through improper intervention or
interference as third parties to a pending case. Preliminarily, it should be
stressed that it was respondents themselves who called upon the Supreme Court
to act on their Statement,2 which they formally submitted, through Dean Marvic
M.V.F. Leonen (Dean Leonen), for the Court’s proper disposition. Considering
the defenses of freedom of speech and academic freedom invoked by the
respondents, it is worth discussing here that the legal reasoning used in the past
by this Court to rule that freedom of expression is not a defense in
administrative cases against lawyers for using intemperate speech in open court
or in court submissions can similarly be applied to respondents’ invocation of
academic freedom. Indeed, it is precisely because respondents are not merely
lawyers but lawyers who teach law and mould the minds of young aspiring
attorneys that respondents’ own non-observance of the Code of Professional
Responsibility, even if purportedly motivated by the purest of intentions, cannot
be ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents’ actuations, it is
apropos to revisit the factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo
(Justice Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230)
was promulgated. On May 31, 2010, the counsel for Vinuya, et al. (the "Malaya
Lolas"), filed a Motion for Reconsideration of the Vinuya decision, raising
solely the following grounds:
I. Our own constitutional and jurisprudential histories reject this Honorable
Courts’ (sic) assertion that the Executive’s foreign policy prerogatives are
virtually unlimited; precisely, under the relevant jurisprudence and
constitutional provisions, such prerogatives are proscribed by international
human rights and humanitarian standards, including those provided for in the
relevant international conventions of which the Philippines is a party.
II. This Honorable Court has confused diplomatic protection with the broader,
if fundamental, responsibility of states to protect the human rights of its citizens
– especially where the rights asserted are subject of erga omnes obligations and
pertain to jus cogens norms.
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr.
(Atty. Roque) and Romel Regalado Bagares (Atty. Bagares), filed a
Supplemental Motion for Reconsideration in G.R. No. 162230, where they
posited for the first time their charge of plagiarism as one of the grounds for
reconsideration of the Vinuya decision. Among other arguments, Attys. Roque
and Bagares asserted that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS
HONORABLE COURT’S JUDGMENT OF APRIL 28, 2010 TO
PLAGIARIZE AT LEAST THREE SOURCES – AN ARTICLE PUBLISHED
IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A
BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005
AND AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN
RESERVE JOURNAL OF INTERNATIONAL LAW – AND MAKE IT
APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT’S
ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN
TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE
FOR THE PETITION’S CLAIMS.
They also claimed that "[i]n this controversy, the evidence bears out the fact not
only of extensive plagiarism but of (sic) also of twisting the true intents of the
plagiarized sources by the ponencia to suit the arguments of the assailed
Judgment for denying the Petition."
According to Attys. Roque and Bagares, the works allegedly plagiarized in the
Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-Decent’s
article "A Fiduciary Theory of Jus Cogens;" (2) Christian J. Tams’ book
Enforcing Erga Omnes Obligations in International Law; and (3) Mark Ellis’
article "Breaking the Silence: On Rape as an International Crime."
On the same day as the filing of the Supplemental Motion for Reconsideration
on July 19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an
article, entitled "SC justice plagiarized parts of ruling on comfort women," on
the Newsbreak website.The same article appeared on the GMA News TV
website also on July 19, 2010.13
On July 22, 2010, Atty. Roque’s column, entitled "Plagiarized and Twisted,"
appeared in the Manila Standard Today. In the said column, Atty. Roque
claimed that Prof. Evan Criddle, one of the authors purportedly not properly
acknowledged in the Vinuya decision, confirmed that his work, co-authored
with Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof.
Criddle’s response to the post by Julian Ku regarding the news report on the
alleged plagiarism in the international law blog, Opinio Juris. Prof. Criddle
responded to Ku’s blog entry in this wise:
The newspaper’s [plagiarism] claims are based on a motion for reconsideration
filed yesterday with the Philippine Supreme Court yesterday. The motion is
available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-
in-the-supreme-court/
The motion suggests that the Court’s decision contains thirty-four sentences and
citations that are identical to sentences and citations in my 2009 YJIL article
(co-authored with Evan Fox-Decent). Professor Fox-Decent and I were unaware
of the petitioners’ [plagiarism] allegations until after the motion was filed today.
Speaking for myself, the most troubling aspect of the court’s jus cogens
discussion is that it implies that the prohibitions against crimes against
humanity, sexual slavery, and torture are not jus cogens norms. Our article
emphatically asserts the opposite. The Supreme Court’s decision is available
here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the
Court in reply to the charge of plagiarism contained in the Supplemental Motion
for Reconsideration.
In a letter dated July 23, 2010, another purportedly plagiarized author in the
Vinuya decision, Dr. Mark Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has come to my attention in the last
few days.
Much as I regret to raise this matter before your esteemed Court, I am
compelled, as a question of the integrity of my work as an academic and as an
advocate of human rights and humanitarian law, to take exception to the
possible unauthorized use of my law review article on rape as an international
crime in your esteemed Court’s Judgment in the case of Vinuya et al. v.
Executive Secretary et al. (G.R. No. 162230, Judgment of 28 April 2010).
My attention was called to the Judgment and the issue of possible plagiarism by
the Philippine chapter of the Southeast Asia Media Legal Defence Initiative
(SEAMLDI),19 an affiliate of the London-based Media Legal Defence
Initiative (MLDI), where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in
footnote 65, pp. 27-28, of the said Judgment of your esteemed Court. I am also
concerned that your esteemed Court may have misread the arguments I made in
the article and employed them for cross purposes. This would be ironic since
the article was written precisely to argue for the appropriate legal remedy for
victims of war crimes, genocide, and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve
Journal of International Law in 2006 has been made available to your esteemed
Court. I trust that your esteemed Court will take the time to carefully study the
arguments I made in the article.
I would appreciate receiving a response from your esteemed Court as to the
issues raised by this letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed
the Committee on Ethics and Ethical Standards (the Ethics Committee) pursuant
to Section 13, Rule 2 of the Internal Rules of the Supreme Court. In an En Banc
Resolution also dated July 27, 2010, the Court referred the July 22, 2010 letter
of Justice Del Castillo to the Ethics Committee. The matter was subsequently
docketed as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares
to comment on the letter of Justice Del Castillo.21
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring
Integrity: A Statement by the Faculty of the University of the Philippines
College of Law on the Allegations of Plagiarism and Misrepresentation in the
Supreme Court" (the Statement), was posted in Newsbreak’s website22 and on
Atty. Roque’s blog.23 A report regarding the statement also appeared on
various on-line news sites, such as the GMA News TV24 and the Sun Star25
sites, on the same date. The statement was likewise posted at the University of
the Philippines College of Law’s bulletin board allegedly on August 10, 201026
and at said college’s website.27
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the
University of the Philippines College of Law Faculty (UP Law faculty) to the
Court, through Chief Justice Renato C. Corona (Chief Justice Corona). The
cover letter dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through: Hon. Renato C. Corona
Chief Justice
Subject: Statement of faculty
from the UP College of Law
on the Plagiarism in the case of
Vinuya v Executive Secretary
Your Honors:
We attach for your information and proper disposition a statement signed by
thirty[-]eight (38)28 members of the faculty of the UP College of Law. We hope
that its points could be considered by the Supreme Court en banc.
Respectfully,
(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement attached to the above-quoted letter did not contain
the actual signatures of the alleged signatories but only stated the names of 37
UP Law professors with the notation (SGD.) appearing beside each name. For
convenient reference, the text of the UP Law faculty Statement is reproduced
here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war. After they courageously
came out with their very personal stories of abuse and suffering as "comfort
women", waited for almost two decades for any meaningful relief from their
own government as well as from the government of Japan, got their hopes up
for a semblance of judicial recourse in the case of Vinuya v. Executive
Secretary, G.R. No. 162230 (28 April 2010), they only had these hopes crushed
by a singularly reprehensible act of dishonesty and misrepresentation by the
Highest Court of the land.
It is within this frame that the Faculty of the University of the Philippines
College of Law views the charge that an Associate Justice of the Supreme Court
committed plagiarism and misrepresentation in Vinuya v. Executive Secretary.
The plagiarism and misrepresentation are not only affronts to the individual
scholars whose work have been appropriated without correct attribution, but
also a serious threat to the integrity and credibility of the Philippine Judicial
System.
In common parlance, ‘plagiarism’ is the appropriation and misrepresentation of
another person’s work as one’s own. In the field of writing, it is cheating at best,
and stealing at worst. It constitutes a taking of someone else’s ideas and
expressions, including all the effort and creativity that went into committing
such ideas and expressions into writing, and then making it appear that such
ideas and expressions were originally created by the taker. It is dishonesty, pure
and simple. A judicial system that allows plagiarism in any form is one that
allows dishonesty. Since all judicial decisions form part of the law of the land,
to allow plagiarism in the Supreme Court is to allow the production of laws by
dishonest means. Evidently, this is a complete perversion and falsification of
the ends of justice.
A comparison of the Vinuya decision and the original source material shows
that the ponente merely copied select portions of other legal writers’ works and
interspersed them into the decision as if they were his own, original work.
Under the circumstances, however, because the Decision has been promulgated
by the Court, the Decision now becomes the Court’s and no longer just the
ponente’s. Thus the Court also bears the responsibility for the Decision. In the
absence of any mention of the original writers’ names and the publications from
which they came, the thing speaks for itself.
So far there have been unsatisfactory responses from the ponente of this case
and the spokesman of the Court.
It is argued, for example, that the inclusion of the footnotes from the original
articles is a reference to the ‘primary’ sources relied upon. This cursory
explanation is not acceptable, because the original authors’ writings and the
effort they put into finding and summarizing those primary sources are precisely
the subject of plagiarism. The inclusion of the footnotes together with portions
of their writings in fact aggravates, instead of mitigates, the plagiarism since it
provides additional evidence of a deliberate intention to appropriate the original
authors’ work of organizing and analyzing those primary sources.
ensuring the position of the Supreme Court as the Final Arbiter of all
controversies: a position that requires competence and integrity completely
above any and all reproach, in accordance with the exacting demands of judicial
and professional ethics.
With these considerations, and bearing in mind the solemn duties and trust
reposed upon them as teachers in the profession of Law, it is the opinion of the
Faculty of the University of the Philippine College of Law that:

It is also argued that the Members of the Court cannot be expected to be familiar (1) The plagiarism committed in the case of Vinuya v. Executive Secretary is
with all legal and scholarly journals. This is also not acceptable, because unacceptable, unethical and in breach of the high standards of moral conduct
personal unfamiliarity with sources all the more demands correct and careful and judicial and professional competence expected of the Supreme Court;
attribution and citation of the material relied upon. It is a matter of diligence
and competence expected of all Magistrates of the Highest Court of the Land. (2) Such a fundamental breach endangers the integrity and credibility of the
entire Supreme Court and undermines the foundations of the Philippine judicial
But a far more serious matter is the objection of the original writers, Professors system by allowing implicitly the decision of cases and the establishment of
Evan Criddle and Evan Fox-Descent, that the High Court actually misrepresents legal precedents through dubious means;
the conclusions of their work entitled "A Fiduciary Theory of Jus Cogens," the
main source of the plagiarized text. In this article they argue that the (3) The same breach and consequent disposition of the Vinuya case does
classification of the crimes of rape, torture, and sexual slavery as crimes against violence to the primordial function of the Supreme Court as the ultimate
humanity have attained the status of jus cogens, making it obligatory upon the dispenser of justice to all those who have been left without legal or equitable
State to seek remedies on behalf of its aggrieved citizens. Yet, the Vinuya recourse, such as the petitioners therein;
decision uses parts of the same article to arrive at the contrary conclusion. This
(4) In light of the extremely serious and far-reaching nature of the dishonesty
exacerbates the intellectual dishonesty of copying works without attribution by
and to save the honor and dignity of the Supreme Court as an institution, it is
transforming it into an act of intellectual fraud by copying works in order to
necessary for the ponente of Vinuya v. Executive Secretary to resign his
mislead and deceive.
position, without prejudice to any other sanctions that the Court may consider
The case is a potential landmark decision in International Law, because it deals appropriate;
with State liability and responsibility for personal injury and damage suffered
(5) The Supreme Court must take this opportunity to review the manner by
in a time of war, and the role of the injured parties’ home States in the pursuit
which it conducts research, prepares drafts, reaches and finalizes decisions in
of remedies against such injury or damage. National courts rarely have such
order to prevent a recurrence of similar acts, and to provide clear and concise
opportunities to make an international impact. That the petitioners were Filipino
guidance to the Bench and Bar to ensure only the highest quality of legal
"comfort women" who suffered from horrific abuse during the Second World
research and writing in pleadings, practice, and adjudication.
War made it incumbent on the Court of last resort to afford them every
solicitude. But instead of acting with urgency on this case, the Court delayed its Malcolm Hall, University of the Philippines College of Law, Quezon City, 27
resolution for almost seven years, oblivious to the deaths of many of the July 2010.
petitioners seeking justice from the Court. When it dismissed the Vinuya
petition based on misrepresented and plagiarized materials, the Court decided (SGD.) MARVIC M.V.F. LEONEN
this case based on polluted sources. By so doing, the Supreme Court added Dean and Professor of Law
insult to injury by failing to actually exercise its "power to urge and exhort the (SGD.) FROILAN M. BACUNGAN
Executive Department to take up the claims of the Vinuya petitioners. Its Dean (1978-1983) (SGD.) PACIFICO A. AGABIN
callous disposition, coupled with false sympathy and nonchalance, belies a Dean (1989-1995)
more alarming lack of concern for even the most basic values of decency and (SGD.) MERLIN M. MAGALLONA
respect. The reputation of the Philippine Supreme Court and the standing of the Dean (1995-1999) (SGD.) SALVADOR T. CARLOTA
Philippine legal profession before other Judiciaries and legal systems are truly Dean (2005-2008) and Professor of Law
at stake. REGULAR FACULTY
(SGD.) CARMELO V. SISON
The High Court cannot accommodate less than absolute honesty in its decisions Professor (SGD.) JAY L. BATONGBACAL
and cannot accept excuses for failure to attain the highest standards of conduct Assistant Professor
imposed upon all members of the Bench and Bar because these undermine the (SGD.) PATRICIA R.P. SALVADOR DAWAY
very foundation of its authority and power in a democratic society. Given the Associate Dean and Associate Professor (SGD.) EVELYN (LEO) D.
Court’s recent history and the controversy that surrounded it, it cannot allow BATTAD
the charges of such clear and obvious plagiarism to pass without sanction as this Assistant Professor
would only further erode faith and confidence in the judicial system. And in (SGD.) DANTE B. GATMAYTAN
light of the significance of this decision to the quest for justice not only of Associate Professor (SGD.) GWEN G. DE VERA
Filipino women, but of women elsewhere in the world who have suffered the Assistant Professor
horrors of sexual abuse and exploitation in times of war, the Court cannot coldly (SGD.) THEODORE O. TE
deny relief and justice to the petitioners on the basis of pilfered and Assistant Professor (SGD.) SOLOMON F. LUMBA
misinterpreted texts. Assistant Professor
(SGD.) FLORIN T. HILBAY
The Court cannot regain its credibility and maintain its moral authority without
Assistant Professor (SGD.) ROMMEL J. CASIS
ensuring that its own conduct, whether collectively or through its Members, is
Assistant Professor
beyond reproach. This necessarily includes ensuring that not only the content,
LECTURERS
but also the processes of preparing and writing its own decisions, are credible
and beyond question. The Vinuya Decision must be conscientiously reviewed (SGD.) JOSE GERARDO A. ALAMPAY (SGD.) JOSE C. LAURETA
and not casually cast aside, if not for the purpose of sanction, then at least for (SGD.) ARTHUR P. AUTEA (SGD.) DINA D. LUCENARIO
the purpose of reflection and guidance. It is an absolutely essential step toward (SGD.) ROSA MARIA J. BAUTISTA (SGD.) OWEN J. LYNCH
the establishment of a higher standard of professional care and practical (SGD.) MARK R. BOCOBO (SGD.) ANTONIO M. SANTOS
scholarship in the Bench and Bar, which are critical to improving the system of (SGD.) DAN P. CALICA (SGD.) VICENTE V. MENDOZA
administration of justice in the Philippines. It is also a very crucial step in
 (SGD.) TRISTAN A. CATINDIG (SGD.) RODOLFO NOEL S.
QUIMBO
(SGD.) SANDRA MARIE O. CORONEL (SGD.) GMELEEN FAYE B.
TOMBOC
(SGD.) ROSARIO O. GALLO (SGD.) NICHOLAS FELIX L. TY
(SGD.) CONCEPCION L. JARDELEZA (SGD.) EVALYN G. URSUA
(SGD.) ANTONIO G.M. LA VIÑA (SGD.) RAUL T. VASQUEZ
(SGD.) CARINA C. LAFORTEZA (SGD.) SUSAN D.
VILLANUEVA29
(Underscoring supplied.)
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made
known his sentiments on the alleged plagiarism issue to the Court.30 We quote
Prof. Tams’ letter here:
Glasgow, 18 August 2010
Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)
Hon. Renato C. Corona, Chief Justice
Your Excellency,
My name is Christian J. Tams, and I am a professor of international law at the
University of Glasgow. I am writing to you in relation to the use of one of my
publications in the above-mentioned judgment of your Honourable Court.
The relevant passage of the judgment is to be found on p. 30 of your Court’s
Judgment, in the section addressing the concept of obligations erga omnes. As
the table annexed to this letter shows, the relevant sentences were taken almost
word by word from the introductory chapter of my book Enforcing Obligations
Erga Omnes in International Law (Cambridge University Press 2005). I note
that there is a generic reference to my work in footnote 69 of the Judgment, but
as this is in relation to a citation from another author (Bruno Simma) rather than
with respect to the substantive passages reproduced in the Judgment, I do not
think it can be considered an appropriate form of referencing.
I am particularly concerned that my work should have been used to support the
Judgment’s cautious approach to the erga omnes concept. In fact, a most cursory
reading shows that my book’s central thesis is precisely the opposite: namely
that the erga omnes concept has been widely accepted and has a firm place in
contemporary international law. Hence the introductory chapter notes that
"[t]he present study attempts to demystify aspects of the ‘very mysterious’
concept and thereby to facilitate its implementation" (p. 5). In the same vein,
the concluding section notes that "the preceding chapters show that the concept
is now a part of the reality of international law, established in the jurisprudence
of courts and the practice of States" (p. 309).
With due respect to your Honourable Court, I am at a loss to see how my work
should have been cited to support – as it seemingly has – the opposite approach.
More generally, I am concerned at the way in which your Honourable Court’s
Judgment has drawn on scholarly work without properly acknowledging it.
On both aspects, I would appreciate a prompt response from your Honourable
Court.
I remain
Sincerely yours
(Sgd.)
Christian J. Tams31
In the course of the submission of Atty. Roque and Atty. Bagares’ exhibits
during the August 26, 2010 hearing in the ethics case against Justice Del
Castillo, the Ethics Committee noted that Exhibit "J" (a copy of the Restoring
Integrity Statement) was not signed but merely reflected the names of certain
faculty members with the letters (SGD.) beside the names. Thus, the Ethics
Committee directed Atty. Roque to present the signed copy of the said
Statement within three days from the August 26 hearing.32
It was upon compliance with this directive that the Ethics Committee was given
a copy of the signed UP Law Faculty Statement that showed on the signature
pages the names of the full roster of the UP Law Faculty, 81 faculty members
in all. Indubitable from the actual signed copy of the Statement was that only
37 of the 81 faculty members appeared to have signed the same. However, the
37 actual signatories to the Statement did not include former Supreme Court
Associate Justice Vicente V. Mendoza (Justice Mendoza) as represented in the
previous copies of the Statement submitted by Dean Leonen and Atty. Roque.
It also appeared that Atty. Miguel R. Armovit (Atty. Armovit) signed the
Statement although his name was not included among the signatories in the
previous copies submitted to the Court. Thus, the total number of ostensible
signatories to the Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the same
Statement, having been formally submitted by Dean Leonen on August 11,
2010, was already under consideration by the Court.33
In a Resolution dated October 19, 2010, the Court en banc made the following
observations regarding the UP Law Faculty Statement:
Notably, while the statement was meant to reflect the educators’ opinion on the
allegations of plagiarism against Justice Del Castillo, they treated such
allegation not only as an established fact, but a truth. In particular, they
expressed dissatisfaction over Justice Del Castillo’s explanation on how he
cited the primary sources of the quoted portions and yet arrived at a contrary
conclusion to those of the authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise concern
for the Court. The opening sentence alone is a grim preamble to the institutional
attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v.
Executive Secretary as a reprehensible act of dishonesty and misrepresentation
by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of
deliberately delaying the resolution of the said case, its dismissal on the basis
of "polluted sources," the Court’s alleged indifference to the cause of petitioners
[in the Vinuya case], as well as the supposed alarming lack of concern of the
members of the Court for even the most basic values of decency and respect.34
x x x. (Underscoring ours.)
In the same Resolution, the Court went on to state that:
While most agree that the right to criticize the judiciary is critical to maintaining
a free and democratic society, there is also a general consensus that healthy
criticism only goes so far. Many types of criticism leveled at the judiciary cross
the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition
of its business in an orderly manner, free from outside interference obstructive
of its functions and tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty’s less
than objective comments except to discredit the April 28, 2010 Decision in the
Vinuya case and undermine the Court’s honesty, integrity and competence in
addressing the motion for its reconsideration. As if the case on the comfort
women’s claims is not controversial enough, the UP Law faculty would fan the
flames and invite resentment against a resolution that would not reverse the said
decision. This runs contrary to their obligation as law professors and officers of
the Court to be the first to uphold the dignity and authority of this Court, to
which they owe fidelity according to the oath they have taken as attorneys, and
not to promote distrust in the administration of justice.35 x x x. (Citations
omitted; emphases and underscoring supplied.)
Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan,
Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V.
Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te,
Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De
Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel
R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P.
Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo,
Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C.
Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos,
Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T.
Vasquez, Susan D. Villanueva and Dina D. Lucenario to show cause, within ten
(10) days from receipt of the copy of the Resolution, why they should not be
disciplined as members of the Bar for violation of Canons 1,36 11 and 13 and
Rules 1.02 and 11.05 of the Code of Professional Responsibility.37
Dean Leonen was likewise directed to show cause within the same period why
he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01,
10.02 and 10.03 for submitting through his letter dated August 10, 2010, during
the pendency of G.R. No. 162230 and of the investigation before the Ethics
Committee, for the consideration of the Court en banc, a dummy which is not a
true and faithful reproduction of the UP Law Faculty Statement.38
In the same Resolution, the present controversy was docketed as a regular
administrative matter.
Summaries of the Pleadings Filed by Respondents in Response to the October
19, 2010 Show Cause Resolution
On November 19, 2010, within the extension for filing granted by the Court,
respondents filed the following pleadings:
(1) Compliance dated November 18, 2010 by counsels for 35 of the 37
respondents, excluding Prof. Owen Lynch and Prof. Raul T. Vasquez, in
relation to the charge of violation of Canons 1, 11 and 13 and Rules 1.02 and
11.05 of the Code of Professional Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by Prof. Rosa Maria
T. Juan-Bautista in relation to the same charge in par. (1);
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul T. Vasquez
in relation to the same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean Leonen, in
relation to the charge of violation of Canon 10, Rules 10.01, 10.02 and 10.03;
and
(5) Manifestation dated November 19, 2010 by counsel for Prof. Owen Lynch.
Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and
Prof. Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19,
2010 a common compliance which was signed by their respective counsels (the
Common Compliance). In the "Preface" of said Common Compliance,
respondents stressed that "[they] issued the Restoring Integrity Statement in the
discharge of the ‘solemn duties and trust reposed upon them as teachers in the
profession of law,’ and as members of the Bar to speak out on a matter of public
concern and one that is of vital interest to them."39 They likewise alleged that
"they acted with the purest of intentions" and pointed out that "none of them
was involved either as party or counsel"40 in the Vinuya case. Further,
respondents "note with concern" that the Show Cause Resolution’s findings and
conclusions were "a prejudgment – that respondents indeed are in contempt,
have breached their obligations as law professors and officers of the Court, and
have violated ‘Canons [1], 11 and 13 and Rules 1.02 and 11.05 of the Code of
Professional Responsibility."
By way of explanation, the respondents emphasized the following points:
(a) Respondents’ alleged noble intentions
In response to the charges of failure to observe due respect to legal processes
and the courts and of tending to influence, or giving the appearance of
influencing the Court in the issuance of their Statement, respondents assert that
their intention was not to malign the Court but rather to defend its integrity and
credibility and to ensure continued confidence in the legal system. Their noble
motive was purportedly evidenced by the portion of their Statement "focusing
on constructive action." Respondents’ call in the Statement for the Court "to
provide clear and concise guidance to the Bench and Bar to ensure only the
highest quality of legal research and writing in adjudication," was reputedly "in
keeping with strictures enjoining lawyers to ‘participate in the development of
the legal system by initiating or supporting efforts in law reform and in the
improvement of the administration of justice’" (under Canon 4 of the Code of
Professional Responsibility) and to "promote respect for the law and legal
processes" (under Canon 1, id.). Furthermore, as academics, they allegedly have
a "special interest and duty to vigilantly guard against plagiarism and
misrepresentation because these unwelcome occurrences have a profound
impact in the academe, especially in our law schools."
Respondents further "[called] on this Court not to misconstrue the Restoring
Integrity Statement as an ‘institutional attack’ x x x on the basis of its first and
ninth paragraphs." They further clarified that at the time the Statement was
allegedly drafted and agreed upon, it appeared to them the Court "was not going
to take any action on the grave and startling allegations of plagiarism and
misrepresentation." According to respondents, the bases for their belief were (i)
the news article published on July 21, 2010 in the Philippine Daily Inquirer
wherein Court Administrator Jose Midas P. Marquez was reported to have said
that Chief Justice Corona would not order an inquiry into the matter; and (ii)
the July 22, 2010 letter of Justice Del Castillo which they claimed "did nothing
but to downplay the gravity of the plagiarism and misrepresentation charges."
Respondents claimed that it was their perception of the Court’s indifference to
the dangers posed by the plagiarism allegations against Justice Del Castillo that
impelled them to urgently take a public stand on the issue.
(b) The "correctness" of respondents’ position that Justice Del Castillo
committed plagiarism and should be held accountable in accordance with the
standards of academic writing
A significant portion of the Common Compliance is devoted to a discussion of
the merits of respondents’ charge of plagiarism against Justice Del Castillo.
Relying on University of the Philippines Board of Regents v. Court of Appeals
and foreign materials and jurisprudence, respondents essentially argue that their
position regarding the plagiarism charge against Justice Del Castillo is the
correct view and that they are therefore justified in issuing their Restoring
Integrity Statement. Attachments to the Common Compliance included, among
others: (i) the letter dated October 28, 2010 of Peter B. Payoyo, LL.M, Ph.D.,
sent to Chief Justice Corona through Justice Sereno, alleging that the Vinuya
decision likewise lifted without proper attribution the text from a legal article
by Mariana Salazar Albornoz that appeared in the Anuario Mexicano De
Derecho Internacional and from an International Court of Justice decision; and
(ii) a 2008 Human Rights Law Review Article entitled "Sexual Orientation,
Gender Identity and International Human Rights Law" by Michael O’Flaherty
and John Fisher, in support of their charge that Justice Del Castillo also lifted
passages from said article without proper attribution, but this time, in his
ponencia in Ang Ladlad LGBT Party v. Commission on Elections.
(c) Respondents’ belief that they are being "singled out" by the Court when
others have likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the plagiarism
and misrepresentation allegations are legitimate public issues." They identified
various published reports and opinions, in agreement with and in opposition to
the stance of respondents, on the issue of plagiarism, specifically:
(i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero;
(ii) Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer
on July 24, 2010;
(iii) Editorial of the Philippine Daily Inquirer published on July 25, 2010;
(iv) Letter dated July 22, 2010 of Justice Del Castillo published in the Philippine
Star on July 30, 2010;
(v) Column of Former Intellectual Property Office Director General Adrian
Cristobal, Jr. published in the Business Mirror on August 5, 2010;
(vi) Column of Former Chief Justice Artemio Panganiban published in the
Philippine Daily Inquirer on August 8, 2010;
(vii) News report regarding Senator Francis Pangilinan’s call for the resignation
of Justice Del Castillo published in the Daily Tribune and the Manila Standard
Today on July 31, 2010;
(viii) News reports regarding the statement of Dean Cesar Villanueva of the
Ateneo de Manila University School of Law on the calls for the resignation of
Justice Del Castillo published in The Manila Bulletin, the Philippine Star and
the Business Mirror on August 11, 2010;
(ix) News report on expressions of support for Justice Del Castillo from a
former dean of the Pamantasan ng Lungsod ng Maynila, the Philippine
Constitutional Association, the Judges Association of Bulacan and the
Integrated Bar of the Philippines – Bulacan Chapter published in the Philippine
Star on August 16, 2010; and
(x) Letter of the Dean of the Liceo de Cagayan University College of Law
published in the Philippine Daily Inquirer on August 10, 2010.
In view of the foregoing, respondents alleged that this Court has singled them
out for sanctions and the charge in the Show Cause Resolution dated October
19, 2010 that they may have violated specific canons of the Code of
Professional Responsibility is unfair and without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents briefly
discussed their position that in issuing their Statement, "they should be seen as
not only to be performing their duties as members of the Bar, officers of the
court, and teachers of law, but also as citizens of a democracy who are
constitutionally protected in the exercise of free speech."66 In support of this
contention, they cited United States v. Bustos, In re: Atty. Vicente Raul
Almacen, and In the Matter of Petition for Declaratory Relief Re:
Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections.
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that
their Statement was also issued in the exercise of their academic freedom as
teachers in an institution of higher learning. They relied on Section 5 of the
University of the Philippines Charter of 2008 which provided that "[t]he
national university has the right and responsibility to exercise academic
freedom." They likewise adverted to Garcia v. The Faculty Admission
Committee, Loyola School of Theology70 which they claimed recognized the
extent and breadth of such freedom as to encourage a free and healthy
discussion and communication of a faculty member’s field of study without fear
of reprisal. It is respondents’ view that had they remained silent on the
plagiarism issue in the Vinuya decision they would have "compromised [their]
integrity and credibility as teachers; [their silence] would have created a culture
and generation of students, professionals, even lawyers, who would lack the
competence and discipline for research and pleading; or, worse, [that] their
silence would have communicated to the public that plagiarism and
misrepresentation are inconsequential matters and that intellectual integrity has
no bearing or relevance to one’s conduct."
In closing, respondents’ Common Compliance exhorted this Court to consider
the following portion of the dissenting opinion of Justice George A. Malcolm
in Salcedo v. Hernandez, to wit:
Respect for the courts can better be obtained by following a calm and impartial
course from the bench than by an attempt to compel respect for the judiciary by
chastising a lawyer for a too vigorous or injudicious exposition of his side of a
case. The Philippines needs lawyers of independent thought and courageous
bearing, jealous of the interests of their clients and unafraid of any court, high
or low, and the courts will do well tolerantly to overlook occasional intemperate
language soon to be regretted by the lawyer which affects in no way the
outcome of a case.
On the matter of the reliefs to which respondents believe they are entitled, the
Common Compliance stated, thus:
WHEREFORE:
A. Respondents, as citizens of a democracy, professors of law, members of the
Bar and officers of the Court, respectfully pray that:
1. the foregoing be noted; and
2. the Court reconsider and reverse its adverse findings in the Show Cause
Resolution, including its conclusions that respondents have: [a] breached their
"obligation as law professors and officers of the Court to be the first to uphold
the dignity and authority of this Court, … and not to promote distrust in the
administration of justice;" and [b] committed "violations of Canons 10, 11, and
13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."
B. In the event the Honorable Court declines to grant the foregoing prayer,
respondents respectfully pray, in the alternative, and in assertion of their due
process rights, that before final judgment be rendered:
1. the Show Cause Resolution be set for hearing;
2. respondents be given a fair and full opportunity to refute and/or address the
findings and conclusions of fact in the Show Cause Resolution (including
especially the finding and conclusion of a lack of malicious intent), and in that
connection, that appropriate procedures and schedules for hearing be adopted
and defined that will allow them the full and fair opportunity to require the
production of and to present testimonial, documentary, and object evidence
bearing on the plagiarism and misrepresentation issues in Vinuya v. Executive
Secretary (G.R. No. 162230, April 28, 2010) and In the Matter of the Charges
of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo (A.M. No.
10-7-17-SC); and
3. respondents be given fair and full access to the transcripts, records, drafts,
reports and submissions in or relating to, and accorded the opportunity to cross-
examine the witnesses who were or could have been called in In The Matter of
the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del
Castillo (A.M. No. 10-7-17-SC).
Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista
Although already included in the Common Compliance, Prof. Rosa Maria T.
Juan-Bautista (Prof. Juan-Bautista) filed a separate Compliance and
Reservation (the Bautista Compliance), wherein she adopted the allegations in
the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her
to challenge the findings and conclusions in the Show Cause Resolution.
Furthermore, "[i]f the Restoring Integrity Statement can be considered indirect
contempt, under Section 3 of Rule 71 of the Rules of Court, such may be
punished only after charge and hearing."
Prof. Juan-Bautista stressed that respondents signed the Statement "in good
faith and with the best intentions to protect the Supreme Court by asking one
member to resign." For her part, Prof. Juan-Bautista intimated that her deep
disappointment and sadness for the plight of the Malaya Lolas were what
motivated her to sign the Statement.
On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence77
which in her view highlighted that academic freedom is constitutionally
guaranteed to institutions of higher learning such that schools have the freedom
to determine for themselves who may teach, what may be taught, how lessons
shall be taught and who may be admitted to study and that courts have no
authority to interfere in the schools’ exercise of discretion in these matters in
the absence of grave abuse of discretion. She claims the Court has encroached
on the academic freedom of the University of the Philippines and other
universities on their right to determine how lessons shall be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of
respondents’ constitutional right to freedom of expression that can only be
curtailed when there is grave and imminent danger to public safety, public
morale, public health or other legitimate public interest.
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate
Compliance by registered mail (the Vasquez Compliance). In said Compliance,
Prof. Vasquez narrated the circumstances surrounding his signing of the
Statement. He alleged that the Vinuya decision was a topic of conversation
among the UP Law faculty early in the first semester (of academic year 2010-
11) because it reportedly contained citations not properly attributed to the
sources; that he was shown a copy of the Statement by a clerk of the Office of
the Dean on his way to his class; and that, agreeing in principle with the main
theme advanced by the Statement, he signed the same in utmost good faith.
In response to the directive from this Court to explain why he should not be
disciplined as a member of the Bar under the Show Cause Resolution, Prof.
Vasquez also took the position that a lawyer has the right, like all citizens in a
democratic society, to comment on acts of public officers. He invited the
attention of the Court to the following authorities: (a) In re: Vicente Sotto;80
(b) In re: Atty. Vicente Raul Almacen; and (c) a discussion appearing in
American Jurisprudence (AmJur) 2d. He claims that he "never had any intention
to unduly influence, nor entertained any illusion that he could or should
influence, [the Court] in its disposition of the Vinuya case" and that "attacking
the integrity of [the Court] was the farthest thing on respondent’s mind when
he signed the Statement." Unlike his colleagues, who wish to impress upon this
Court the purported homogeneity of the views on what constitutes plagiarism,
Prof. Vasquez stated in his Compliance that:
13. Before this Honorable Court rendered its Decision dated 12 October 2010,
some espoused the view that willful and deliberate intent to commit plagiarism
is an essential element of the same. Others, like respondent, were of the opinion
that plagiarism is committed regardless of the intent of the perpetrator, the way
it has always been viewed in the academe. This uncertainty made the issue a
fair topic for academic discussion in the College. Now, this Honorable Court
has ruled that plagiarism presupposes deliberate intent to steal another’s work
and to pass it off as one’s own. (Emphases supplied.)
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he
"might have been remiss in correctly assessing the effects of such language [in
the Statement] and could have been more careful." He ends his discussion with
a respectful submission that with his explanation, he has faithfully complied
with the Show Cause Resolution and that the Court will rule that he had not in
any manner violated his oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen regarding the charge of violation of
Canon 10 in relation to his submission of a "dummy" of the UP Law Faculty
Statement to this Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions
of the UP Law Faculty Statement, which he described as follows:
"Restoring Integrity I" which bears the entire roster of the faculty of the UP
College of Law in its signing pages, and the actual signatures of the thirty-seven
(37) faculty members subject of the Show Cause Resolution. A copy was filed
with the Honorable Court by Roque and Butuyan on 31 August 2010 in A.M.
No. 10-7-17-SC.
"Restoring Integrity II" which does not bear any actual physical signature, but
which reflects as signatories the names of thirty-seven (37) members of the
faculty with the notation "(SGD.)". A copy of Restoring Integrity II was
publicly and physically posted in the UP College of Law on 10 August 2010.
Another copy of Restoring Integrity II was also officially received by the
Honorable Court from the Dean of the UP College of Law on 11 August 2010,
almost three weeks before the filing of Restoring Integrity I.
"Restoring Integrity III" which is a reprinting of Restoring Integrity II, and
which presently serves as the official file copy of the Dean’s Office in the UP
College of Law that may be signed by other faculty members who still wish to.
It bears the actual signatures of the thirty- seven original signatories to
Restoring Integrity I above their printed names and the notation "(SGD.") and,
in addition, the actual signatures of eight (8) other members of the faculty above
their handwritten or typewritten names.
For purposes of this discussion, only Restoring Integrity I and Restoring
Integrity II are relevant since what Dean Leonen has been directed to explain
are the discrepancies in the signature pages of these two documents. Restoring
Integrity III was never submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and came
about, Dean Leonen alleged, thus:
2.2 On 27 July 2010, sensing the emergence of a relatively broad agreement in
the faculty on a draft statement, Dean Leonen instructed his staff to print the
draft and circulate it among the faculty members so that those who wished to
may sign. For this purpose, the staff encoded the law faculty roster to serve as
the printed draft’s signing pages. Thus did the first printed draft of the Restoring
Integrity Statement, Restoring Integrity I, come into being.
2.3. As of 27 July 2010, the date of the Restoring Integrity Statement, Dean
Leonen was unaware that a Motion for Reconsideration of the Honorable
Court’s Decision in Vinuya vs. Executive Secretary (G.R. No. 162230, 28 April
2010) had already been filed, or that the Honorable Court was in the process of
convening its Committee on Ethics and Ethical Standards in A.M. No. 10-7-17-
SC.
2.4. Dean Leonen’s staff then circulated Restoring Integrity I among the
members of the faculty. Some faculty members visited the Dean’s Office to sign
the document or had it brought to their classrooms in the College of Law, or to
their offices or residences. Still other faculty members who, for one reason or
another, were unable to sign Restoring Integrity I at that time, nevertheless
conveyed to Dean Leonen their assurances that they would sign as soon as they
could manage.
2.5. Sometime in the second week of August, judging that Restoring Integrity I
had been circulated long enough, Dean Leonen instructed his staff to reproduce
the statement in a style and manner appropriate for posting in the College of
Law. Following his own established practice in relation to significant public
issuances, he directed them to reformat the signing pages so that only the names
of those who signed the first printed draft would appear, together with the
corresponding "(SGD.)" note following each name. Restoring Integrity II thus
came into being.
According to Dean Leonen, the "practice of eliminating blanks opposite or
above the names of non-signatories in the final draft of significant public
issuances, is meant not so much for aesthetic considerations as to secure the
integrity of such documents."89 He likewise claimed that "[p]osting statements
with blanks would be an open invitation to vandals and pranksters."
With respect to the inclusion of Justice Mendoza’s name as among the
signatories in Restoring Integrity II when in fact he did not sign Restoring
Integrity I, Dean Leonen attributed the mistake to a miscommunication
involving his administrative officer. In his Compliance, he narrated that:
2.7. Upon being presented with a draft of Restoring Integrity II with the
reformatted signing pages, Dean Leonen noticed the inclusion of the name of
Justice Mendoza among the "(SGD.)" signatories. As Justice Mendoza was not
among those who had physically signed Restoring Integrity I when it was
previously circulated, Dean Leonen called the attention of his staff to the
inclusion of the Justice’s name among the "(SGD.)" signatories in Restoring
Integrity II.
2.8. Dean Leonen was told by his administrative officer that she had spoken to
Justice Mendoza over the phone on Friday, 06 August 2010. According to her,
Justice Mendoza had authorized the dean to sign the Restoring Integrity
Statement for him as he agreed fundamentally with its contents. Also according
to her, Justice Mendoza was unable at that time to sign the Restoring Integrity
Statement himself as he was leaving for the United States the following week.
It would later turn out that this account was not entirely accurate. (Underscoring
and italics supplied.)
Dean Leonen claimed that he "had no reason to doubt his administrative officer,
however, and so placed full reliance on her account" as "[t]here were indeed
other faculty members who had also authorized the Dean to indicate that they
were signatories, even though they were at that time unable to affix their
signatures physically to the document."
However, after receiving the Show Cause Resolution, Dean Leonen and his
staff reviewed the circumstances surrounding their effort to secure Justice
Mendoza’s signature. It would turn out that this was what actually transpired:
2.22.1. On Friday, 06 August 2010, when the dean’s staff talked to Justice
Mendoza on the phone, he [Justice Mendoza] indeed initially agreed to sign the
Restoring Integrity Statement as he fundamentally agreed with its contents.
However, Justice Mendoza did not exactly say that he authorized the dean to
sign the Restoring Integrity Statement. Rather, he inquired if he could authorize
the dean to sign it for him as he was about to leave for the United States. The
dean’s staff informed him that they would, at any rate, still try to bring the
Restoring Integrity Statement to him.
2.22.2. Due to some administrative difficulties, Justice Mendoza was unable to
sign the Restoring Integrity Statement before he left for the U.S. the following
week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice Mendoza
when he went to the College to teach on 24 September 2010, a day after his
arrival from the U.S. This time, Justice Mendoza declined to sign.
According to the Dean:
2.23. It was only at this time that Dean Leonen realized the true import of the
call he received from Justice Mendoza in late September. Indeed, Justice
Mendoza confirmed that by the time the hard copy of the Restoring Integrity
Statement was brought to him shortly after his arrival from the U.S., he declined
to sign it because it had already become controversial. At that time, he predicted
that the Court would take some form of action against the faculty. By then, and
under those circumstances, he wanted to show due deference to the Honorable
Court, being a former Associate Justice and not wishing to unduly aggravate
the situation by signing the Statement.95 (Emphases supplied.)
With respect to the omission of Atty. Armovit’s name in the signature page of
Restoring Integrity II when he was one of the signatories of Restoring Integrity
I and the erroneous description in Dean Leonen’s August 10, 2010 letter that
the version of the Statement submitted to the Court was signed by 38 members
of the UP Law Faculty, it was explained in the Compliance that:
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when
it was circulated to him. However, his name was inadvertently left out by Dean
Leonen’s staff in the reformatting of the signing pages in Restoring Integrity II.
The dean assumed that his name was still included in the reformatted signing
pages, and so mentioned in his cover note to Chief Justice Corona that 38
members of the law faculty signed (the original 37 plus Justice Mendoza.)
Dean Leonen argues that he should not be deemed to have submitted a dummy
of the Statement that was not a true and faithful reproduction of the same. He
emphasized that the main body of the Statement was unchanged in all its three
versions and only the signature pages were not the same. This purportedly is
merely "reflective of [the Statement’s] essential nature as a ‘live’ public
manifesto meant to continuously draw adherents to its message, its signatory
portion is necessarily evolving and dynamic x x x many other printings of [the
Statement] may be made in the future, each one reflecting the same text but with
more and more signatories." Adverting to criminal law by analogy, Dean
Leonen claims that "this is not an instance where it has been made to appear in
a document that a person has participated in an act when the latter did not in
fact so participate" for he "did not misrepresent which members of the faculty
of the UP College of Law had agreed with the Restoring Integrity Statement
proper and/or had expressed their desire to be signatories thereto."
In this regard, Dean Leonen believes that he had not committed any violation
of Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor misrepresent
to the Court the contents of the Statement or the identities of the UP Law faculty
members who agreed with, or expressed their desire to be signatories to, the
Statement. He also asserts that he did not commit any violation of Rule 10.03
as he "coursed [the Statement] through the appropriate channels by transmitting
the same to Honorable Chief Justice Corona for the latter’s information and
proper disposition with the hope that its points would be duly considered by the
Honorable Court en banc."100 Citing Rudecon Management Corporation v.
Camacho,101 Dean Leonen posits that the required quantum of proof has not
been met in this case and that no dubious character or motivation for the act
complained of existed to warrant an administrative sanction for violation of the
standard of honesty provided for by the Code of Professional
Responsibility.102
Dean Leonen ends his Compliance with an enumeration of nearly identical
reliefs as the Common Compliance, including the prayers for a hearing and for
access to the records, evidence and witnesses allegedly relevant not only in this
case but also in A.M. No. 10-7-17-SC, the ethical investigation involving
Justice Del Castillo.
Manifestation of Prof. Owen Lynch (Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is
not a member of the Philippine bar; but he is a member of the bar of the State
of Minnesota. He alleges that he first taught as a visiting professor at the UP
College of Law in 1981 to 1988 and returned in the same capacity in 2010. He
further alleges that "[h]e subscribes to the principle, espoused by this Court and
the Supreme Court of the United States, that ‘…[d]ebate on public issues should
be uninhibited, robust and wide open and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public
officials." In signing the Statement, he believes that "the right to speak means
the right to speak effectively." Citing the dissenting opinions in Manila Public
School Teachers Association v. Laguio, Jr., Prof. Lynch argued that "[f]or
speech to be effective, it must be forceful enough to make the intended
recipients listen" and "[t]he quality of education would deteriorate in an
atmosphere of repression, when the very teachers who are supposed to provide
an example of courage and self-assertiveness to their pupils can speak only in
timorous whispers." Relying on the doctrine in In the Matter of Petition for
Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v.
Commission on Elections, Prof. Lynch believed that the Statement did not pose
any danger, clear or present, of any substantive evil so as to remove it from the
protective mantle of the Bill of Rights (i.e., referring to the constitutional
guarantee on free speech). He also stated that he "has read the Compliance of
the other respondents to the Show Cause Resolution" and that "he signed the
Restoring Integrity Statement for the same reasons they did."
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions of
respondents, the material issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom of
expression?
2.) Does the Show Cause Resolution violate respondents’ academic freedom as
law professors?
3.) Do the submissions of respondents satisfactorily explain why they should
not be disciplined as Members of the Bar under Canons 1, 11, and 13 and Rules
1.02 and 11.05 of the Code of Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he
should not be disciplined as a Member of the Bar under Canon 10, Rules 10.01,
10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution set for hearing
and in relation to such hearing, are respondents entitled to require the
production or presentation of evidence bearing on the plagiarism and
misrepresentation issues in the Vinuya case (G.R. No. 162230) and the ethics
case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to
the records and transcripts of, and the witnesses and evidence presented, or
could have been presented, in the ethics case against Justice Del Castillo (A.M.
No. 10-7-17-SC)?
DISCUSSION
The Show Cause Resolution does not deny respondents their freedom of
expression.
It is respondents’ collective claim that the Court, with the issuance of the Show
Cause Resolution, has interfered with respondents’ constitutionally mandated
right to free speech and expression. It appears that the underlying assumption
behind respondents’ assertion is the misconception that this Court is denying
them the right to criticize the Court’s decisions and actions, and that this Court
seeks to "silence" respondent law professors’ dissenting view on what they
characterize as a "legitimate public issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly
show that it was neither the fact that respondents had criticized a decision of the
Court nor that they had charged one of its members of plagiarism that motivated
the said Resolution. It was the manner of the criticism and the contumacious
language by which respondents, who are not parties nor counsels in the Vinuya
case, have expressed their opinion in favor of the petitioners in the said pending
case for the "proper disposition" and consideration of the Court that gave rise
to said Resolution. The Show Cause Resolution painstakingly enumerated the
statements that the Court considered excessive and uncalled for under the
circumstances surrounding the issuance, publication, and later submission to
this Court of the UP Law faculty’s Restoring Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief that
Justice Del Castillo was guilty of plagiarism but rather their expression of that
belief as "not only as an established fact, but a truth"111 when it was "[o]f
public knowledge [that there was] an ongoing investigation precisely to
determine the truth of such allegations."112 It was also pointed out in the Show
Cause Resolution that there was a pending motion for reconsideration of the
Vinuya decision.113 The Show Cause Resolution made no objections to the
portions of the Restoring Integrity Statement that respondents claimed to be
"constructive" but only asked respondents to explain those portions of the said
Statement that by no stretch of the imagination could be considered as fair or
constructive, to wit:
Beyond this, however, the statement bore certain remarks which raise concern
for the Court. The opening sentence alone is a grim preamble to the institutional
attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v.
Executive Secretary as a reprehensible act of dishonesty and misrepresentation
by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of
deliberately delaying the resolution of the said case, its dismissal on the basis
of "polluted sources," the Court’s alleged indifference to the cause of petitioners
[in the Vinuya case], as well as the supposed alarming lack of concern of the
members of the Court for even the most basic values of decency and respect.114
x x x. (Underscoring ours.)
To be sure, the Show Cause Resolution itself recognized respondents’ freedom
of expression when it stated that:
While most agree that the right to criticize the judiciary is critical to maintaining
a free and democratic society, there is also a general consensus that healthy
criticism only goes so far. Many types of criticism leveled at the judiciary cross
the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition
of its business in an orderly manner, free from outside interference obstructive
of its functions and tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty’s less
than objective comments except to discredit the April 28, 2010 Decision in the
Vinuya case and undermine the Court’s honesty, integrity and competence in
addressing the motion for its reconsideration. As if the case on the comfort
women’s claims is not controversial enough, the UP Law faculty would fan the
flames and invite resentment against a resolution that would not reverse the said
decision. This runs contrary to their obligation as law professors and officers of
the Court to be the first to uphold the dignity and authority of this Court, to
which they owe fidelity according to the oath they have taken as attorneys, and
not to promote distrust in the administration of justice.115 x x x. (Citations
omitted; emphases and underscoring supplied.)
Indeed, in a long line of cases, including those cited in respondents’
submissions, this Court has held that the right to criticize the courts and judicial
officers must be balanced against the equally primordial concern that the
independence of the Judiciary be protected from due influence or interference.
In cases where the critics are not only citizens but members of the Bar,
jurisprudence has repeatedly affirmed the authority of this Court to discipline
lawyers whose statements regarding the courts and fellow lawyers, whether
judicial or extrajudicial, have exceeded the limits of fair comment and common
decency.
As early as the 1935 case of Salcedo v. Hernandez,116 the Court found Atty.
Vicente J. Francisco both guilty of contempt and liable administratively for the
following paragraph in his second motion for reconsideration:
We should like frankly and respectfully to make it of record that the resolution
of this court, denying our motion for reconsideration, is absolutely erroneous
and constitutes an outrage to the rights of the petitioner Felipe Salcedo and a
mockery of the popular will expressed at the polls in the municipality of Tiaong,
Tayabas. We wish to exhaust all the means within our power in order that this
error may be corrected by the very court which has committed it, because we
should not want that some citizen, particularly some voter of the municipality
of Tiaong, Tayabas, resort to the press publicly to denounce, as he has a right
to do, the judicial outrage of which the herein petitioner has been the victim,
and because it is our utmost desire to safeguard the prestige of this honorable
court and of each and every member thereof in the eyes of the public. But, at
the same time we wish to state sincerely that erroneous decisions like these,
which the affected party and his thousands of voters will necessarily consider
unjust, increase the proselytes of 'sakdalism' and make the public lose
confidence in the administration of justice.117 (Emphases supplied.)
The highlighted phrases were considered by the Court as neither justified nor
necessary and further held that:
[I]n order to call the attention of the court in a special way to the essential points
relied upon in his argument and to emphasize the force thereof, the many
reasons stated in his said motion were sufficient and the phrases in question
were superfluous. In order to appeal to reason and justice, it is highly improper
and amiss to make trouble and resort to threats, as Attorney Vicente J. Francisco
has done, because both means are annoying and good practice can never
sanction them by reason of their natural tendency to disturb and hinder the free
exercise of a serene and impartial judgment, particularly in judicial matters, in
the consideration of questions submitted for resolution.
There is no question that said paragraph of Attorney Vicente J. Francisco's
motion contains a more or less veiled threat to the court because it is insinuated
therein, after the author shows the course which the voters of Tiaong should
follow in case he fails in his attempt, that they will resort to the press for the
purpose of denouncing, what he claims to be a judicial outrage of which his
client has been the victim; and because he states in a threatening manner with
the intention of predisposing the mind of the reader against the court, thus
creating an atmosphere of prejudices against it in order to make it odious in the
public eye, that decisions of the nature of that referred to in his motion promote
distrust in the administration of justice and increase the proselytes of sakdalism,
a movement with seditious and revolutionary tendencies the activities of which,
as is of public knowledge, occurred in this country a few days ago. This cannot
mean otherwise than contempt of the dignity of the court and disrespect of the
authority thereof on the part of Attorney Vicente J. Francisco, because he
presumes that the court is so devoid of the sense of justice that, if he did not
resort to intimidation, it would maintain its error notwithstanding the fact that
it may be proven, with good reasons, that it has acted erroneously.118
(Emphases supplied.)
Significantly, Salcedo is the decision from which respondents culled their quote
from the minority view of Justice Malcolm. Moreover, Salcedo concerned
statements made in a pleading filed by a counsel in a case, unlike the
respondents here, who are neither parties nor counsels in the Vinuya case and
therefore, do not have any standing at all to interfere in the Vinuya case. Instead
of supporting respondents’ theory, Salcedo is authority for the following
principle:
As a member of the bar and an officer of this court, Attorney Vicente J.
Francisco, as any attorney, is in duty bound to uphold its dignity and authority
and to defend its integrity, not only because it has conferred upon him the high
privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he
now is: a priest of justice (In re Thatcher, 80 Ohio St. Rep., 492, 669), but also
because in so doing, he neither creates nor promotes distrust in the
administration of justice, and prevents anybody from harboring and
encouraging discontent which, in many cases, is the source of disorder, thus
undermining the foundation upon which rests that bulwark called judicial power
to which those who are aggrieved turn for protection and relief.119 (Emphases
supplied.)
Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious
statements in his pleading, by accusing the Court of "erroneous ruling." Here,
the respondents’ Statement goes way beyond merely ascribing error to the
Court.
Other cases cited by respondents likewise espouse rulings contrary to their
position. In re: Atty. Vicente Raul Almacen,120 cited in the Common
Compliance and the Vasquez Compliance, was an instance where the Court
indefinitely suspended a member of the Bar for filing and releasing to the press
a "Petition to Surrender Lawyer’s Certificate of Title" in protest of what he
claimed was a great injustice to his client committed by the Supreme Court. In
the decision, the petition was described, thus:
He indicts this Court, in his own phrase, as a tribunal "peopled by men who are
calloused to our pleas for justice, who ignore without reasons their own
applicable decisions and commit culpable violations of the Constitution with
impunity." His client's he continues, who was deeply aggrieved by this Court's
"unjust judgment," has become "one of the sacrificial victims before the altar of
hypocrisy." In the same breath that he alludes to the classic symbol of justice,
he ridicules the members of this Court, saying "that justice as administered by
the present members of the Supreme Court is not only blind, but also deaf and
dumb." He then vows to argue the cause of his client "in the people's forum,"
so that "the people may know of the silent injustices committed by this Court,"
and that "whatever mistakes, wrongs and injustices that were committed must
never be repeated." He ends his petition with a prayer that
"x x x a resolution issue ordering the Clerk of Court to receive the certificate of
the undersigned attorney and counsellor-at-law IN TRUST with reservation that
at any time in the future and in the event we regain our faith and confidence, we
may retrieve our title to assume the practice of the noblest profession."121
It is true that in Almacen the Court extensively discussed foreign jurisprudence
on the principle that a lawyer, just like any citizen, has the right to criticize and
comment upon actuations of public officers, including judicial authority.
However, the real doctrine in Almacen is that such criticism of the courts,
whether done in court or outside of it, must conform to standards of fairness
and propriety. This case engaged in an even more extensive discussion of the
legal authorities sustaining this view.1awphi1 To quote from that decision:
But it is the cardinal condition of all such criticism that it shall be bona fide,
and shall not spill over the walls of decency and propriety. A wide chasm exists
between fair criticism, on the one hand, and abuse and slander of courts and the
judges thereof, on the other. Intemperate and unfair criticism is a gross violation
of the duty of respect to courts. It is such a misconduct that subjects a lawyer to
disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties which
are not mere flux and ferment. His investiture into the legal profession places
upon his shoulders no burden more basic, more exacting and more imperative
than that of respectful behavior toward the courts. He vows solemnly to conduct
himself "with all good fidelity x x x to the courts;" and the Rules of Court
constantly remind him "to observe and maintain the respect due to courts of
justice and judicial officers." The first canon of legal ethics enjoins him "to
maintain towards the courts a respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the maintenance of its
supreme importance."
As Mr. Justice Field puts it:
"x x x the obligation which attorneys impliedly assume, if they do not by
express declaration take upon themselves, when they are admitted to the Bar, is
not merely to be obedient to the Constitution and laws, but to maintain at all
times the respect due to courts of justice and judicial officers. This obligation is
not discharged by merely observing the rules of courteous demeanor in open
court, but includes abstaining out of court from all insulting language and
offensive conduct toward judges personally for their judicial acts." (Bradley, v.
Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to
the orderly administration of justice. Hence, in the assertion of their clients'
rights, lawyers — even those gifted with superior intellect — are enjoined to
rein up their tempers.
"The counsel in any case may or may not be an abler or more learned lawyer
than the judge, and it may tax his patience and temper to submit to rulings which
he regards as incorrect, but discipline and self-respect are as necessary to the
orderly administration of justice as they are to the effectiveness of an army. The
decisions of the judge must be obeyed, because he is the tribunal appointed to
decide, and the bar should at all times be the foremost in rendering respectful
submission." (In Re Scouten, 40 Atl. 481)
xxxx
In his relations with the courts, a lawyer may not divide his personality so as to
be an attorney at one time and a mere citizen at another. Thus, statements made
by an attorney in private conversations or communications or in the course of a
political campaign, if couched in insulting language as to bring into scorn and
disrepute the administration of justice, may subject the attorney to disciplinary
action.122 (Emphases and underscoring supplied.)
In a similar vein, In re: Vicente Sotto,123 cited in the Vasquez Compliance,
observed that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause,
respecting the same, has always been considered as misbehavior, tending to
obstruct the administration of justice, and subjects such persons to contempt
proceedings. Parties have a constitutional right to have their causes tried fairly
in court, by an impartial tribunal, uninfluenced by publications or public clamor.
Every citizen has a profound personal interest in the enforcement of the
fundamental right to have justice administered by the courts, under the
protection and forms of law, free from outside coercion or interference. x x x.
Mere criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in good faith
may be tolerated; because if well founded it may enlighten the court and
contribute to the correction of an error if committed; but if it is not well taken
and obviously erroneous, it should, in no way, influence the court in reversing
or modifying its decision. x x x.
xxxx
To hurl the false charge that this Court has been for the last years committing
deliberately "so many blunders and injustices," that is to say, that it has been
deciding in favor of one party knowing that the law and justice is on the part of
the adverse party and not on the one in whose favor the decision was rendered,
in many cases decided during the last years, would tend necessarily to
undermine the confidence of the people in the honesty and integrity of the
members of this Court, and consequently to lower or degrade the administration
of justice by this Court. The Supreme Court of the Philippines is, under the
Constitution, the last bulwark to which the Filipino people may repair to obtain
relief for their grievances or protection of their rights when these are trampled
upon, and if the people lose their confidence in the honesty and integrity of the
members of this Court and believe that they cannot expect justice therefrom,
they might be driven to take the law into their own hands, and disorder and
perhaps chaos might be the result. As a member of the bar and an officer of the
courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity
and authority of this Court, to which he owes fidelity according to the oath he
has taken as such attorney, and not to promote distrust in the administration of
justice. Respect to the courts guarantees the stability of other institutions, which
without such guaranty would be resting on a very shaky foundation.124
(Emphases and underscoring supplied.)
That the doctrinal pronouncements in these early cases are still good law can be
easily gleaned even from more recent jurisprudence.
In Choa v. Chiongson,125 the Court administratively disciplined a lawyer,
through the imposition of a fine, for making malicious and unfounded criticisms
of a judge in the guise of an administrative complaint and held, thus:
As an officer of the court and its indispensable partner in the sacred task of
administering justice, graver responsibility is imposed upon a lawyer than any
other to uphold the integrity of the courts and to show respect to its officers.
This does not mean, however, that a lawyer cannot criticize a judge. As we
stated in Tiongco vs. Hon. Aguilar:
It does not, however, follow that just because a lawyer is an officer of the court,
he cannot criticize the courts. That is his right as a citizen, and it is even his duty
as an officer of the court to avail of such right. Thus, in In Re: Almacen (31
SCRA 562, 579-580 [1970]), this Court explicitly declared:
Hence, as a citizen and as officer of the court, a lawyer is expected not only to
exercise the right, but also to consider it his duty to avail of such right. No law
may abridge this right. Nor is he "professionally answerable to a scrutiny into
the official conduct of the judges, which would not expose him to legal
animadversion as a citizen." (Case of Austin, 28 Am Dec. 657, 665).
xxxx
Nevertheless, such a right is not without limit. For, as this Court warned in
Almacen:
But it is a cardinal condition of all such criticism that it shall be bona fide, and
shall not spill over the walls of decency and propriety. A wide chasm exists
between fair criticism, on the one hand, and abuse and slander of courts and the
judges thereof, on the other. Intemperate and unfair criticism is a gross violation
of the duty of respect to courts. It is such a misconduct, that subjects a lawyer
to disciplinary action.
xxxx
Elsewise stated, the right to criticize, which is guaranteed by the freedom of
speech and of expression in the Bill of Rights of the Constitution, must be
exercised responsibly, for every right carries with it a corresponding obligation.
Freedom is not freedom from responsibility, but freedom with responsibility. x
x x.
xxxx
Proscribed then are, inter alia, the use of unnecessary language which
jeopardizes high esteem in courts, creates or promotes distrust in judicial
administration (Rheem, supra), or tends necessarily to undermine the
confidence of people in the integrity of the members of this Court and to
degrade the administration of justice by this Court (In re: Sotto, 82 Phil. 595
[1949]); or of offensive and abusive language (In re: Rafael Climaco, 55 SCRA
107 [1974]); or abrasive and offensive language (Yangson vs. Salandanan, 68
SCRA 42 [1975]; or of disrespectful, offensive, manifestly baseless, and
malicious statements in pleadings or in a letter addressed to the judge (Baja vs.
Macandog, 158 SCRA [1988], citing the resolution of 19 January 1988 in Phil.
Public Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and
Ceniza vs. Sebastian, 130 SCRA 295 [1984]); or of disparaging, intemperate,
and uncalled-for remarks (Sangalang vs. Intermediate Appellate Court, 177
SCRA 87 [1989]).
Any criticism against a judge made in the guise of an administrative complaint
which is clearly unfounded and impelled by ulterior motive will not excuse the
lawyer responsible therefor under his duty of fidelity to his client. x x x.126
(Emphases and underscoring supplied.)
In Saberon v. Larong,127 where this Court found respondent lawyer guilty of
simple misconduct for using intemperate language in his pleadings and imposed
a fine upon him, we had the occasion to state:
The Code of Professional Responsibility mandates:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor
toward his professional colleagues, and shall avoid harassing tactics against
opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which
is abusive, offensive or otherwise improper.
CANON 11 - A lawyer shall observe and maintain the respect due to the courts
and to judicial officers and should insist on similar conduct by others.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing
language or behavior before the Courts.
To be sure, the adversarial nature of our legal system has tempted members of
the bar to use strong language in pursuit of their duty to advance the interests of
their clients.
However, while a lawyer is entitled to present his case with vigor and courage,
such enthusiasm does not justify the use of offensive and abusive language.
Language abounds with countless possibilities for one to be emphatic but
respectful, convincing but not derogatory, illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar to abstain from
all offensive personality and to advance no fact prejudicial to the honor or
reputation of a party or witness, unless required by the justice of the cause with
which he is charged. In keeping with the dignity of the legal profession, a
lawyer’s language even in his pleadings must be dignified.128
Verily, the accusatory and vilifying nature of certain portions of the Statement
exceeded the limits of fair comment and cannot be deemed as protected free
speech. Even In the Matter of Petition for Declaratory Relief Re:
Constitutionality of Republic Act 4880, Gonzales v. Commission on
Elections,129 relied upon by respondents in the Common Compliance, held
that:
From the language of the specific constitutional provision, it would appear that
the right is not susceptible of any limitation. No law may be passed abridging
the freedom of speech and of the press. The realities of life in a complex society
preclude however a literal interpretation. Freedom of expression is not an
absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other
societal values that press for recognition. x x x.130 (Emphasis supplied.)
One such societal value that presses for recognition in the case at bar is the
threat to judicial independence and the orderly administration of justice that
immoderate, reckless and unfair attacks on judicial decisions and institutions
pose. This Court held as much in Zaldivar v. Sandiganbayan and Gonzales,131
where we indefinitely suspended a lawyer from the practice of law for issuing
to the media statements grossly disrespectful towards the Court in relation to a
pending case, to wit:
Respondent Gonzales is entitled to the constitutional guarantee of free speech.
No one seeks to deny him that right, least of all this Court. What respondent
seems unaware of is that freedom of speech and of expression, like all
constitutional freedoms, is not absolute and that freedom of expression needs
on occasion to be adjusted to and accommodated with the requirements of
equally important public interest. One of these fundamental public interests is
the maintenance of the integrity and orderly functioning of the administration
of justice. There is no antinomy between free expression and the integrity of the
system of administering justice. For the protection and maintenance of freedom
of expression itself can be secured only within the context of a functioning and
orderly system of dispensing justice, within the context, in other words, of
viable independent institutions for delivery of justice which are accepted by the
general community. x x x.132 (Emphases supplied.)
For this reason, the Court cannot uphold the view of some respondents133 that
the Statement presents no grave or imminent danger to a legitimate public
interest.
The Show Cause Resolution does not interfere with respondents’ academic
freedom.
It is not contested that respondents herein are, by law and jurisprudence,
guaranteed academic freedom and undisputably, they are free to determine what
they will teach their students and how they will teach. We must point out that
there is nothing in the Show Cause Resolution that dictates upon respondents
the subject matter they can teach and the manner of their instruction. Moreover,
it is not inconsistent with the principle of academic freedom for this Court to
subject lawyers who teach law to disciplinary action for contumacious conduct
and speech, coupled with undue intervention in favor of a party in a pending
case, without observing proper procedure, even if purportedly done in their
capacity as teachers.
A novel issue involved in the present controversy, for it has not been passed
upon in any previous case before this Court, is the question of whether lawyers
who are also law professors can invoke academic freedom as a defense in an
administrative proceeding for intemperate statements tending to pressure the
Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Court’s past treatment of the "free speech" defense in
other bar discipline cases, academic freedom cannot be successfully invoked by
respondents in this case. The implicit ruling in the jurisprudence discussed
above is that the constitutional right to freedom of expression of members of
the Bar may be circumscribed by their ethical duties as lawyers to give due
respect to the courts and to uphold the public’s faith in the legal profession and
the justice system. To our mind, the reason that freedom of expression may be
so delimited in the case of lawyers applies with greater force to the academic
freedom of law professors.
It would do well for the Court to remind respondents that, in view of the broad
definition in Cayetano v. Monsod,134 lawyers when they teach law are
considered engaged in the practice of law. Unlike professors in other disciplines
and more than lawyers who do not teach law, respondents are bound by their
oath to uphold the ethical standards of the legal profession. Thus, their actions
as law professors must be measured against the same canons of professional
responsibility applicable to acts of members of the Bar as the fact of their being
law professors is inextricably entwined with the fact that they are lawyers.
Even if the Court was willing to accept respondents’ proposition in the Common
Compliance that their issuance of the Statement was in keeping with their duty
to "participate in the development of the legal system by initiating or supporting
efforts in law reform and in the improvement of the administration of justice"
under Canon 4 of the Code of Professional Responsibility, we cannot agree that
they have fulfilled that same duty in keeping with the demands of Canons 1, 11
and 13 to give due respect to legal processes and the courts, and to avoid
conduct that tends to influence the courts. Members of the Bar cannot be
selective regarding which canons to abide by given particular situations. With
more reason that law professors are not allowed this indulgence, since they are
expected to provide their students exemplars of the Code of Professional
Responsibility as a whole and not just their preferred portions thereof.
The Court’s rulings on the submissions regarding the charge of violation of
Canons 1, 11 and 13.
Having disposed of respondents’ main arguments of freedom of expression and
academic freedom, the Court considers here the other averments in their
submissions.
With respect to good faith, respondents’ allegations presented two main ideas:
(a) the validity of their position regarding the plagiarism charge against Justice
Del Castillo, and (b) their pure motive to spur this Court to take the correct
action on said issue.
The Court has already clarified that it is not the expression of respondents’
staunch belief that Justice Del Castillo has committed a misconduct that the
majority of this Court has found so unbecoming in the Show Cause Resolution.
No matter how firm a lawyer’s conviction in the righteousness of his cause there
is simply no excuse for denigrating the courts and engaging in public behavior
that tends to put the courts and the legal profession into disrepute. This doctrine,
which we have repeatedly upheld in such cases as Salcedo, In re Almacen and
Saberong, should be applied in this case with more reason, as the respondents,
not parties to the Vinuya case, denounced the Court and urged it to change its
decision therein, in a public statement using contumacious language, which
with temerity they subsequently submitted to the Court for "proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of
the Malaya Lolas was one of the objectives of the Statement could be seen in
the following paragraphs from the same:
And in light of the significance of this decision to the quest for justice not only
of Filipino women, but of women elsewhere in the world who have suffered the
horrors of sexual abuse and exploitation in times of war, the Court cannot coldly
deny relief and justice to the petitioners on the basis of pilfered and
misinterpreted texts.
xxxx
(3) The same breach and consequent disposition of the Vinuya case does
violence to the primordial function of the Supreme Court as the ultimate
dispenser of justice to all those who have been left without legal or equitable
recourse, such as the petitioners therein.135 (Emphases and underscoring
supplied.)
Whether or not respondents’ views regarding the plagiarism issue in the Vinuya
case had valid basis was wholly immaterial to their liability for contumacious
speech and conduct. These are two separate matters to be properly threshed out
in separate proceedings. The Court considers it highly inappropriate, if not
tantamount to dissembling, the discussion devoted in one of the compliances
arguing the guilt of Justice Del Castillo. In the Common Compliance,
respondents even go so far as to attach documentary evidence to support the
plagiarism charges against Justice Del Castillo in the present controversy. The
ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with the filing of a
motion for reconsideration, was still pending at the time of the filing of
respondents’ submissions in this administrative case. As respondents
themselves admit, they are neither parties nor counsels in the ethics case against
Justice Del Castillo. Notwithstanding their professed overriding interest in said
ethics case, it is not proper procedure for respondents to bring up their
plagiarism arguments here especially when it has no bearing on their own
administrative case.
Still on motive, it is also proposed that the choice of language in the Statement
was intended for effective speech; that speech must be "forceful enough to make
the intended recipients listen."136 One wonders what sort of effect respondents
were hoping for in branding this Court as, among others, callous, dishonest and
lacking in concern for the basic values of decency and respect. The Court fails
to see how it can ennoble the profession if we allow respondents to send a signal
to their students that the only way to effectively plead their cases and persuade
others to their point of view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were
deliberately quoted in full in the narration of background facts to illustrate the
sharp contrast between the civil tenor of these letters and the antagonistic
irreverence of the Statement. In truth, these foreign authors are the ones who
would expectedly be affected by any perception of misuse of their works.
Notwithstanding that they are beyond the disciplinary reach of this Court, they
still obviously took pains to convey their objections in a deferential and
scholarly manner. It is unfathomable to the Court why respondents could not do
the same. These foreign authors’ letters underscore the universality of the tenet
that legal professionals must deal with each other in good faith and due respect.
The mark of the true intellectual is one who can express his opinions logically
and soberly without resort to exaggerated rhetoric and unproductive
recriminations.
As for the claim that the respondents’ noble intention is to spur the Court to take
"constructive action" on the plagiarism issue, the Court has some doubts as to
its veracity. For if the Statement was primarily meant for this Court’s
consideration, why was the same published and reported in the media first
before it was submitted to this Court? It is more plausible that the Statement
was prepared for consumption by the general public and designed to capture
media attention as part of the effort to generate interest in the most controversial
ground in the Supplemental Motion for Reconsideration filed in the Vinuya case
by Atty. Roque, who is respondents’ colleague on the UP Law faculty.
In this regard, the Court finds that there was indeed a lack of observance of
fidelity and due respect to the Court, particularly when respondents knew fully
well that the matter of plagiarism in the Vinuya decision and the merits of the
Vinuya decision itself, at the time of the Statement’s issuance, were still both
sub judice or pending final disposition of the Court. These facts have been
widely publicized. On this point, respondents allege that at the time the
Statement was first drafted on July 27, 2010, they did not know of the
constitution of the Ethics Committee and they had issued the Statement under
the belief that this Court intended to take no action on the ethics charge against
Justice Del Castillo. Still, there was a significant lapse of time from the drafting
and printing of the Statement on July 27, 2010 and its publication and
submission to this Court in early August when the Ethics Committee had
already been convened. If it is true that the respondents’ outrage was fueled by
their perception of indifference on the part of the Court then, when it became
known that the Court did intend to take action, there was nothing to prevent
respondents from recalibrating the Statement to take this supervening event into
account in the interest of fairness.
Speaking of the publicity this case has generated, we likewise find no merit in
the respondents’ reliance on various news reports and commentaries in the print
media and the internet as proof that they are being unfairly "singled out." On
the contrary, these same annexes to the Common Compliance show that it is not
enough for one to criticize the Court to warrant the institution of disciplinary137
or contempt138 action. This Court takes into account the nature of the criticism
and weighs the possible repercussions of the same on the Judiciary. When the
criticism comes from persons outside the profession who may not have a full
grasp of legal issues or from individuals whose personal or other interests in
making the criticism are obvious, the Court may perhaps tolerate or ignore
them. However, when law professors are the ones who appear to have lost sight
of the boundaries of fair commentary and worse, would justify the same as an
exercise of civil liberties, this Court cannot remain silent for such silence would
have a grave implication on legal education in our country.
With respect to the 35 respondents named in the Common Compliance,
considering that this appears to be the first time these respondents have been
involved in disciplinary proceedings of this sort, the Court is willing to give
them the benefit of the doubt that they were for the most part well-intentioned
in the issuance of the Statement. However, it is established in jurisprudence that
where the excessive and contumacious language used is plain and undeniable,
then good intent can only be mitigating. As this Court expounded in Salcedo:
In his defense, Attorney Vicente J. Francisco states that it was not his intention
to offend the court or to be recreant to the respect thereto but, unfortunately,
there are his phrases which need no further comment. Furthermore, it is a well
settled rule in all places where the same conditions and practice as those in this
jurisdiction obtain, that want of intention is no excuse from liability (13 C. J.,
45). Neither is the fact that the phrases employed are justified by the facts a
valid defense:
"Where the matter is abusive or insulting, evidence that the language used was
justified by the facts is not admissible as a defense. Respect for the judicial
office should always be observed and enforced." (In re Stewart, 118 La., 827;
43 S., 455.) Said lack or want of intention constitutes at most an extenuation of
liability in this case, taking into consideration Attorney Vicente J. Francisco's
state of mind, according to him when he prepared said motion. This court is
disposed to make such concession. However, in order to avoid a recurrence
thereof and to prevent others, by following the bad example, from taking the
same course, this court considers it imperative to treat the case of said attorney
with the justice it deserves.139 (Emphases supplied.)
Thus, the 35 respondents named in the Common Compliance should,
notwithstanding their claim of good faith, be reminded of their lawyerly duty,
under Canons 1, 11 and 13, to give due respect to the courts and to refrain from
intemperate and offensive language tending to influence the Court on pending
matters or to denigrate the courts and the administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences in his
Compliance compared to his colleagues. In our view, he was the only one
among the respondents who showed true candor and sincere deference to the
Court. He was able to give a straightforward account of how he came to sign
the Statement. He was candid enough to state that his agreement to the
Statement was in principle and that the reason plagiarism was a "fair topic of
discussion" among the UP Law faculty prior to the promulgation of the October
12, 2010 Decision in A.M. No. 10-7-17-SC was the uncertainty brought about
by a division of opinion on whether or not willful or deliberate intent was an
element of plagiarism. He was likewise willing to acknowledge that he may
have been remiss in failing to assess the effect of the language of the Statement
and could have used more care. He did all this without having to retract his
position on the plagiarism issue, without demands for undeserved reliefs (as
will be discussed below) and without baseless insinuations of deprivation of due
process or of prejudgment. This is all that this Court expected from respondents,
not for them to sacrifice their principles but only that they recognize that they
themselves may have committed some ethical lapse in this affair. We commend
Prof. Vaquez for showing that at least one of the respondents can grasp the true
import of the Show Cause Resolution involving them. For these reasons, the
Court finds Prof. Vasquez’s Compliance satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar
of the State of Minnesota and, therefore, not under the disciplinary authority of
this Court, he should be excused from these proceedings. However, he should
be reminded that while he is engaged as a professor in a Philippine law school
he should strive to be a model of responsible and professional conduct to his
students even without the threat of sanction from this Court. For even if one is
not bound by the Code of Professional Responsibility for members of the
Philippine Bar, civility and respect among legal professionals of any nationality
should be aspired for under universal standards of decency and fairness.
The Court’s ruling on Dean Leonen’s Compliance regarding the charge of
violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause why
he should not be disciplinary dealt with for violation of Canon 10, Rules 10.01,
10.02 and 10.03 and for submitting a "dummy" that was not a true and faithful
reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity II
was not a true and faithful reproduction of the actual signed copy, Restoring
Integrity I, because looking at the text or the body, there were no differences
between the two. He attempts to downplay the discrepancies in the signature
pages of the two versions of the Statement (i.e., Restoring Integrity I and
Restoring Integrity II) by claiming that it is but expected in "live" public
manifestos with dynamic and evolving pages as more and more signatories add
their imprimatur thereto. He likewise stresses that he is not administratively
liable because he did not misrepresent the members of the UP Law faculty who
"had agreed with the Restoring Integrity Statement proper and/or who had
expressed their desire to be signatories thereto."140
To begin with, the Court cannot subscribe to Dean Leonen’s implied view that
the signatures in the Statement are not as significant as its contents. Live public
manifesto or not, the Statement was formally submitted to this Court at a
specific point in time and it should reflect accurately its signatories at that point.
The value of the Statement as a UP Law Faculty Statement lies precisely in the
identities of the persons who have signed it, since the Statement’s persuasive
authority mainly depends on the reputation and stature of the persons who have
endorsed the same. Indeed, it is apparent from respondents’ explanations that
their own belief in the "importance" of their positions as UP law professors
prompted them to publicly speak out on the matter of the plagiarism issue in the
Vinuya case.
Further, in our assessment, the true cause of Dean Leonen’s predicament is the
fact that he did not from the beginning submit the signed copy, Restoring
Integrity I, to this Court on August 11, 2010 and, instead, submitted Restoring
Integrity II with its retyped or "reformatted" signature pages. It would turn out,
according to Dean Leonen’s account, that there were errors in the retyping of
the signature pages due to lapses of his unnamed staff. First, an unnamed
administrative officer in the dean’s office gave the dean inaccurate information
that led him to allow the inclusion of Justice Mendoza as among the signatories
of Restoring Integrity II. Second, an unnamed staff also failed to type the name
of Atty. Armovit when encoding the signature pages of Restoring Integrity II
when in fact he had signed Restoring Integrity I.
The Court can understand why for purposes of posting on a bulletin board or a
website a signed document may have to be reformatted and signatures may be
indicated by the notation (SGD). This is not unusual. We are willing to accept
that the reformatting of documents meant for posting to eliminate blanks is
necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of
a signed document for the Court’s consideration that did not contain the actual
signatures of its authors. In most cases, it is the original signed document that
is transmitted to the Court or at the very least a photocopy of the actual signed
document. Dean Leonen has not offered any explanation why he deviated from
this practice with his submission to the Court of Restoring Integrity II on August
11, 2010. There was nothing to prevent the dean from submitting Restoring
Integrity I to this Court even with its blanks and unsigned portions. Dean
Leonen cannot claim fears of vandalism with respect to court submissions for
court employees are accountable for the care of documents and records that may
come into their custody. Yet, Dean Leonen deliberately chose to submit to this
Court the facsimile that did not contain the actual signatures and his silence on
the reason therefor is in itself a display of lack of candor.
Still, a careful reading of Dean Leonen’s explanations yield the answer. In the
course of his explanation of his willingness to accept his administrative officer’s
claim that Justice Mendoza agreed to be indicated as a signatory, Dean Leonen
admits in a footnote that other professors had likewise only authorized him to
indicate them as signatories and had not in fact signed the Statement. Thus, at
around the time Restoring Integrity II was printed, posted and submitted to this
Court, at least one purported signatory thereto had not actually signed the same.
Contrary to Dean Leonen’s proposition, that is precisely tantamount to making
it appear to this Court that a person or persons participated in an act when such
person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for
perfection and stringent standards of intellectual honesty, could proffer the
explanation that there was no misrepresentation when he allowed at least one
person to be indicated as having actually signed the Statement when all he had
was a verbal communication of an intent to sign. In the case of Justice Mendoza,
what he had was only hearsay information that the former intended to sign the
Statement. If Dean Leonen was truly determined to observe candor and
truthfulness in his dealings with the Court, we see no reason why he could not
have waited until all the professors who indicated their desire to sign the
Statement had in fact signed before transmitting the Statement to the Court as a
duly signed document. If it was truly impossible to secure some signatures, such
as that of Justice Mendoza who had to leave for abroad, then Dean Leonen
should have just resigned himself to the signatures that he was able to secure.
We cannot imagine what urgent concern there was that he could not wait for
actual signatures before submission of the Statement to this Court. As
respondents all asserted, they were neither parties to nor counsels in the Vinuya
case and the ethics case against Justice Del Castillo. The Statement was neither
a pleading with a deadline nor a required submission to the Court; rather, it was
a voluntary submission that Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonen’s Compliance unsatisfactory.
However, the Court is willing to ascribe these isolated lapses in judgment of
Dean Leonen to his misplaced zeal in pursuit of his objectives. In due
consideration of Dean Leonen’s professed good intentions, the Court deems it
sufficient to admonish Dean Leonen for failing to observe full candor and
honesty in his dealings with the Court as required under Canon 10.
Respondents’ requests for a hearing, for production/presentation of evidence
bearing on the plagiarism and misrepresentation issues in G.R. No. 162230 and
A.M. No. 10-7-17-SC, and for access to the records of A.M. No. 10-7-17-SC
are unmeritorious.
In the Common Compliance, respondents named therein asked for alternative
reliefs should the Court find their Compliance unsatisfactory, that is, that the
Show Cause Resolution be set for hearing and for that purpose, they be allowed
to require the production or presentation of witnesses and evidence bearing on
the plagiarism and misrepresentation issues in the Vinuya case (G.R. No.
162230) and the plagiarism case against Justice Del Castillo (A.M. No. 10-7-
17-SC) and to have access to the records of, and evidence that were presented
or may be presented in the ethics case against Justice Del Castillo. The prayer
for a hearing and for access to the records of A.M. No. 10-7-17-SC was
substantially echoed in Dean Leonen’s separate Compliance. In Prof. Juan-
Bautista’s Compliance, she similarly expressed the sentiment that "[i]f the
Restoring Integrity Statement can be considered indirect contempt, under
Section 3 of Rule 71 of the Rules of Court, such may be punished only after
charge and hearing."141 It is this group of respondents’ premise that these
reliefs are necessary for them to be accorded full due process.
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to the necessity of a hearing in this
case springs largely from its characterization as a special civil action for indirect
contempt in the Dissenting Opinion of Justice Sereno (to the October 19, 2010
Show Cause Resolution) and her reliance therein on the majority’s purported
failure to follow the procedure in Rule 71 of the Rules of Court as her main
ground for opposition to the Show Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect
contempt proceeding and Rule 71 (which requires a hearing) has no application
to this case. As explicitly ordered in the Show Cause Resolution this case was
docketed as an administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on
disciplinary proceedings initiated motu proprio by the Supreme Court, to wit:
SEC. 13. Supreme Court Investigators.—In proceedings initiated motu proprio
by the Supreme Court or in other proceedings when the interest of justice so
requires, the Supreme Court may refer the case for investigation to the Solicitor
General or to any officer of the Supreme Court or judge of a lower court, in
which case the investigation shall proceed in the same manner provided in
sections 6 to 11 hereof, save that the review of the report of investigation shall
be conducted directly by the Supreme Court. (Emphasis supplied.)
From the foregoing provision, it cannot be denied that a formal investigation,
through a referral to the specified officers, is merely discretionary, not
mandatory on the Court. Furthermore, it is only if the Court deems such an
investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A
will be followed.
As respondents are fully aware, in general, administrative proceedings do not
require a trial type hearing. We have held that:
The essence of due process is simply an opportunity to be heard or, as applied
to administrative proceedings, an opportunity to explain one's side or an
opportunity to seek a reconsideration of the action or ruling complained of.
What the law prohibits is absolute absence of the opportunity to be heard, hence,
a party cannot feign denial of due process where he had been afforded the
opportunity to present his side. A formal or trial type hearing is not at all times
and in all instances essential to due process, the requirements of which are
satisfied where the parties are afforded fair and reasonable opportunity to
explain their side of the controversy.142 (Emphases supplied.)
In relation to bar discipline cases, we have had the occasion to rule in Pena v.
Aparicio143 that:
Disciplinary proceedings against lawyers are sui generis. Neither purely civil
nor purely criminal, they do not involve a trial of an action or a suit, but is rather
an investigation by the Court into the conduct of one of its officers. Not being
intended to inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be
initiated by the Court motu proprio. Public interest is its primary objective, and
the real question for determination is whether or not the attorney is still a fit
person to be allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to account
for his actuations as an officer of the Court with the end in view of preserving
the purity of the legal profession and the proper and honest administration of
justice by purging the profession of members who by their misconduct have
proved themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such posture, there can
thus be no occasion to speak of a complainant or a prosecutor.144 (Emphases
supplied.)
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court – Br. 81,
Romblon – On the Prohibition from Engaging in the Private Practice of
Law,145 we further observed that:
[I]n several cases, the Court has disciplined lawyers without further inquiry or
resort to any formal investigation where the facts on record sufficiently
provided the basis for the determination of their administrative liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any
further investigation after considering his actions based on records showing his
unethical misconduct; the misconduct not only cast dishonor on the image of
both the Bench and the Bar, but was also inimical to public interest and welfare.
In this regard, the Court took judicial notice of several cases handled by the
errant lawyer and his cohorts that revealed their modus operandi in
circumventing the payment of the proper judicial fees for the astronomical sums
they claimed in their cases. The Court held that those cases sufficiently provided
the basis for the determination of respondents' administrative liability, without
need for further inquiry into the matter under the principle of res ipsa loquitur.
Also on the basis of this principle, we ruled in Richards v. Asoy, that no
evidentiary hearing is required before the respondent may be disciplined for
professional misconduct already established by the facts on record.
xxxx
These cases clearly show that the absence of any formal charge against and/or
formal investigation of an errant lawyer do not preclude the Court from
immediately exercising its disciplining authority, as long as the errant lawyer
or judge has been given the opportunity to be heard. As we stated earlier, Atty.
Buffe has been afforded the opportunity to be heard on the present matter
through her letter-query and Manifestation filed before this Court.146
(Emphases supplied.)
Under the rules and jurisprudence, respondents clearly had no right to a hearing
and their reservation of a right they do not have has no effect on these
proceedings. Neither have they shown in their pleadings any justification for
this Court to call for a hearing in this instance. They have not specifically stated
what relevant evidence, documentary or testimonial, they intend to present in
their defense that will necessitate a formal hearing.
Instead, it would appear that they intend to present records, evidence, and
witnesses bearing on the plagiarism and misrepresentation issues in the Vinuya
case and in A.M. No. 10-7-17-SC on the assumption that the findings of this
Court which were the bases of the Show Cause Resolution were made in A.M.
No. 10-7-17-SC, or were related to the conclusions of the Court in the Decision
in that case. This is the primary reason for their request for access to the records
and evidence presented in A.M. No. 10-7-17-SC.
This assumption on the part of respondents is erroneous. To illustrate, the only
incident in A.M. No. 10-7-17-SC that is relevant to the case at bar is the fact
that the submission of the actual signed copy of the Statement (or Restoring
Integrity I, as Dean Leonen referred to it) happened there. Apart from that fact,
it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics case
against Justice Del Castillo, is a separate and independent matter from this case.
To find the bases of the statements of the Court in the Show Cause Resolution
that the respondents issued a Statement with language that the Court deems
objectionable during the pendency of the Vinuya case and the ethics case
against Justice Del Castillo, respondents need to go no further than the four
corners of the Statement itself, its various versions, news reports/columns
(many of which respondents themselves supplied to this Court in their Common
Compliance) and internet sources that are already of public knowledge.
Considering that what respondents are chiefly required to explain are the
language of the Statement and the circumstances surrounding the drafting,
printing, signing, dissemination, etc., of its various versions, the Court does not
see how any witness or evidence in the ethics case of Justice Del Castillo could
possibly shed light on these facts. To be sure, these facts are within the
knowledge of respondents and if there is any evidence on these matters the same
would be in their possession.
We find it significant that in Dean Leonen’s Compliance he narrated how as
early as September 2010, i.e., before the Decision of this Court in the ethics
case of Justice Del Castillo on October 12, 2010 and before the October 19,
2010 Show Cause Resolution, retired Supreme Court Justice Vicente V.
Mendoza, after being shown a copy of the Statement upon his return from
abroad, predicted that the Court would take some form of action on the
Statement. By simply reading a hard copy of the Statement, a reasonable person,
even one who "fundamentally agreed" with the Statement’s principles, could
foresee the possibility of court action on the same on an implicit recognition
that the Statement, as worded, is not a matter this Court should simply let pass.
This belies respondents’ claim that it is necessary for them to refer to any record
or evidence in A.M. No. 10-7-17-SC in order to divine the bases for the Show
Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in their
respective compliances or chosen not to make a full defense at this time,
because they were counting on being granted a hearing, that is respondents’
own look-out. Indeed, law professors of their stature are supposed to be aware
of the above jurisprudential doctrines regarding the non-necessity of a hearing
in disciplinary cases. They should bear the consequence of the risk they have
taken.
Thus, respondents’ requests for a hearing and for access to the records of, and
evidence presented in, A.M. No. 10-7-17-SC should be denied for lack of merit.
A final word
In a democracy, members of the legal community are hardly expected to have
monolithic views on any subject, be it a legal, political or social issue. Even as
lawyers passionately and vigorously propound their points of view they are
bound by certain rules of conduct for the legal profession. This Court is
certainly not claiming that it should be shielded from criticism. All the Court
demands is the same respect and courtesy that one lawyer owes to another under
established ethical standards. All lawyers, whether they are judges, court
employees, professors or private practitioners, are officers of the Court and have
voluntarily taken an oath, as an indispensable qualification for admission to the
Bar, to conduct themselves with good fidelity towards the courts. There is no
exemption from this sworn duty for law professors, regardless of their status in
the academic community or the law school to which they belong.
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his submission, the
Court finds his Compliance to be satisfactory.
(2) The Common Compliance of 35 respondents, namely, Attys. Marvic M.V.F.
Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona,
Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante
B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn
(Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose
Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J.
Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O.
Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña,
Carina C. Laforteza, Jose C. Laureta, Rodolfo Noel S. Quimbo, Antonio M.
Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua,
Susan D. Villanueva and Dina D. Lucenario, is found UNSATISFACTORY.
These 35 respondent law professors are reminded of their lawyerly duty, under
Canons 1, 11 and 13 of the Code of Professional Responsibility, to give due
respect to the Court and to refrain from intemperate and offensive language
tending to influence the Court on pending matters or to denigrate the Court and
the administration of justice and warned that the same or similar act in the future
shall be dealt with more severely.
(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the
charge of violation of Canon 10 is found UNSATISFACTORY. He is further
ADMONISHED to be more mindful of his duty, as a member of the Bar, an
officer of the Court, and a Dean and professor of law, to observe full candor and Complainant was one of several workers who filed three separate complaints
honesty in his dealings with the Court and warned that the same or similar act before the NLRC against their employer, FMC Engineering and Construction,
in the future shall be dealt with more severely. in 1992 and 1993. Respondent was their lawyer.

(4) Prof. Lynch, who is not a member of the Philippine bar, is excused from In those cases, the workers alleged that they were illegally dismissed and
these proceedings. However, he is reminded that while he is engaged as a demanded payment of termination pay, accrued leave benefits, 13th month pay,
professor in a Philippine law school he should strive to be a model of and moral damages. On March 21, 1994, labor arbiter Valentin C. Guanio
responsible and professional conduct to his students even without the threat of rendered a decision in favor of FMC, after finding that the workers were project
sanction from this Court. workers whose services were validly terminated upon completion of the
projects for which they were hired. However, FMC was ordered to pay the
(5) Finally, respondents’ requests for a hearing and for access to the records of worker' claims for wage differentials, 13th month pay, service incentive leave
A.M. No. 10-7-17-SC are denied for lack of merit. pay, and attorney's fees.
SO ORDERED. Aggrieved, the workers informed respondent that they wanted to appeal the
decision. On May 23, 1994, respondent filed a notice of appeal. However,
TERESITA J. LEONARDO-DE CASTRO respondent did not file a memorandum of appeal as required under the Rules of
Procedure of the NLRC. Sensing that respondent had no intention to file a
Associate Justice
memorandum, complainant and his co-workers asked respondent to just
WE CONCUR: withdraw from the case. Instead of withdrawing, however, respondent
threatened to sue their group and the new lawyer they would hire, said the
RENATO C. CORONA complainant.

Chief Justice Complainant also claims that he and his co-workers gave respondent P280.00
for filing fee but respondent made a receipt for only P180.00.
See Dissenting Opinion
In his comment, respondent asserts that he filed a notice of appeal at the behest
ANTONIO T. CARPIO of Flutarco Sueno, complainant in one of the labor cases. Respondent claims
that herein complainant, along with the other workers, did not wish to file an
Associate Justice Please see Dissenting Opinion appeal since they had no money to spend. Respondent alleges that complainant
and the other workers instead asked him to withdraw from the case, which
CONCHITA CARPIO MORALES
respondent refused to do since he did not have a basis therefor and he had
Associate Justice already filed a notice of appeal.
PRESBITERO J. VELASCO, JR.
Respondent argues that despite his having filed a notice of appeal, he had not
Associate Justice On leave
received any notice from the NLRC directing him to file an appeal brief.
ANTONIO EDUARDO B. NACHURA*
Associate Justice On October 24, 1994, we referred, this matter to the IBP for investigation,
I certify the Mr. Justice Brion left his concurring vote report, and recommendation.
ARTURO D. BRION
Associate Justice DIOSDADO M. PERALTA In its report dated June 15, 1999, the IBP Commission on Bar Discipline found
Associate Justice respondent liable for negligence and unprofessional conduct for his failure to
LUCAS P. BERSAMIN file the required memorandum of appeal before the NLRC, and to account for
Associate Justice (No Part) all the money he received from his clients. Both are clear violations of the Code
MARIANO C. DEL CASTILLO** of Professional Responsibility. The IBP Board of Governors adopted and
Associate Justice approved the report of the Commission, with an amendment that the fine to be
ROBERTO A. ABAD imposed against respondent be reduced to P500.00 from P1,000.00.
Associate Justice Pls see Separate Opinion
MARTIN S. VILLARAMA, JR. We are in full accord with the findings and recommendation of the IBP.
Associate Justice
JOSE PORTUGAL PEREZ Rule VI, Section 3(a) of the NLRC Rules of Procedure requires that:
Associate Justice JOSE CATRAL MENDOZA
"The appeal shall be filed within the reglementary period as provided in Section
Associate Justice
1 of this Rule; shall be under oath with proof of payment of the required appeal
I dissent and reserve the right to issue a Separate Opinion
fee and the posting of a cash or surety bond as provided in Section 5 of this
MARIA LOURDES P. A. SERENO
Rule; shall be accompanied by a memorandum of appeal which shall state the
Associate Justice
grounds relied upon and the arguments in support thereof; the relief prayed for;
13th
and a statement of the date when the appellant received the appealed decision,
SECOND DIVISION order or award and proof of service on the other party of such appeal.
[A.C. No. 4282. August 24, 2000
A mere notice of appeal without complying with the other requisites aforestated
shall not stop the running of the period for perfecting an appeal. (Underscoring
TEODULFO B. BASAS, complainant, vs. ATTY. MIGUEL I. ICAWAT,
supplied.)
respondent.
Respondent's failure to file the memorandum of appeal required by the NLRC
Rules of Procedure reveals his poor grasp of labor law. Respondent practically
RESOLUTION
admitted that he did not file the memorandum, when he claimed that "despite
QUISUMBING, J.: follow ups made [he had] not yet received an order wherein which (sic) to file
APPEAL BRIEF with the National Labor Relations Commission."1 His failure
In a letter-complaint dated June 25, 1994, complainant Teodulfo B. Basas to file the memorandum clearly prejudiced the interests of his clients.
alleged negligence on the part of respondent lawyer Miguel I. Icawat in the
handling of NLRC-NCR Cases No. 00-09-05043-90, 00-11-06410-92, and 00- Respondent manifestly fell short of the diligence required of his profession, in
06-03672-93 involving complainant and several of his co-workers. violation of Canon 18 of the Code of Professional Responsibility, which
mandates that a lawyer shall serve his client with competence and diligence.
Rule 18.03 provides:
"A lawyer shall not neglect a legal matter entrusted to him, and his negligence
in connection therewith shall render him liable."
As we reiterated in Aromin, et al. v. Boncavil, A. C. No. 5135, September 22,
1999:
"Once he agrees to take up the cause of a client, the lawyer owes fidelity to such
cause and must always be mindful of the trust and confidence reposed in him.
He must serve the client with competence and diligence, and champion the
latter's cause with wholehearted fidelity, care, and devotion. Elsewise stated, he
owes entire devotion to the interest of the client, warm zeal in the maintenance
and defense of his client's rights, and the exertion of his utmost learning and
ability to the end that nothing be taken or withheld from his client, save by the
rules of law, legally applied. This simply means that his client is entitled to the
benefit of any and every remedy and defense that is authorized by the law of
the land he may expect his lawyer to assert every such remedy or defense. If
much is demanded from an attorney, it is because the entrusted privilege to
practice law carries with it the correlative duties not only to the client but also
to the court, to the bar, and to the public. A lawyer who performs his duty with
diligence and candor not only protects the interest of his client; he also serves
the ends of justice, does honor to the bar, and helps maintain the respect of the
community to the legal profession."
For his failure to issue the proper receipt for the P280.00 he received from his
clients - which he later on claimed to be insufficient for an "old experienced
lawyer", whether the amount be P180.00 or P280.00 - respondent also violated
Rule 16.01 of the Code of Professional Responsibility: "A lawyer shall account
for all money or property collected or received for or from the client."
WHEREFORE , the Court resolves to FINE Atty. Miguel I. Icawat in the
amount of P500.00, with a warning that a repetition of the same offense or a
similar misconduct will be dealt with more severely
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
14th
Republic of the Philippines
SUPREME COURT
Baguio city
FIRST DIVISION
A.C. No. 2519 August 29, 2000
TEODORO R RIVERA, ANTONIO D. AQUINO and FELIXBERTO D.
AQUINO, complainants,
vs.
ATTY. SERGIO ANGELES, respondent.
RESOLUTION
YNARES-SANTIAGO, J.:
On March 25, 1983, complainants filed a Complaint for Disbarment against
Atty. Sergio Angeles on the grounds of Deceit and Malpractice. The Affidavit-
Complaint1 reads as follows:
"1. The undersigned are plaintiffs in Civil Cases Nos. Q-12841 and Q-13128 of
the Court of First Instance of Rizal, Branch V at Quezon City;
2. Atty. Sergio Angeles is their counsel of record in the said cases and his office
is located at Suite 335, URC Building, 2123 España, Manila;
3. That after receiving favorable decision from the CFI on May 21, 1973 and
sustained by the Court of Appeals and the Supreme Court an alias writ of
execution was issued in said cases;
4. That in the first week of January 1983 we obtained from the CFI a sheriff's
return, dated November 10, 1982, stating that no leviable property can be found
in the premises of the defendants;
5. That on or before January 13, 1983, we learned that Mr. Rodolfo M. Silva,
one of the defendants in said cases had already given Atty. Angeles a partial
settlement of the judgment in the amount of P42,999.00 (as evidenced by xerox
copies of Partial Settlement of Judgment dated September 21, 1982 and Receipt
of Payment dated September 22, 1982, hereto attached as Annexes "A" and "B",
respectively), without our knowledge.
6. That Atty. Sergio Angeles never informed the undersigned of the amount of
P42,999.00 he received from Mr. Silva nor remitted to them even a part of that
amount;
7. That a demand letter was sent to Atty. Sergio Angeles which was received
by him on February 17, 1983, but as of this date the undersigned have not yet
received any reply. (See Exhibit "C" and "D" attached)."
In his Comment filed on June 21, 1983, respondent denied the accusations and
stated that he has the right to retain the said amount of P42,999.00 and to apply
the same to professional fees due him under the subsequent agreement first with
complainant Teodoro Rivera and later with Mrs. Dely Dimson Rivera as
embodied in the Deed of Assignment (Annex "8")2 or under the previous
agreement of P20% of P206,000.00.
Complainants, in their Reply,3 vehemently denied the assignment of their rights
to respondent.
Thereafter, this case was referred to the Solicitor General for investigation,
report and recommendation in our Resolution dated November 21, 1983. The
Office of the Solicitor General considered this case submitted for resolution on
April 30, 1985 by declaring respondent's right to present evidence as considered
waived due to the latter's failure to appear on the scheduled hearings. However,
the records from said Office do not show any resolution.
In October 1998, the Integrated Bar of the Philippines issued an Order requiring
the parties to manifest whether or not they are still interested in prosecuting this
case, or whether supervening events have transpired which render this case
moot and academic or otherwise. The copy of said Order sent to the
complainants was received by their counsel on October 30, 1998 while the copy
to the respondent was returned unclaimed.
Investigating Commissioner Julio C. Elamparo submitted his report on April
29, 1999 finding respondent Atty. Sergio Angeles guilty of violating the Code
of Professional Responsibility specifically Rule 1.01, Canon 16 and Rule 16.01
thereof and recommends his indefinite suspension from the practice of law.
The Board of Governors of the Integrated Bar of the Philippines on June 19,
1999, issued a resolution, the decretal portion of which reads:
"RESOLUTION NO. XIII-99-151
Adm. Case No. 2519
Teodoro R Rivera, et al. vs.
Atty. Sergio Angeles
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner in the above-entitled case, herein made part of this
Resolution/Decision as Annex "A"; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules, with an
amendment that Atty. Sergio Angeles is SUSPENDED from the practice of law
for ONE (1) YEAR for his having been found guilty of practicing deceit in
dealing with his client."
The Court finds merit in the recommendation of the Integrated Bar of the
Philippines. Respondent's act of deceit and malpractice indubitably
demonstrated his failure to live up to his sworn duties as a lawyer. The Supreme
Court repeatedly stressed the importance of integrity and good moral character
as part of a lawyer's equipment in the practice of his profession.4 For it cannot
be denied that the respect of litigants for the profession is inexorably diminished
whenever a member of the Bar betrays their trust and confidence.
The Court is not oblivious of the right of a lawyer to be paid for the legal
services he has extended to his client but such right should not be exercised
whimsically by appropriating to himself the money intended for his clients.
There should never be an instance where the victor in litigation loses everything
he won to the fees of his own lawyer.
WHEREFORE, respondent Atty. Sergio Angeles, is SUSPENDED from the
practice of law for ONE (1) YEAR for having been found guilty of practicing
deceit in dealing with his client.
This Resolution shall take effect immediately and copies thereof furnished the
Office of the Bar Confidant, Integrated Bar of the Philippines and appended to
respondent's personal record.
SO ORDERED.
Davide, Jr., C .J ., Puno, Kapunan and Pardo, JJ ., concur.
15th
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27654 February 18, 1970
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION
AGAINST ATTY. VICENTE RAUL ALMACEN In L-27654, ANTONIO H.
CALERO,
vs.
VIRGINIA Y. YAPTINCHAY.
RESOLUTION
CASTRO, J.:
Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's
Certificate of Title," filed on September 25, 1967, in protest against what he
therein asserts is "a great injustice committed against his client by this Supreme
Court." He indicts this Court, in his own phrase, as a tribunal "peopled by men
who are calloused to our pleas for justice, who ignore without reasons their own
applicable decisions and commit culpable violations of the Constitution with
impunity." His client's he continues, who was deeply aggrieved by this Court's
"unjust judgment," has become "one of the sacrificial victims before the altar of
hypocrisy." In the same breath that he alludes to the classic symbol of justice,
he ridicules the members of this Court, saying "that justice as administered by
the present members of the Supreme Court is not only blind, but also deaf and
dumb." He then vows to argue the cause of his client "in the people's forum,"
so that "the people may know of the silent injustice's committed by this Court,"
and that "whatever mistakes, wrongs and injustices that were committed must
never be repeated." He ends his petition with a prayer that
... a resolution issue ordering the Clerk of Court to receive the certificate of the
undersigned attorney and counsellor-at-law IN TRUST with reservation that at
any time in the future and in the event we regain our faith and confidence, we
may retrieve our title to assume the practice of the noblest profession.
He reiterated and disclosed to the press the contents of the aforementioned
petition. Thus, on September 26, 1967, the Manila Times published statements
attributed to him, as follows:
Vicente Raul Almacen, in an unprecedented petition, said he did it to expose
the tribunal's "unconstitutional and obnoxious" practice of arbitrarily denying
petitions or appeals without any reason.
Because of the tribunal's "short-cut justice," Almacen deplored, his client was
condemned to pay P120,000, without knowing why he lost the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this petition,
"where our Supreme Court is composed of men who are calloused to our pleas
for justice, who ignore without reason their own applicable decisions and
commit culpable violations of the Constitution with impunity.
xxx xxx xxx
He expressed the hope that by divesting himself of his title by which he earns
his living, the present members of the Supreme Court "will become responsive
to all cases brought to its attention without discrimination, and will purge itself
of those unconstitutional and obnoxious "lack of merit" or "denied resolutions.
(Emphasis supplied)
Atty. Almacen's statement that
... our own Supreme Court is composed of men who are calloused to our pleas
of [sic] justice, who ignore their own applicable decisions and commit culpable
violations of the Constitution with impunity
was quoted by columnist Vicente Albano Pacis in the issue of the Manila
Chronicle of September 28, 1967. In connection therewith, Pacis commented
that Atty. Almacen had "accused the high tribunal of offenses so serious that
the Court must clear itself," and that "his charge is one of the constitutional
bases for impeachment."
The genesis of this unfortunate incident was a civil case entitled Virginia Y.
Yaptinchay vs. Antonio H. Calero,1 in which Atty. Almacen was counsel for
the defendant. The trial court, after due hearing, rendered judgment against his
client. On June 15, 1966 Atty. Almacen received a copy of the decision. Twenty
days later, or on July 5, 1966, he moved for its reconsideration. He served on
the adverse counsel a copy of the motion, but did not notify the latter of the time
and place of hearing on said motion. Meanwhile, on July 18, 1966, the plaintiff
moved for execution of the judgment. For "lack of proof of service," the trial
court denied both motions. To prove that he did serve on the adverse party a
copy of his first motion for reconsideration, Atty. Almacen filed on August 17,
1966 a second motion for reconsideration to which he attached the required
registry return card. This second motion for reconsideration, however, was
ordered withdrawn by the trial court on August 30, 1966, upon verbal motion
of Atty. Almacen himself, who, earlier, that is, on August 22, 1966, had already
perfected the appeal. Because the plaintiff interposed no objection to the record
on appeal and appeal bond, the trial court elevated the case to the Court of
Appeals.
But the Court of Appeals, on the authority of this Court's decision in Manila
Surety & Fidelity Co., Inc. vs. Batu Construction & Co., L-16636, June 24,
1965, dismissed the appeal, in the following words:
Upon consideration of the motion dated March 27, 1967, filed by plaintiff-
appellee praying that the appeal be dismissed, and of the opposition thereto filed
by defendant-appellant; the Court RESOLVED TO DISMISS, as it hereby
dismisses, the appeal, for the reason that the motion for reconsideration dated
July 5, 1966 (pp. 90-113, printed record on appeal) does not contain a notice of
time and place of hearing thereof and is, therefore, a useless piece of paper
(Manila Surety & Fidelity Co., Inc. vs. Batu Construction & Co., G.R. No. L-
16636, June 24, 1965), which did not interrupt the running of the period to
appeal, and, consequently, the appeal was perfected out of time.
Atty. Almacen moved to reconsider this resolution, urging that Manila Surety
& Fidelity Co. is not decisive. At the same time he filed a pleading entitled
"Latest decision of the Supreme Court in Support of Motion for
Reconsideration," citing Republic of the Philippines vs. Gregorio A.
Venturanza, L-20417, decided by this Court on May 30, 1966, as the applicable
case. Again, the Court of Appeals denied the motion for reconsideration, thus:
Before this Court for resolution are the motion dated May 9, 1967 and the
supplement thereto of the same date filed by defendant- appellant, praying for
reconsideration of the resolution of May 8, 1967, dismissing the appeal.
Appellant contends that there are some important distinctions between this case
and that of Manila Surety and Fidelity Co., Inc. vs. Batu Construction & Co.,
G.R. No. L- 16636, June 24, 1965, relied upon by this Court in its resolution of
May 8, 1967. Appellant further states that in the latest case, Republic vs.
Venturanza, L-20417, May 30, 1966, decided by the Supreme Court concerning
the question raised by appellant's motion, the ruling is contrary to the doctrine
laid down in the Manila Surety & Fidelity Co., Inc. case.
There is no substantial distinction between this case and that of Manila Surety
& Fidelity Co.
In the case of Republic vs. Venturanza, the resolution denying the motion to
dismiss the appeal, based on grounds similar to those raised herein was issued
on November 26, 1962, which was much earlier than the date of promulgation
of the decision in the Manila Surety Case, which was June 24, 1965. Further,
the resolution in the Venturanza case was interlocutory and the Supreme Court
issued it "without prejudice to appellee's restoring the point in the brief." In the
main decision in said case (Rep. vs. Venturanza the Supreme Court passed upon
the issue sub silencio presumably because of its prior decisions contrary to the
resolution of November 26, 1962, one of which is that in the Manila Surety and
Fidelity case. Therefore Republic vs. Venturanza is no authority on the matter
in issue.
Atty. Almacen then appealed to this Court by certiorari. We refused to take the
case, and by minute resolution denied the appeal. Denied shortly thereafter was
his motion for reconsideration as well as his petition for leave to file a second
motion for reconsideration and for extension of time. Entry of judgment was
made on September 8, 1967. Hence, the second motion for reconsideration filed
by him after the Said date was ordered expunged from the records.
It was at this juncture that Atty. Almacen gave vent to his disappointment by
filing his "Petition to Surrender Lawyer's Certificate of Title," already adverted
to — a pleading that is interspersed from beginning to end with the insolent
contemptuous, grossly disrespectful and derogatory remarks hereinbefore
reproduced, against this Court as well as its individual members, a behavior that
is as unprecedented as it is unprofessional.
Nonetheless we decided by resolution dated September 28, 1967 to withhold
action on his petition until he shall have actually surrendered his certificate.
Patiently, we waited for him to make good his proffer. No word came from him.
So he was reminded to turn over his certificate, which he had earlier
vociferously offered to surrender, so that this Court could act on his petition.
To said reminder he manifested "that he has no pending petition in connection
with Case G.R. No. L-27654, Calero vs. Yaptinchay, said case is now final and
executory;" that this Court's September 28, 1967 resolution did not require him
to do either a positive or negative act; and that since his offer was not accepted,
he "chose to pursue the negative act."
In the exercise of its inherent power to discipline a member of the bar for
contumely and gross misconduct, this Court on November 17, 1967 resolved to
require Atty. Almacen to show cause "why no disciplinary action should be
taken against him." Denying the charges contained in the November 17
resolution, he asked for permission "to give reasons and cause why no
disciplinary action should be taken against him ... in an open and public
hearing." This Court resolved (on December 7) "to require Atty. Almacen to
state, within five days from notice hereof, his reasons for such request,
otherwise, oral argument shall be deemed waived and incident submitted for
decision." To this resolution he manifested that since this Court is "the
complainant, prosecutor and Judge," he preferred to be heard and to answer
questions "in person and in an open and public hearing" so that this Court could
observe his sincerity and candor. He also asked for leave to file a written
explanation "in the event this Court has no time to hear him in person." To give
him the ampliest latitude for his defense, he was allowed to file a written
explanation and thereafter was heard in oral argument.
His written answer, as undignified and cynical as it is unchastened, offers -no
apology. Far from being contrite Atty. Almacen unremittingly repeats his
jeremiad of lamentations, this time embellishing it with abundant sarcasm and
innuendo. Thus:
At the start, let me quote passages from the Holy Bible, Chapter 7, St. Matthew:
—
"Do not judge, that you may not be judged. For with what judgment you judge,
you shall be judged, and with what measure you measure, it shall be measured
to you. But why dost thou see the speck in thy brother's eye, and yet dost not
consider the beam in thy own eye? Or how can thou say to thy brother, "Let me
cast out the speck from thy eye"; and behold, there is a beam in thy own eye?
Thou hypocrite, first cast out the beam from thy own eye, and then thou wilt
see clearly to cast out the speck from thy brother's eyes."
"Therefore all that you wish men to do to you, even to do you also to them: for
this is the Law and the Prophets."
xxx xxx xxx
Your respondent has no intention of disavowing the statements mentioned in
his petition. On the contrary, he refirms the truth of what he stated, compatible
with his lawyer's oath that he will do no falsehood, nor consent to the doing of
any in court. But he vigorously DENY under oath that the underscored
statements contained in the CHARGE are insolent, contemptuous, grossly
disrespectful and derogatory to the individual members of the Court; that they
tend to bring the entire Court, without justification, into disrepute; and
constitute conduct unbecoming of a member of the noble profession of law.
xxx xxx xxx
Respondent stands four-square that his statement is borne by TRUTH and has
been asserted with NO MALICE BEFORE AND AFTER THOUGHT but
mainly motivated with the highest interest of justice that in the particular case
of our client, the members have shown callousness to our various pleas for
JUSTICE, our pleadings will bear us on this matter, ...
xxx xxx xxx
To all these beggings, supplications, words of humility, appeals for charity,
generosity, fairness, understanding, sympathy and above all in the highest
interest of JUSTICE, — what did we get from this COURT? One word,
DENIED, with all its hardiness and insensibility. That was the unfeeling of the
Court towards our pleas and prayers, in simple word, it is plain callousness
towards our particular case.
xxx xxx xxx
Now that your respondent has the guts to tell the members of the Court that
notwithstanding the violation of the Constitution, you remained unpunished,
this Court in the reverse order of natural things, is now in the attempt to inflict
punishment on your respondent for acts he said in good faith.
Did His Honors care to listen to our pleadings and supplications for JUSTICE,
CHARITY, GENEROSITY and FAIRNESS? Did His Honors attempt to justify
their stubborn denial with any semblance of reason, NEVER. Now that your
respondent is given the opportunity to face you, he reiterates the same statement
with emphasis, DID YOU? Sir. Is this. the way of life in the Philippines today,
that even our own President, said: — "the story is current, though nebulous ,is
to its truth, it is still being circulated that justice in the Philippines today is not
what it is used to be before the war. There are those who have told me frankly
and brutally that justice is a commodity, a marketable commodity in the
Philippines."
xxx xxx xxx
We condemn the SIN, not the SINNER. We detest the ACTS, not the ACTOR.
We attack the decision of this Court, not the members. ... We were provoked.
We were compelled by force of necessity. We were angry but we waited for the
finality of the decision. We waited until this Court has performed its duties. We
never interfered nor obstruct in the performance of their duties. But in the end,
after seeing that the Constitution has placed finality on your judgment against
our client and sensing that you have not performed your duties with
"circumspection, carefulness, confidence and wisdom", your Respondent rise
to claim his God given right to speak the truth and his Constitutional right of
free speech.
xxx xxx xxx
The INJUSTICES which we have attributed to this Court and the further
violations we sought to be prevented is impliedly shared by our President. ... .
xxx xxx xxx
What has been abhored and condemned, are the very things that were applied
to us. Recalling Madam Roland's famous apostrophe during the French
revolution, "O Liberty, what crimes are committed in thy name", we may dare
say, "O JUSTICE, what technicalities are committed in thy name' or more
appropriately, 'O JUSTICE, what injustices are committed in thy name."
xxx xxx xxx
We must admit that this Court is not free from commission of any abuses, but
who would correct such abuses considering that yours is a court of last resort.
A strong public opinion must be generated so as to curtail these abuses.
xxx xxx xxx
The phrase, Justice is blind is symbolize in paintings that can be found in all
courts and government offices. We have added only two more symbols, that it
is also deaf and dumb. Deaf in the sense that no members of this Court has ever
heard our cries for charity, generosity, fairness, understanding sympathy and
for justice; dumb in the sense, that inspite of our beggings, supplications, and
pleadings to give us reasons why our appeal has been DENIED, not one word
was spoken or given ... We refer to no human defect or ailment in the above
statement. We only describe the. impersonal state of things and nothing more.
xxx xxx xxx
As we have stated, we have lost our faith and confidence in the members of this
Court and for which reason we offered to surrender our lawyer's certificate, IN
TRUST ONLY. Because what has been lost today may be regained tomorrow.
As the offer was intended as our self-imposed sacrifice, then we alone may
decide as to when we must end our self-sacrifice. If we have to choose between
forcing ourselves to have faith and confidence in the members of the Court but
disregard our Constitution and to uphold the Constitution and be condemned by
the members of this Court, there is no choice, we must uphold the latter.
But overlooking, for the nonce, the vituperative chaff which he claims is not
intended as a studied disrespect to this Court, let us examine the grain of his
grievances.
He chafes at the minute resolution denial of his petition for review. We are quite
aware of the criticisms2 expressed against this Court's practice of rejecting
petitions by minute resolutions. We have been asked to do away with it, to state
the facts and the law, and to spell out the reasons for denial. We have given this
suggestion very careful thought. For we know the abject frustration of a lawyer
who tediously collates the facts and for many weary hours meticulously
marshalls his arguments, only to have his efforts rebuffed with a terse
unadorned denial. Truth to tell, however, most petitions rejected by this Court
are utterly frivolous and ought never to have been lodged at all.3 The rest do
exhibit a first-impression cogency, but fail to, withstand critical scrutiny. By
and large, this Court has been generous in giving due course to petitions for
certiorari.
Be this as it may, were we to accept every case or write a full opinion for every
petition we reject, we would be unable to carry out effectively the burden placed
upon us by the Constitution. The proper role of the Supreme Court, as Mr. Chief
Justice Vinson of the U.S. Supreme Court has defined it, is to decide "only those
cases which present questions whose resolutions will have immediate
importance beyond the particular facts and parties involved." Pertinent here is
the observation of Mr. Justice Frankfurter in Maryland vs. Baltimore Radio
Show, 94 L. ed 562, 566:
A variety of considerations underlie denials of the writ, and as to the same
petition different reasons may read different justices to the same result ... .
Since there are these conflicting, and, to the uninformed, even confusing
reasons for denying petitions for certiorari, it has been suggested from time to
time that the Court indicate its reasons for denial. Practical considerations
preclude. In order that the Court may be enabled to discharge its indispensable
duties, Congress has placed the control of the Court's business, in effect, within
the Court's discretion. During the last three terms the Court disposed of 260,
217, 224 cases, respectively, on their merits. For the same three terms the Court
denied, respectively, 1,260, 1,105,1,189 petitions calling for discretionary
review. If the Court is to do its work it would not be feasible to give reasons,
however brief, for refusing to take these cases. The tune that would be required
is prohibitive. Apart from the fact that as already indicated different reasons not
infrequently move different members of the Court in concluding that a
particular case at a particular time makes review undesirable.
Six years ago, in Novino, et al., vs. Court of Appeals, et al., 1,21098, May 31,
1963 (60 O.G. 8099), this Court, through the then Chief Justice Cesar Bengzon,
articulated its considered view on this matter. There, the petitioners counsel
urged that a "lack of merit" resolution violates Section 12 of Article VIII of the
Constitution. Said Chief Justice Bengzon:
In connection with identical short resolutions, the same question has been raised
before; and we held that these "resolutions" are not "decisions" within the above
constitutional requirement. They merely hold that the petition for review should
not be entertained in view of the provisions of Rule 46 of the Rules of Court;
and even ordinary lawyers have all this time so understood it. It should be
remembered that a petition to review the decision of the Court of Appeals is not
a matter of right, but of sound judicial discretion; and so there is no need to fully
explain the court's denial. For one thing, the facts and the law are already
mentioned in the Court of Appeals' opinion.
By the way, this mode of disposal has — as intended — helped the Court in
alleviating its heavy docket; it was patterned after the practice of the U.S.
Supreme Court, wherein petitions for review are often merely ordered
"dismissed".
We underscore the fact that cases taken to this Court on petitions for certiorari
from the Court of Appeals have had the benefit of appellate review. Hence, the
need for compelling reasons to buttress such petitions if this Court is to be
moved into accepting them. For it is axiomatic that the supervisory jurisdiction
vested upon this Court over the Court of Appeals is not intended to give every
losing party another hearing. This axiom is implied in sec. 4 of Rule 45 of the
Rules of Court which recites:
Review of Court of Appeals' decision discretionary.—A review is not a matter
of right but of sound judicial discretion, and will be granted only when there are
special and important reasons therefor. The following, while neither controlling
nor fully measuring the court's discretion, indicate the character of reasons
which will be considered:
(a) When the Court of Appeals has decided a question of substance, not
theretofore determined by the Supreme Court, nor has decided it in a way
probably not in accord with law or with the applicable decisions of the Supreme
Court;
(b) When the Court of Appeals has so far departed from the accepted and usual
course of judicial proceedings, or so far sanctioned such departure by the lower
court, as to call for the exercise of the power of supervision.
Recalling Atty. Almacen's petition for review, we found, upon a thoroughgoing
examination of the pleadings. and records, that the Court of Appeals had fully
and correctly considered the dismissal of his appeal in the light of the law and
applicable decisions of this Court. Far from straying away from the "accepted
and usual course of judicial proceedings," it traced the procedural lines etched
by this Court in a number of decisions. There was, therefore, no need for this
Court to exercise its supervisory power.
As a law practitioner who was admitted to the Bar as far back as 1941, Atty.
Almacen knew — or ought to have known — that for a motion for
reconsideration to stay the running of the period of appeal, the movant must not
only serve a copy of the motion upon the adverse party (which he did), but also
notify the adverse party of the time and place of hearing (which admittedly he
did not). This rule was unequivocally articulated in Manila Surety & Fidelity
vs. Batu Construction & Co., supra:
The written notice referred to evidently is prescribed for motions in general by
Rule 15, Sections 4 and 5 (formerly Rule 26), which provides that such notice
shall state the time, and place of hearing and shall be served upon all the Parties
concerned at least three days in advance. And according to Section 6 of the
same Rule no motion shall be acted upon by the court without proof of such
notice. Indeed it has been held that in such a case the motion is nothing but a
useless piece of paper (Philippine National Bank v. Damasco, I,18638, Feb. 28,
1963; citing Manakil v. Revilla, 42 Phil. 81; Roman Catholic Bishop of Lipa v.
Municipality of Unisan, 41 Phil. 866; and Director of Lands vs. Sanz, 45 Phil.
117). The reason is obvious: Unless the movant sets the time and place of
hearing the Court would have no way to determine whether that party agrees to
or objects to the motion, and if he objects, to hear him on his objection, since
the Rules themselves do not fix any period within which he may file his reply
or opposition.
If Atty. Almacen failed to move the appellate court to review the lower court's
judgment, he has only himself to blame. His own negligence caused the
forfeiture of the remedy of appeal, which, incidentally, is not a matter of right.
To shift away from himself the consequences of his carelessness, he looked for
a "whipping boy." But he made sure that he assumed the posture of a martyr,
and, in offering to surrender his professional certificate, he took the liberty of
vilifying this Court and inflicting his exacerbating rancor on the members
thereof. It would thus appear that there is no justification for his scurrilous and
scandalous outbursts.
Nonetheless we gave this unprecedented act of Atty. Almacen the most
circumspect consideration. We know that it is natural for a lawyer to express
his dissatisfaction each time he loses what he sanguinely believes to be a
meritorious case. That is why lawyers are given 'wide latitude to differ with,
and voice their disapproval of, not only the courts' rulings but, also the manner
in which they are handed down.
Moreover, every citizen has the right to comment upon and criticize the
actuations of public officers. This right is not diminished by the fact that the
criticism is aimed at a judicial authority,4 or that it is articulated by a lawyer.5
Such right is especially recognized where the criticism concerns a concluded
litigation,6 because then the court's actuations are thrown open to public
consumption.7 "Our decisions and all our official actions," said the Supreme
Court of Nebraska,8 "are public property, and the press and the people have the
undoubted right to comment on them, criticize and censure them as they see fit.
Judicial officers, like other public servants, must answer for their official
actions before the chancery of public opinion."
The likely danger of confusing the fury of human reaction to an attack on one's
integrity, competence and honesty, with "imminent danger to the administration
of justice," is the reason why courts have been loath to inflict punishment on
those who assail their actuations.9 This danger lurks especially in such a case
as this where those who Sit as members of an entire Court are themselves
collectively the aggrieved parties.
Courts thus treat with forbearance and restraint a lawyer who vigorously assails
their actuations. 10 For courageous and fearless advocates are the strands that
weave durability into the tapestry of justice. Hence, as citizen and officer of the
court, every lawyer is expected not only to exercise the right, but also to
consider it his duty to expose the shortcomings and indiscretions of courts and
judges.
Courts and judges are not sacrosanct. 12 They should and expect critical
evaluation of their performance. 13 For like the executive and the legislative
branches, the judiciary is rooted in the soil of democratic society, nourished by
the periodic appraisal of the citizens whom it is expected to serve.
Well-recognized therefore is the right of a lawyer, both as an officer of the court
and as a citizen, to criticize in properly respectful terms and through legitimate
channels the acts of courts and judges. The reason is that
An attorney does not surrender, in assuming the important place accorded to
him in the administration of justice, his right as a citizen to criticize the
decisions of the courts in a fair and respectful manner, and the independence of
the bar, as well as of the judiciary, has always been encouraged by the courts.
(In re Ades, 6 F Supp. 487) .
Criticism of the courts has, indeed, been an important part of the traditional
work of the bar. In the prosecution of appeals, he points out the errors of lower
courts. In written for law journals he dissects with detachment the doctrinal
pronouncements of courts and fearlessly lays bare for -all to see that flaws and
inconsistence" of the doctrines (Hill v. Lyman, 126 NYS 2d 286). As aptly
stated by Chief Justice Sharswood in Ex Parte Steinman, 40 Am. Rep. 641:
No class of the community ought to be allowed freer scope in the expansion or
publication of opinions as to the capacity, impartiality or integrity of judges
than members of the bar. They have the best opportunities for observing and
forming a correct judgment. They are in constant attendance on the courts. ...
To say that an attorney can only act or speak on this subject under liability to
be called to account and to be deprived of his profession and livelihood, by the
judge or judges whom he may consider it his duty to attack and expose, is a
position too monstrous to be
entertained. ... .
Hence, as a citizen and as Officer of the court a lawyer is expected not only to
exercise the right, but also to consider it his duty to avail of such right. No law
may abridge this right. Nor is he "professionally answerable for a scrutiny into
the official conduct of the judges, which would not expose him to legal
animadversion as a citizen." (Case of Austin, 28 Am. Dee. 657, 665).
Above all others, the members of the bar have the beat Opportunity to become
conversant with the character and efficiency of our judges. No class is less likely
to abuse the privilege, as no other class has as great an interest in the
preservation of an able and upright bench. (State Board of Examiners in Law v.
Hart, 116 N.W. 212, 216)
To curtail the right of a lawyer to be critical of the foibles of courts and judges
is to seal the lips of those in the best position to give advice and who might
consider it their duty to speak disparagingly. "Under such a rule," so far as the
bar is concerned, "the merits of a sitting judge may be rehearsed, but as to his
demerits there must be profound silence." (State v. Circuit Court, 72 N.W. 196)
But it is the cardinal condition of all such criticism that it shall be bona fide,
and shall not spill over the walls of decency and propriety. A wide chasm exists
between fair criticism, on the One hand, and abuse and slander of courts and the
judges thereof, on the other. Intemperate and unfair criticism is a gross violation
of the duty of respect to courts. It is Such a misconduct that subjects a lawyer
to disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties which
are not mere flux and ferment. His investiture into the legal profession places
upon his shoulders no burden more basic, more exacting and more imperative
than that of respectful behavior toward the courts. He vows solemnly to conduct
himself "with all good fidelity ... to the courts; 14 and the Rules of Court
constantly remind him "to observe and maintain the respect due to courts of
justice and judicial officers." 15 The first canon of legal ethics enjoins him "to
maintain towards the courts a respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the maintenance of its
supreme importance."
As Mr. Justice Field puts it:
... the obligation which attorneys impliedly assume, if they do not by express
declaration take upon themselves, when they are admitted to the Bar, is not
merely to be obedient to the Constitution and laws, but to maintain at all times
the respect due to courts of justice and judicial officers. This obligation is not
discharged by merely observing the rules of courteous demeanor in open court,
but includes abstaining out of court from all insulting language and offensive
conduct toward judges personally for their judicial acts. (Bradley, v. Fisher, 20
Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to
the orderly administration of justice. Hence, in the — assertion of their clients'
rights, lawyers — even those gifted with superior intellect are enjoined to rein
up their tempers.
The counsel in any case may or may not be an abler or more learned lawyer
than the judge, and it may tax his patience and temper to submit to rulings which
he regards as incorrect, but discipline and self-respect are as necessary to the
orderly administration of justice as they are to the effectiveness of an army. The
decisions of the judge must be obeyed, because he is the tribunal appointed to
decide, and the bar should at all times be the foremost in rendering respectful
submission. (In Re Scouten, 40 Atl. 481)
We concede that a lawyer may think highly of his intellectual endowment That
is his privilege. And he may suffer frustration at what he feels is others' lack of
it. That is his misfortune. Some such frame of mind, however, should not be
allowed to harden into a belief that he may attack a court's decision in words
calculated to jettison the time-honored aphorism that courts are the temples of
right. (Per Justice Sanchez in Rheem of the Philippines vs. Ferrer, L-22979.
June 26, 1967)
In his relations with the courts, a lawyer may not divide his personality so as to
be an attorney at one time and a mere citizen at another. Thus, statements made
by an attorney in private conversations or communications 16 or in the course
of a political, campaign, 17 if couched in insulting language as to bring into
scorn and disrepute the administration of justice, may subject the attorney to
disciplinary action.
Of fundamental pertinence at this juncture is an examination of relevant parallel
precedents.
1. Admitting that a "judge as a public official is neither sacrosanct nor immune
to public criticism of his conduct in office," the Supreme Court of Florida in
State v. Calhoon, 102 So. 2d 604, 608, nevertheless declared that "any conduct
of a lawyer which brings into scorn and disrepute the administration of justice
demands condemnation and the application of appropriate penalties," adding
that:
It would be contrary to, every democratic theory to hold that a judge or a court
is beyond bona fide comments and criticisms which do not exceed the bounds
of decency and truth or which are not aimed at. the destruction of public
confidence in the judicial system as such. However, when the likely impairment
of the administration of justice the direct product of false and scandalous
accusations then the rule is otherwise.
2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for putting out
and circulating a leaflet entitled "JUSTICE??? IN OTUMWA," which accused
a municipal judge of having committed judicial error, of being so prejudiced as
to deny his clients a fair trial on appeal and of being subject to the control of a
group of city officials. As a prefatory statement he wrote: "They say that Justice
is BLIND, but it took Municipal Judge Willard to prove that it is also DEAF
and DUMB!" The court did not hesitate to find that the leaflet went much further
than the accused, as a lawyer, had a right to do.
The entire publication evidences a desire on the part Of the accused to belittle
and besmirch the court and to bring it into disrepute with the general public.
3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California affirmed
the two-year suspension of an attorney who published a circular assailing a
judge who at that time was a candidate for re-election to a judicial office. The
circular which referred to two decisions of the judge concluded with a statement
that the judge "used his judicial office to enable -said bank to keep that money."
Said the court:
We are aware that there is a line of authorities which place no limit to the
criticism members of the bar may make regarding the capacity, impartiality, or
integrity of the courts, even though it extends to the deliberate publication by
the attorney capable of correct reasoning of baseless insinuations against the
intelligence and integrity of the highest courts. See State Board, etc. v. Hart.
116 N.W. 212, 17 LRA (N.S.) 585, 15 Ann Cas 197 and note: Ex parte Steinman
95 Pac. 220, 40 Am. Rep. 637. In the first case mentioned it was observed, for
instance:
"It may be (although we do not so decide) that a libelous publication by an
attorney, directed against a judicial officer, could be so vile and of such a nature
as to justify the disbarment of its author."
Yet the false charges made by an attorney in that case were of graver character
than those made by the respondent here. But, in our view, the better rule is that
which requires of those who are permitted to enjoy the privilege of practicing
law the strictest observance at all times of the principles of truth, honesty and
fairness, especially in their criticism of the courts, to the end that the public
confidence in the due administration of justice be upheld, and the dignity and
usefulness of the courts be maintained. In re Collins, 81 Pac. 220.
4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an attorney,
representing a woman who had been granted a divorce, attacked the judge who
set aside the decree on bill of review. He wrote the judge a threatening letter
and gave the press the story of a proposed libel suit against the judge and others.
The letter began:
Unless the record in In re Petersen v. Petersen is cleared up so that my name is
protected from the libel, lies, and perjury committed in the cases involved, I
shall be compelled to resort to such drastic action as the law allows and the case
warrants.
Further, he said: "However let me assure you I do not intend to allow such
dastardly work to go unchallenged," and said that he was engaged in dealing
with men and not irresponsible political manikins or appearances of men.
Ordering the attorney's disbarment, the Supreme Court of Illinois declared:
... Judges are not exempt from just criticism, and whenever there is proper
ground for serious complaint against a judge, it is the right and duty of a lawyer
to submit his grievances to the proper authorities, but the public interest and the
administration of the law demand that the courts should have the confidence
and respect of the people. Unjust criticism, insulting language, and offensive
conduct toward the judges personally by attorneys, who are officers of the court,
which tend to bring the courts and the law into disrepute and to destroy public
confidence in their integrity, cannot be permitted. The letter written to the judge
was plainly an attempt to intimidate and influence him in the discharge of
judicial functions, and the bringing of the unauthorized suit, together with the
write-up in the Sunday papers, was intended and calculated to bring the court
into disrepute with the public.
5. In a public speech, a Rhode Island lawyer accused the courts of the state of
being influenced by corruption and greed, saying that the seats of the Supreme
Court were bartered. It does not appear that the attorney had criticized any of
the opinions or decisions of the Court. The lawyer was charged with
unprofessional conduct, and was ordered suspended for a period of two years.
The Court said:
A calumny of that character, if believed, would tend to weaken the authority of
the court against whose members it was made, bring its judgments into
contempt, undermine its influence as an unbiased arbiter of the people's right,
and interfere with the administration of justice. ...
Because a man is a member of the bar the court will not, under the guise of
disciplinary proceedings, deprive him of any part of that freedom of speech
which he possesses as a citizen. The acts and decisions of the courts of this state,
in cases that have reached final determination, are not exempt from fair and
honest comment and criticism. It is only when an attorney transcends the limits
of legitimate criticism that he will be held responsible for an abuse of his liberty
of speech. We well understand that an independent bar, as well as independent
court, is always a vigilant defender of civil rights. In Re Troy, 111 Atl. 723.
725.
6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six months
for submitting to an appellate court an affidavit reflecting upon the judicial
integrity of the court from which the appeal was taken. Such action, the Court
said, constitutes unprofessional conduct justifying suspension from practice,
notwithstanding that he fully retracted and withdrew the statements, and
asserted that the affidavit was the result of an impulse caused by what he
considered grave injustice. The Court said:
We cannot shut our eyes to the fact that there is a growing habit in the profession
of criticising the motives and integrity of judicial officers in the discharge of
their duties, and thereby reflecting on the administration of justice and creating
the impression that judicial action is influenced by corrupt or improper motives.
Every attorney of this court, as well as every other citizen, has the right and it
is his duty, to submit charges to the authorities in whom is vested the power to
remove judicial officers for any conduct or act of a judicial officer that tends to
show a violation of his duties, or would justify an inference that he is false to
his trust, or has improperly administered the duties devolved upon him; and
such charges to the tribunal, if based upon reasonable inferences, will be
encouraged, and the person making them
protected. ... While we recognize the inherent right of an attorney in a case
decided against him, or the right of the Public generally, to criticise the
decisions of the courts, or the reasons announced for them, the habit of
criticising the motives of judicial officers in the performance of their official
duties, when the proceeding is not against the officers whose acts or motives
are criticised, tends to subvert the confidence of the community in the courts of
justice and in the administration of justice; and when such charges are made by
officers of the courts, who are bound by their duty to protect the administration
of justice, the attorney making such charges is guilty of professional
misconduct.
7. In In Re Mitchell, 71 So. 467, a lawyer published this statement:
I accepted the decision in this case, however, with patience, barring possible
temporary observations more or less vituperative and finally concluded, that, as
my clients were foreigners, it might have been expecting too much to look for
a decision in their favor against a widow residing here.
The Supreme Court of Alabama declared that:
... the expressions above set out, not only transcend the bounds of propriety and
privileged criticism, but are an unwarranted attack, direct, or by insinuation and
innuendo, upon the motives and integrity of this court, and make out a prima
facie case of improper conduct upon the part of a lawyer who holds a license
from this court and who is under oath to demean himself with all good fidelity
to the court as well as to his client.
The charges, however, were dismissed after the attorney apologized to the
Court.
8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney published
in a newspaper an article in which he impugned the motives of the court and its
members to try a case, charging the court of having arbitrarily and for a sinister
purpose undertaken to suspend the writ of habeas corpus. The Court suspended
the respondent for 30 days, saying that:
The privileges which the law gives to members of the bar is one most subversive
of the public good, if the conduct of such members does not measure up to the
requirements of the law itself, as well as to the ethics of the profession. ...
The right of free speech and free discussion as to judicial determination is of
prime importance under our system and ideals of government. No right thinking
man would concede for a moment that the best interest to private citizens, as
well as to public officials, whether he labors in a judicial capacity or otherwise,
would be served by denying this right of free speech to any individual. But such
right does not have as its corollary that members of the bar who are sworn to
act honestly and honorably both with their client and with the courts where
justice is administered, if administered at all, could ever properly serve their
client or the public good by designedly misstating facts or carelessly asserting
the law. Truth and honesty of purpose by members of the bar in such discussion
is necessary. The health of a municipality is none the less impaired by a polluted
water supply than is the health of the thought of a community toward the
judiciary by the filthy wanton, and malignant misuse of members of the bar of
the confidence the public, through its duly established courts, has reposed in
them to deal with the affairs of the private individual, the protection of whose
rights he lends his strength and money to maintain the judiciary. For such
conduct on the part of the members of the bar the law itself demands retribution
— not the court.
9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the filing of an
affidavit by an attorney in a pending action using in respect to the several judges
the terms criminal corrupt, and wicked conspiracies,," "criminal confederates,"
"colossal and confident insolence," "criminal prosecution," "calculated
brutality," "a corrupt deadfall," and similar phrases, was considered conduct
unbecoming of a member of the bar, and the name of the erring lawyer was
ordered stricken from the roll of attorneys.
10. In State Board of Examiners v. Hart, 116 N.W. 215, the erring attorney
claimed that greater latitude should be allowed in case of criticism of cases
finally adjudicated than in those pending. This lawyer wrote a personal letter to
the Chief Justice of the Supreme Court of Minnesota impugning both the
intelligence and the integrity of the said Chief Justice and his associates in the
decisions of certain appeals in which he had been attorney for the defeated
litigants. The letters were published in a newspaper. One of the letters contained
this paragraph:
You assigned it (the property involved) to one who has no better right to it than
the burglar to his plunder. It seems like robbing a widow to reward a fraud, with
the court acting as a fence, or umpire, watchful and vigilant that the widow got
no undue
Advantage. ... The point is this: Is a proper motive for the decisions
discoverable, short of assigning to the court emasculated intelligence, or a
constipation of morals and faithlessness to duty? If the state bar association, or
a committee chosen from its rank, or the faculty of the University Law School,
aided by the researches of its hundreds of bright, active students, or if any
member of the court, or any other person, can formulate a statement of a correct
motive for the decision, which shall not require fumigation before it is stated,
and quarantine after it is made, it will gratify every right-minded citizen of the
state to read it.
The Supreme Court of Minnesota, in ordering the suspension of the attorney for
six months, delivered its opinion as follows:
The question remains whether the accused was guilty of professional
misconduct in sending to the Chief Justice the letter addressed to him. This was
done, as we have found, for the very purpose of insulting him and the other
justices of this court; and the insult was so directed to the Chief Justice
personally because of acts done by him and his associates in their official
capacity. Such a communication, so made, could never subserve any good
purpose. Its only effect in any case would be to gratify the spite of an angry
attorney and humiliate the officers so assailed. It would not and could not ever
enlighten the public in regard to their judicial capacity or integrity. Nor was it
an exercise by the accused of any constitutional right, or of any privilege which
any reputable attorney, uninfluenced by passion, could ever have any occasion
or desire to assert. No judicial officer, with due regard to his position, can resent
such an insult otherwise than by methods sanctioned by law; and for any words,
oral or written, however abusive, vile, or indecent, addressed secretly to the
judge alone, he can have no redress in any action triable by a jury. "The sending
of a libelous communication or libelous matter to the person defamed does not
constitute an actionable publication." 18 Am. & Eng. Enc. Law (2d Ed.) p. 1017.
In these respects the sending by the accused of this letter to the Chief Justice
was wholly different from his other acts charged in the accusation, and, as we
have said, wholly different principles are applicable thereto.
The conduct of the accused was in every way discreditable; but so far as he
exercised the rights of a citizen, guaranteed by the Constitution and sanctioned
by considerations of public policy, to which reference has been made, he was
immune, as we hold, from the penalty here sought to be enforced. To that extent
his rights as a citizen were paramount to the obligation which he had assumed
as an officer of this court. When, however he proceeded and thus assailed the
Chief Justice personally, he exercised no right which the court can recognize,
but, on the contrary, willfully violated his obligation to maintain the respect due
to courts and judicial officers. "This obligation is not discharged by merely
observing the rules of courteous demeanor in open court, but it includes
abstaining out of court from all insulting language and offensive conduct toward
the judges personally for their official acts." Bradley v. Fisher, 13 Wall. (U.S.)
355, 20 L. Ed. 646. And there appears to be no distinction, as regards the
principle involved, between the indignity of an assault by an attorney upon a
judge, induced by his official act, and a personal insult for like cause by written
or spoken words addressed to the judge in his chambers or at his home or
elsewhere. Either act constitutes misconduct wholly different from criticism of
judicial acts addressed or spoken to others. The distinction made is, we think
entirely logical and well sustained by authority. It was recognized in Ex parte
McLeod supra. While the court in that case, as has been shown, fully sustained
the right of a citizen to criticise rulings of the court in actions which are ended,
it held that one might be summarily punished for assaulting a judicial officer,
in that case a commissioner of the court, for his rulings in a cause wholly
concluded. "Is it in the power of any person," said the court, "by insulting or
assaulting the judge because of official acts, if only the assailant restrains his
passion until the judge leaves the building, to compel the judge to forfeit either
his own self-respect to the regard of the people by tame submission to the
indignity, or else set in his own person the evil example of punishing the insult
by taking the law in his own hands? ... No high-minded, manly man would hold
judicial office under such conditions."
That a communication such as this, addressed to the Judge personally,
constitutes professional delinquency for which a professional punishment may
be imposed, has been directly decided. "An attorney who, after being defeated
in a case, wrote a personal letter to the trial justice, complaining of his conduct
and reflecting upon his integrity as a justice, is guilty of misconduct and will be
disciplined by the court." Matter of Manheim 133 App. Div. 136, 99 N.Y. Supp.
87 The same is held in Re Griffin (City Ct.) 1 N.Y. 7 and in Re Wilkes (City
Ct.) 3 N.Y. In the latter case it appeared that the accused attorney had addressed
a sealed letter to a justice of the City Court of New York, in which it was stated,
in reference to his decision: "It is not law; neither is it common sense. The result
is I have been robbed of 80." And it was decided that, while such conduct was
not a contempt under the state, the matter should be "called to the attention of
the Supreme Court, which has power to discipline the attorney." "If," says the
court, "counsel learned in the law are permitted by writings leveled at the heads
of judges, to charge them with ignorance, with unjust rulings, and with robbery,
either as principals or accessories, it will not be long before the general public
may feel that they may redress their fancied grievances in like manner, and thus
the lot of a judge will be anything but a happy one, and the administration of
justice will fall into bad repute."
The recent case of Johnson v. State (Ala.) 44 South. 671, was in this respect
much the same as the case at bar. The accused, an attorney at law, wrote and
mailed a letter to the circuit judge, which the latter received by due course of
mail, at his home, while not holding court, and which referred in insulting terms
to the conduct of the judge in a cause wherein the accused had been one of the
attorneys. For this it was held that the attorney was rightly disbarred in having
"willfully failed to maintain respect due to him [the judge] as a judicial officer,
and thereby breached his oath as an attorney." As recognizing the same
principle, and in support of its application to the facts of this case, we cite the
following: Ex parte Bradley, 7 Wall (U.S.) 364, 19 L. Ed. 214; Beene v. State,
22 Ark. 149; Commonwealth v. Dandridge, 2 Va. Cas. 408; People v. Green, 7
Colo 237, 244, 3 Pac. 65, 374, 49 Am. Rep. 351; Smith's Appeal, 179 Pa. 14,
36 Atl. 134; Scouten's Appeal, 186 Pa. 270, Atl. 481.
Our conclusion is that the charges against the accused have been so far sustained
as to make it our duty to impose such a penalty as may be sufficient lesson to
him and a suitable warning to others. ...
11. In Cobb v. United States, 172 F. 641, the court affirmed a lawyer's
suspension for 18 months for publishing a letter in a newspaper in which he
accused a judge of being under the sinister influence of a gang that had
paralyzed him for two years.
12. In In Re Graves, 221 Pac. 411, the court held that an attorney's unjustifiable
attack against the official acts and decisions of a judge constitutes "moral
turpitude." There, the attorney was disbarred for criticising not only the judge,
but his decisions in general claiming that the judge was dishonest in reaching
his decisions and unfair in his general conduct of a case.
13. In In Re Doss, 12 N.E. 2d 659, an attorney published newspaper articles
after the trial of cases, criticising the court in intemperate language. The
invariable effect of this sort of propaganda, said the court, is to breed disrespect
for courts and bring the legal profession into disrepute with the public, for which
reason the lawyer was disbarred.
14. In State v. Grimes, 354 Pac. 2d 108, an attorney, dissatisfied with the loss
of a case, prepared over a period of years vicious attacks on jurists. The
Oklahoma Supreme Court declared that his acts involved such gross moral
turpitude as to make him unfit as a member of the bar. His disbarment was
ordered, even though he expressed an intention to resign from the bar.
The teaching derived from the above disquisition and impressive affluence of
judicial pronouncements is indubitable: Post-litigation utterances or
publications, made by lawyers, critical of the courts and their judicial
actuations, whether amounting to a crime or not, which transcend the
permissible bounds of fair comment and legitimate criticism and thereby tend
to bring them into disrepute or to subvert public confidence in their integrity
and in the orderly administration of justice, constitute grave professional
misconduct which may be visited with disbarment or other lesser appropriate
disciplinary sanctions by the Supreme Court in the exercise of the prerogatives
inherent in it as the duly constituted guardian of the morals and ethics of the
legal fraternity.
Of course, rarely have we wielded our disciplinary powers in the face of
unwarranted outbursts of counsel such as those catalogued in the above-cited
jurisprudence. Cases of comparable nature have generally been disposed of
under the power of courts to punish for contempt which, although resting on
different bases and calculated to attain a different end, nevertheless illustrates
that universal abhorrence of such condemnable practices.
A perusal of the more representative of these instances may afford
enlightenment.
1. In Salcedo vs. Hernandez, 61 Phil. 724, where counsel branded the denial of
his motion for reconsideration as "absolutely erroneous and constituting an
outrage to the rigths of the petitioner Felipe Salcedo and a mockery of the
popular will expressed at the polls," this Court, although conceding that
It is right and plausible that an attorney, in defending the cause and rights of his
client, should do so with all the fervor and energy of which he is capable, but it
is not, and never will be so for him to exercise said right by resorting to
intimidation or proceeding without the propriety and respect which the dignity
of the courts requires. The reason for this is that respect for the courts guarantees
the stability of their institution. Without such guaranty, said institution would
be resting on a very shaky foundation,
found counsel guilty of contempt inasmuch as, in its opinion, the statements
made disclosed
... an inexcusable disrespect of the authority of the court and an intentional
contempt of its dignity, because the court is thereby charged with no less than
having proceeded in utter disregard of the laws, the rights to the parties, and 'of
the untoward consequences, or with having abused its power and mocked and
flouted the rights of Attorney Vicente J. Francisco's client ... .
2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author of the Press
Freedom Law, reaching to, the imprisonment for contempt of one Angel Parazo,
who, invoking said law, refused to divulge the source of a news item carried in
his paper, caused to be published in i local newspaper a statement expressing
his regret "that our High Tribunal has not only erroneously interpreted said law,
but it is once more putting in evidence the incompetency or narrow mindedness
of the majority of its members," and his belief that "In the wake of so many
blunders and injustices deliberately committed during these last years, ... the
only remedy to put an end to go much evil, is to change the members of the
Supreme Court," which tribunal he denounced as "a constant peril to liberty and
democracy" and "a far cry from the impregnable bulwark of justice of those
memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo and
other learned jurists who were the honor and glory of the Philippine Judiciary."
He there also announced that one of the first measures he would introduce in
then forthcoming session of Congress would have for its object the complete
reorganization of the Supreme Court. Finding him in contempt, despite his
avowals of good faith and his invocation of the guarantee of free speech, this
Court declared:
But in the above-quoted written statement which he caused to be published in
the press, the respondent does not merely criticize or comment on the decision
of the Parazo case, which was then and still is pending consideration by this
Court upon petition of Angel Parazo. He not only intends to intimidate the
members of this Court with the presentation of a bill in the next Congress, of
which he is one of the members, reorganizing the Supreme Court and reducing
the number of Justices from eleven, so as to change the members of this Court
which decided the Parazo case, who according to his statement, are incompetent
and narrow minded, in order to influence the final decision of said case by this
Court, and thus embarrass or obstruct the administration of justice. But the
respondent also attacks the honesty and integrity of this Court for the apparent
purpose of bringing the Justices of this Court into disrepute and degrading the
administration. of justice ... .
To hurl the false charge that this Court has been for the last years committing
deliberately so many blunders and injustices, that is to say, that it has been
deciding in favor of Que party knowing that the law and justice is on the part of
the adverse party and not on the one in whose favor the decision was rendered,
in many cases decided during the last years, would tend necessarily to
undermine the confidence of the people in the honesty and integrity of the
members of this Court, and consequently to lower ,or degrade the
administration of justice by this Court. The Supreme Court of the Philippines
is, under the Constitution, the last bulwark to which the Filipino people may
repair to obtain relief for their grievances or protection of their rights when these
are trampled upon, and if the people lose their confidence in the honesty and
integrity of the members of this Court and believe that they cannot expect
justice therefrom, they might be driven to take the law into their own hands, and
disorder and perhaps chaos might be the result. As a member of the bar and an
officer of the courts, Atty. Vicente Sotto, like any other, is in duty bound to
uphold the dignity and authority of this Court, to which he owes fidelity
according to the oath he has taken as such attorney, and not to promote distrust
in the administration of justice. Respect to the courts guarantees the stability of
other institutions, which without such guaranty would be resting on a very
shaky foundation.
Significantly, too, the Court therein hastened to emphasize that
... an attorney as an officer of the court is under special obligation to be
respectful in his conduct and communication to the courts; he may be removed
from office or stricken from the roll of attorneys as being guilty of flagrant
misconduct (17 L.R.A. [N.S.], 586, 594.)
3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against Alfonso
Ponce Enrile, et al., supra, where counsel charged this Court with having
"repeatedly fallen" into ,the pitfall of blindly adhering to its previous
"erroneous" pronouncements, "in disregard of the law on jurisdiction" of the
Court of Industrial Relations, our condemnation of counsel's misconduct was
unequivocal. Articulating the sentiments of the Court, Mr. Justice Sanchez
stressed:
As we look back at the language (heretofore quoted) employed in the motion
for reconsideration, implications there are which inescapably arrest attention. It
speaks of one pitfall into which this Court has repeatedly fallen whenever the
jurisdiction of the Court of Industrial Relations comes into question. That pitfall
is the tendency of this Court to rely on its own pronouncements in disregard of
the law on jurisdiction. It makes a sweeping charge that the decisions of this
Court, blindly adhere to earlier rulings without as much as making any reference
to and analysis of the pertinent statute governing the jurisdiction of the
industrial court. The plain import of all these is that this Court is so patently
inept that in determining the jurisdiction of the industrial court, it has committed
error and continuously repeated that error to the point of perpetuation. It
pictures this Court as one which refuses to hew to the line drawn by the law on
jurisdictional boundaries. Implicit in the quoted statements is that the
pronouncements of this Court on the jurisdiction of the industrial court are not
entitled to respect. Those statements detract much from the dignity of and
respect due this Court. They bring into question the capability of the members
— and some former members of this Court to render justice. The second
paragraph quoted yields a tone of sarcasm which counsel labelled as "so called"
the "rule against splitting of jurisdiction."
Similar thoughts and sentiments have been expressed in other cases 18 which,
in the interest of brevity, need not now be reviewed in detail.
Of course, a common denominator underlies the aforecited cases — all of them
involved contumacious statements made in pleadings filed pending litigation.
So that, in line with the doctrinal rule that the protective mantle of contempt
may ordinarily be invoked only against scurrilous remarks or malicious
innuendoes while a court mulls over a pending case and not after the conclusion
thereof, 19 Atty. Almacen would now seek to sidestep the thrust of a contempt
charge by his studied emphasis that the remarks for which he is now called upon
to account were made only after this Court had written finis to his appeal. This
is of no moment.
The rule that bars contempt after a judicial proceeding has terminated, has lost
much of its vitality. For sometime, this was the prevailing view in this
jurisdiction. The first stir for a modification thereof, however, came when, in
People vs. Alarcon, 20 the then Chief Justice Manuel V. Moran dissented with
the holding of the majority, speaking thru Justice Jose P. Laurel, which upheld
the rule above-adverted to. A complete disengagement from the settled rule was
later to be made in In re Brillantes, 21 a contempt proceeding, where the editor
of the Manila Guardian was adjudged in contempt for publishing an editorial
which asserted that the 1944 Bar Examinations were conducted in a farcical
manner after the question of the validity of the said examinations had been
resolved and the case closed. Virtually, this was an adoption of the view
expressed by Chief Justice Moran in his dissent in Alarcon to the effect that
them may still be contempt by publication even after a case has been terminated.
Said Chief Justice Moran in Alarcon:
A publication which tends to impede, obstruct, embarrass or influence the
courts in administering justice in a pending suit or proceeding, constitutes
criminal contempt which is 'summarily punishable by courts. A publication
which tends to degrade the courts and to destroy public confidence in them or
that which tends to bring them in any way into disrepute, constitutes likewise
criminal contempt, and is equally punishable by courts. What is sought, in the
first kind of contempt, to be shielded against the influence of newspaper
comments, is the all-important duty of the courts to administer justice in the
decision of a pending case. In the second kind of contempt, the punitive hand
of justice is extended to vindicate the courts from any act or conduct calculated
to bring them into disfavor or to destroy public confidence in them. In the first
there is no contempt where there is no action pending, as there is no decision
which might in any way be influenced by the newspaper publication. In the
second, the contempt exists, with or without a pending case, as what is sought
to be protected is the court itself and its dignity. Courts would lose their utility
if public confidence in them is destroyed.
Accordingly, no comfort is afforded Atty. Almacen by the circumstance that his
statements and actuations now under consideration were made only after the
judgment in his client's appeal had attained finality. He could as much be liable
for contempt therefor as if it had been perpetrated during the pendency of the
said appeal.
More than this, however, consideration of whether or not he could be held liable
for contempt for such post litigation utterances and actuations, is here
immaterial. By the tenor of our Resolution of November 17, 1967, we have
confronted the situation here presented solely in so far as it concerns Atty.
Almacen's professional identity, his sworn duty as a lawyer and his fitness as
an officer of this Court, in the exercise of the disciplinary power the morals
inherent in our authority and duty to safeguard and ethics of the legal profession
and to preserve its ranks from the intrusions of unprincipled and unworthy
disciples of the noblest of callings. In this inquiry, the pendency or non-
pendency of a case in court is altogether of no consequence. The sole objective
of this proceeding is to preserve the purity of the legal profession, by removing
or suspending a member whose misconduct has proved himself unfit to continue
to be entrusted with the duties and responsibilities belonging to the office of an
attorney.
Undoubtedly, this is well within our authority to do. By constitutional mandate,
22 our is the solemn duty, amongst others, to determine the rules for admission
to the practice of law. Inherent in this prerogative is the corresponding authority
to discipline and exclude from the practice of law those who have proved
themselves unworthy of continued membership in the Bar. Thus —
The power to discipline attorneys, who are officers of the court, is an inherent
and incidental power in courts of record, and one which is essential to an orderly
discharge of judicial functions. To deny its existence is equivalent to a
declaration that the conduct of attorneys towards courts and clients is not subject
to restraint. Such a view is without support in any respectable authority, and
cannot be tolerated. Any court having the right to admit attorneys to practice
and in this state that power is vested in this court-has the inherent right, in the
exercise of a sound judicial discretion to exclude them from practice. 23
This, because the admission of a lawyer to the practice of law is a representation
to all that he is worthy of their confidence and respect. So much so that —
... whenever it is made to appear to the court that an attorney is no longer worthy
of the trust and confidence of the public and of the courts, it becomes, not only
the right, but the duty, of the court which made him one of its officers, and gave
him the privilege of ministering within its bar, to withdraw the privilege.
Therefore it is almost universally held that both the admission and disbarment
of attorneys are judicial acts, and that one is admitted to the bar and exercises
his functions as an attorney, not as a matter of right, but as a privilege
conditioned on his own behavior and the exercise of a just and sound judicial
discretion. 24
Indeed, in this jurisdiction, that power to remove or suspend has risen above
being a mere inherent or incidental power. It has been elevated to an express
mandate by the Rules of Court. 25
Our authority and duty in the premises being unmistakable, we now proceed to
make an assessment of whether or not the utterances and actuations of Atty.
Almacen here in question are properly the object of disciplinary sanctions.
The proffered surrender of his lawyer's certificate is, of course, purely
potestative on Atty. Almacen's part. Unorthodox though it may seem, no statute,
no law stands in its way. Beyond making the mere offer, however, he went
farther. In haughty and coarse language, he actually availed of the said move as
a vehicle for his vicious tirade against this Court. The integrated entirety of his
petition bristles with vile insults all calculated to drive home his contempt for
and disrespect to the Court and its members. Picturing his client as "a sacrificial
victim at the altar of hypocrisy," he categorically denounces the justice
administered by this Court to be not only blind "but also deaf and dumb." With
unmitigated acerbity, he virtually makes this Court and its members with verbal
talons, imputing to the Court the perpetration of "silent injustices" and "short-
cut justice" while at the same time branding its members as "calloused to pleas
of justice." And, true to his announced threat to argue the cause of his client "in
the people's forum," he caused the publication in the papers of an account of his
actuations, in a calculated effort ;to startle the public, stir up public indignation
and disrespect toward the Court. Called upon to make an explanation, he
expressed no regret, offered no apology. Instead, with characteristic arrogance,
he rehashed and reiterated his vituperative attacks and, alluding to the
Scriptures, virtually tarred and feathered the Court and its members as
inveterate hypocrites incapable of administering justice and unworthy to impose
disciplinary sanctions upon him.
The virulence so blatantly evident in Atty. Almacen's petition, answer and oral
argumentation speaks for itself. The vicious language used and the scurrilous
innuendoes they carried far transcend the permissible bounds of legitimate
criticism. They could never serve any purpose but to gratify the spite of an irate
attorney, attract public attention to himself and, more important of all, bring
;this Court and its members into disrepute and destroy public confidence in
them to the detriment of the orderly administration of justice. Odium of this
character and texture presents no redeeming feature, and completely negates
any pretense of passionate commitment to the truth. It is not a whit less than a
classic example of gross misconduct, gross violation of the lawyer's oath and
gross transgression of the Canons of Legal Ethics. As such, it cannot be allowed
to go unrebuked. The way for the exertion of our disciplinary powers is thus
laid clear, and the need therefor is unavoidable.
We must once more stress our explicit disclaimer of immunity from criticism.
Like any other Government entity in a viable democracy, the Court is not, and
should not be, above criticism. But a critique of the Court must be intelligent
and discriminating, fitting to its high function as the court of last resort. And
more than this, valid and healthy criticism is by no means synonymous to
obloquy, and requires detachment and disinterestedness, real qualities
approached only through constant striving to attain them. Any criticism of the
Court must, possess the quality of judiciousness and must be informed -by
perspective and infused by philosophy. 26
It is not accurate to say, nor is it an obstacle to the exercise of our authority in
;the premises, that, as Atty. Almacen would have appear, the members of the
Court are the "complainants, prosecutors and judges" all rolled up into one in
this instance. This is an utter misapprehension, if not a total distortion, not only
of the nature of the proceeding at hand but also of our role therein.
Accent should be laid on the fact that disciplinary proceedings like the present
are sui generis. Neither purely civil nor purely criminal, this proceeding is not
— and does not involve — a trial of an action or a suit, but is rather an
investigation by the Court into the conduct of its officers. 27 Not being intended
to. inflict punishment, it is in no sense a criminal prosecution. Accordingly,
there is neither a plaintiff nor a prosecutor therein It may be initiated by the
Court motu proprio. 28 Public interest is its primary objective, and the real
question for determination is whether or not the attorney is still a fit person to
be allowed the privileges as such. Hence, in the exercise of its disciplinary
powers, the Court merely calls upon a member of the Bar to account for his
actuations as an officer of the Court with the end in view of preserving the purity
of the legal profession and the proper and honest administration of justice by
purging the profession of members who by their misconduct have proved
themselves no longer worthy to be entrusted with the duties and responsibilities
pertaining to the office of an attorney. 29 In such posture, there can thus be no
occasion to speak of a complainant or a prosecutor.
Undeniably, the members of the Court are, to a certain degree, aggrieved
parties. Any tirade against the Court as a body is necessarily and inextricably
as much so against the individual members thereof. But in the exercise of its
disciplinary powers, the Court acts as an entity separate and distinct from the
individual personalities of its members. Consistently with the intrinsic nature of
a collegiate court, the individual members act not as such individuals but. only
as a duly constituted court. Their distinct individualities are lost in the majesty
of their office. 30 So that, in a very real sense, if there be any complainant in
the case at bar, it can only be the Court itself, not the individual members thereof
— as well as the people themselves whose rights, fortunes and properties, nay,
even lives, would be placed at grave hazard should the administration of justice
be threatened by the retention in the Bar of men unfit to discharge the solemn
responsibilities of membership in the legal fraternity.
Finally, the power to exclude persons from the practice of law is but a necessary
incident of the power to admit persons to said practice. By constitutional
precept, this power is vested exclusively in this Court. This duty it cannot
abdicate just as much as it cannot unilaterally renounce jurisdiction legally
invested upon it. 31 So that even if it be conceded that the members collectively
are in a sense the aggrieved parties, that fact alone does not and cannot
disqualify them from the exercise of that power because public policy demands
that they., acting as a Court, exercise the power in all cases which call for
disciplinary action. The present is such a case. In the end, the imagined anomaly
of the merger in one entity of the personalities of complainant, prosecutor and
judge is absolutely inexistent.
Last to engage our attention is the nature and extent of the sanctions that may
be visited upon Atty. Almacen for his transgressions. As marked out by the
Rules of Court, these may range from mere suspension to total removal or
disbarment. 32 The discretion to assess under the circumstances the imposable
sanction is, of course, primarily addressed to the sound discretion of the Court
which, being neither arbitrary and despotic nor motivated by personal animosity
or prejudice, should ever be controlled by the imperative need that the purity
and independence of the Bar be scrupulously guarded and the dignity of and
respect due to the Court be zealously maintained.
That the misconduct committed by Atty. Almacen is of considerable gravity
cannot be overemphasized. However, heeding the stern injunction that
disbarment should never be decreed where a lesser sanction would accomplish
the end desired, and believing that it may not perhaps be futile to hope that in
the sober light of some future day, Atty. Almacen will realize that abrasive
language never fails to do disservice to an advocate and that in every
effervescence of candor there is ample room for the added glow of respect, it is
our view that suspension will suffice under the circumstances. His demonstrated
persistence in his misconduct by neither manifesting repentance nor offering
apology therefor leave us no way of determining how long that suspension
should last and, accordingly, we are impelled to decree that the same should be
indefinite. This, we are empowered to do not alone because jurisprudence grants
us discretion on the matter 33 but also because, even without the comforting
support of precedent, it is obvious that if we have authority to completely
exclude a person from the practice of law, there is no reason why indefinite
suspension, which is lesser in degree and effect, can be regarded as falling
outside of the compass of that authority. The merit of this choice is best shown
by the fact that it will then be left to Atty. Almacen to determine for himself
how long or how short that suspension shall last. For, at any time after the
suspension becomes effective he may prove to this Court that he is once again
fit to resume the practice of law.
ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul
Almacen be, as he is hereby, suspended from the practice of law until further
orders, the suspension to take effect immediately.
Let copies of this resolution. be furnished the Secretary of Justice, the Solicitor
General and the Court of Appeals for their information and guidance.
Concepcion,. C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Teehankee, Barredo and Villamor JJ., concur.
Fernando, J., took no part.
16th
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19450 May 27, 1965
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SIMPLICIO VILLANUEVA, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Magno T. Buese for defendant-appellant.
PAREDES, J.:
On September 4, 1959, the Chief of Police of Alaminos, Laguna, charged
Simplicio Villanueva with the Crime of Malicious Mischief before the Justice
of the Peace Court of said municipality. Said accused was represented by
counsel de officio but later on replaced by counsel de parte. The complainant in
the same case was represented by City Attorney Ariston Fule of San Pablo City,
having entered his appearance as private prosecutor, after securing the
permission of the Secretary of Justice. The condition of his appearance as such,
was that every time he would appear at the trial of the case, he would be
considered on official leave of absence, and that he would not receive any
payment for his services. The appearance of City Attorney Fule as private
prosecutor was questioned by the counsel for the accused, invoking the case of
Aquino, et al. vs. Blanco, et al.,
L-1532, Nov. 28, 1947, wherein it was ruled that "when an attorney had been
appointed to the position of Assistant Provincial Fiscal or City Fiscal and
therein qualified, by operation of law, he ceased to engage in private law
practice." Counsel then argued that the JP Court in entertaining the appearance
of City Attorney Fule in the case is a violation of the above ruling. On December
17, 1960 the JP issued an order sustaining the legality of the appearance of City
Attorney Fule.
Under date of January 4, 1961, counsel for the accused presented a "Motion to
Inhibit Fiscal Fule from Acting as Private Prosecutor in this Case," this time
invoking Section 32, Rule 27, now Sec. 35, Rule 138, Revised Rules of Court,
which bars certain attorneys from practicing. Counsel claims that City Attorney
Fule falls under this limitation. The JP Court ruled on the motion by upholding
the right of Fule to appear and further stating that he (Fule) was not actually
enagaged in private law practice. This Order was appealed to the CFI of Laguna,
presided by the Hon. Hilarion U. Jarencio, which rendered judgment on
December 20, 1961, the pertinent portions of which read:
The present case is one for malicious mischief. There being no reservation by
the offended party of the civil liability, the civil action was deemed impliedly
instituted with the criminal action. The offended party had, therefore, the right
to intervene in the case and be represented by a legal counsel because of her
interest in the civil liability of the accused.
Sec. 31, Rule 127 of the Rules of Court provides that in the court of a justice of
the peace a party may conduct his litigation in person, with the aid of an agent
or friend appointed by him for that purpose, or with the aid of an attorney.
Assistant City Attorney Fule appeared in the Justice of the Peace Court as an
agent or friend of the offended party. It does not appear that he was being paid
for his services or that his appearance was in a professional capacity. As
Assistant City Attorney of San Pablo he had no control or intervention
whatsoever in the prosecution of crimes committed in the municipality of
Alaminos, Laguna, because the prosecution of criminal cases coming from
Alaminos are handled by the Office of the Provincial Fiscal and not by the City
Attornev of San Pablo. There could be no possible conflict in the duties of
Assistant City Attorney Fule as Assistant City Attorney of San Pablo and as
private prosecutor in this criminal case. On the other hand, as already pointed
out, the offended party in this criminal case had a right to be represented by an
agent or a friend to protect her rights in the civil action which was impliedly
instituted together with the criminal action.
In view of the foregoing, this Court holds that Asst. City Attorney Ariston D.
Fule may appear before the Justice of the Peace Court of Alaminos, Laguna as
private prosecutor in this criminal case as an agent or a friend of the offended
party.
WHEREFORE, the appeal from the order of the Justice of the Peace Court of
Alaminos, Laguna, allowing the apprearance of Ariston D. Fule as private
prosecutor is dismissed, without costs.
The above decision is the subject of the instant proceeding.
The appeal should be dismissed, for patently being without merits.1äwphï1.ñët
Aside from the considerations advanced by the learned trial judge, heretofore
reproduced, and which we consider plausible, the fallacy of the theory of
defense counsel lies in his confused interpretation of Section 32 of Rule 127
(now Sec. 35, Rule 138, Revised Rules), which provides that "no judge or other
official or employee of the superior courts or of the office of the Solicitor
General, shall engage in private practice as a member of the bar or give
professional advice to clients." He claims that City Attorney Fule, in appearing
as private prosecutor in the case was engaging in private practice. We believe
that the isolated appearance of City Attorney Fule did not constitute private
practice within the meaning and contemplation of the Rules. Practice is more
than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual
exercise (State vs. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice
of law to fall within the prohibition of statute has been interpreted as
customarily or habitually holding one's self out to the public, as customarily and
demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,
647). The appearance as counsel on one occasion is not conclusive as
determinative of engagement in the private practice of law. The following
observation of the Solicitor General is noteworthy:
Essentially, the word private practice of law implies that one must have
presented himself to be in the active and continued practice of the legal
profession and that his professional services are available to the public for a
compensation, as a source of his livelihood or in consideration of his said
services.
For one thing, it has never been refuted that City Attorney Fule had been given
permission by his immediate superior, the Secretary of Justice, to represent the
complainant in the case at bar, who is a relative.
CONFORMABLY WITH ALL THE FOREGOING, the decision appealed
from should be, as it is hereby affirmed, in all respects, with costs against
appellant..
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal,
Bengzon, J.P., and Zaldivar, JJ., concur.
Bautista Angelo, J., took no part.
17th
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is limited to
the testimony of the accused himself, because from the very nature of these facts
and from the circumstances surrounding the incident upon which these
proceedings rest, no other evidence as to these facts was available either to the
prosecution or to the defense. We think, however, that, giving the accused the
benefit of the doubt as to the weight of the evidence touching those details of
the incident as to which there can be said to be any doubt, the following
statement of the material facts disclose by the record may be taken to be
substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No.
27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto,
deceased, was employed as a house boy or muchacho. "Officers' quarters No.
27" as a detached house situates some 40 meters from the nearest building, and
in August, 19087, was occupied solely as an officers' mess or club. No one slept
in the house except the two servants, who jointly occupied a small room toward
the rear of the building, the door of which opened upon a narrow porch running
along the side of the building, by which communication was had with the other
part of the house. This porch was covered by a heavy growth of vines for its
entire length and height. The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure of security, had attached a
small hook or catch on the inside of the door, and were in the habit of reinforcing
this somewhat insecure means of fastening the door by placing against it a chair.
In the room there was but one small window, which, like the door, opened on
the porch. Aside from the door and window, there were no other openings of
any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had
received for the night, was suddenly awakened by some trying to force open the
door of the room. He sat up in bed and called out twice, "Who is there?" He
heard no answer and was convinced by the noise at the door that it was being
pushed open by someone bent upon forcing his way into the room. Due to the
heavy growth of vines along the front of the porch, the room was very dark, and
the defendant, fearing that the intruder was a robber or a thief, leaped to his feet
and called out. "If you enter the room, I will kill you." At that moment he was
struck just above the knee by the edge of the chair which had been placed
against the door. In the darkness and confusion the defendant thought that the
blow had been inflicted by the person who had forced the door open, whom he
supposed to be a burglar, though in the light of after events, it is probable that
the chair was merely thrown back into the room by the sudden opening of the
door against which it rested. Seizing a common kitchen knife which he kept
under his pillow, the defendant struck out wildly at the intruder who, it
afterwards turned out, was his roommate, Pascual. Pascual ran out upon the
porch and fell down on the steps in a desperately wounded condition, followed
by the defendant, who immediately recognized him in the moonlight. Seeing
that Pascual was wounded, he called to his employers who slept in the next
house, No. 28, and ran back to his room to secure bandages to bind up Pascual's
wounds.
There had been several robberies in Fort McKinley not long prior to the date of
the incident just described, one of which took place in a house in which the
defendant was employed as cook; and as defendant alleges, it was because of
these repeated robberies he kept a knife under his pillow for his personal
protection.
The deceased and the accused, who roomed together and who appear to have
on friendly and amicable terms prior to the fatal incident, had an understanding
that when either returned at night, he should knock at the door and acquiant his
companion with his identity. Pascual had left the house early in the evening and
gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez,
servants employed at officers' quarters No. 28, the nearest house to the mess
hall. The three returned from their walk at about 10 o'clock, and Celestino and
Mariano stopped at their room at No. 28, Pascual going on to his room at No.
27. A few moments after the party separated, Celestino and Mariano heard cries
for assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back to No.
28 and called Liuetenants Jacobs and Healy, who immediately went to the aid
of the wounded man.
The defendant then and there admitted that he had stabbed his roommate, but
said that he did it under the impression that Pascual was "a ladron" because he
forced open the door of their sleeping room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals
suggests itself, unless it be that the boy in a spirit of mischief was playing a trick
on his Chinese roommate, and sought to frightened him by forcing his way into
the room, refusing to give his name or say who he was, in order to make Ah
Chong believe that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to the
military hospital, where he died from the effects of the wound on the following
day.
The defendant was charged with the crime of assassination, tried, and found
guilty by the trial court of simple homicide, with extenuating circumstances,
and sentenced to six years and one day presidio mayor, the minimum penalty
prescribed by law.
At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow without
any intent to do a wrongful act, in the exercise of his lawful right of self-defense.
Article 8 of the Penal Code provides that —
The following are not delinquent and are therefore exempt from criminal
liability:
xxx xxx xxx
4 He who acts in defense of his person or rights, provided there are the following
attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant would
be entitle to complete exception from criminal liability for the death of the
victim of his fatal blow, if the intruder who forced open the door of his room
had been in fact a dangerous thief or "ladron," as the defendant believed him to
be. No one, under such circumstances, would doubt the right of the defendant
to resist and repel such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and his threat
that he would kill the intruder if he persisted in his attempt, it will not be
questioned that in the darkness of the night, in a small room, with no means of
escape, with the thief advancing upon him despite his warnings defendant
would have been wholly justified in using any available weapon to defend
himself from such an assault, and in striking promptly, without waiting for the
thief to discover his whereabouts and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a "ladron."
That neither the defendant nor his property nor any of the property under his
charge was in real danger at the time when he struck the fatal blow. That there
was no such "unlawful aggression" on the part of a thief or "ladron" as defendant
believed he was repelling and resisting, and that there was no real "necessity"
for the use of the knife to defend his person or his property or the property under
his charge.
The question then squarely presents it self, whether in this jurisdiction one can
be held criminally responsible who, by reason of a mistake as to the facts, does
an act for which he would be exempt from criminal liability if the facts were as
he supposed them to be, but which would constitute the crime of homicide or
assassination if the actor had known the true state of the facts at the time when
he committed the act. To this question we think there can be but one answer,
and we hold that under such circumstances there is no criminal liability,
provided always that the alleged ignorance or mistake or fact was not due to
negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake of
fact is sufficient to negative a particular intent which under the law is a
necessary ingredient of the offense charged (e.g., in larcerny, animus furendi;
in murder, malice; in crimes intent) "cancels the presumption of intent," and
works an acquittal; except in those cases where the circumstances demand a
conviction under the penal provisions touching criminal negligence; and in
cases where, under the provisions of article 1 of the Penal Code one voluntarily
committing a crime or misdeamor incurs criminal liability for any wrongful act
committed by him, even though it be different from that which he intended to
commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim.
Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth
vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala.,
213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only
question worthy of consideration is whether malice or criminal intent is an
essential element or ingredient of the crimes of homicide and assassination as
defined and penalized in the Penal Code. It has been said that since the
definitions there given of these as well as most other crimes and offense therein
defined, do not specifically and expressly declare that the acts constituting the
crime or offense must be committed with malice or with criminal intent in order
that the actor may be held criminally liable, the commission of the acts set out
in the various definitions subjects the actor to the penalties described therein,
unless it appears that he is exempted from liability under one or other of the
express provisions of article 8 of the code, which treats of exemption. But while
it is true that contrary to the general rule of legislative enactment in the United
States, the definitions of crimes and offenses as set out in the Penal Code rarely
contain provisions expressly declaring that malice or criminal intent is an
essential ingredient of the crime, nevertheless, the general provisions of article
1 of the code clearly indicate that malice, or criminal intent in some form, is an
essential requisite of all crimes and offense therein defined, in the absence of
express provisions modifying the general rule, such as are those touching
liability resulting from acts negligently or imprudently committed, and acts
done by one voluntarily committing a crime or misdemeanor, where the act
committed is different from that which he intended to commit. And it is to be
observed that even these exceptions are more apparent than real, for "There is
little distinction, except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore carelessness is criminal, and
within limits supplies the place of the affirmative criminal intent" (Bishop's
New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference
between a disposition to do a great harm and a disposition to do harm that one
of them may very well be looked upon as the measure of the other. Since,
therefore, the guilt of a crime consists in the disposition to do harm, which the
criminal shows by committing it, and since this disposition is greater or less in
proportion to the harm which is done by the crime, the consequence is that the
guilt of the crime follows the same proportion; it is greater or less according as
the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11);
or, as it has been otherwise stated, the thing done, having proceeded from a
corrupt mid, is to be viewed the same whether the corruption was of one
particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
Acts and omissions punished by law are always presumed to be voluntarily
unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal
liability, even though the wrongful act committed be different from that which
he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word
"voluntary" as used in this article, say that a voluntary act is a free, intelligent,
and intentional act, and roundly asserts that without intention (intention to do
wrong or criminal intention) there can be no crime; and that the word
"voluntary" implies and includes the words "con malicia," which were expressly
set out in the definition of the word "crime" in the code of 1822, but omitted
from the code of 1870, because, as Pacheco insists, their use in the former code
was redundant, being implied and included in the word "voluntary." (Pacheco,
Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can
only be said to exempt from criminal responsibility when the act which was
actually intended to be done was in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits and recognizes in his discussion
of the provisions of this article of the code that in general without intention there
can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the
exceptions insisted upon by Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where
there is no intention there is no crime . . . in order to affirm, without fear of
mistake, that under our code there can be no crime if there is no act, an act which
must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the
Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as,
for example in its sentence of May 31, 1882, in which it made use of the
following language:
It is necessary that this act, in order to constitute a crime, involve all the malice
which is supposed from the operation of the will and an intent to cause the injury
which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering
that, whatever may be the civil effects of the inscription of his three sons, made
by the appellant in the civil registry and in the parochial church, there can be no
crime because of the lack of the necessary element or criminal intention, which
characterizes every action or ommission punished by law; nor is he guilty of
criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of the
following language:
. . . Considering that the moral element of the crime, that is, intent or malice or
their absence in the commission of an act defined and punished by law as
criminal, is not a necessary question of fact submitted to the exclusive judgment
and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an
essential element of the various crimes and misdemeanors therein defined
becomes clear also from an examination of the provisions of article 568, which
are as follows:
He who shall execute through reckless negligence an act that, if done with
malice, would constitute a grave crime, shall be punished with the penalty of
arresto mayor in its maximum degree, to prision correccional in its minimum
degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple
imprudence or negligence shall incur the penalty of arresto mayor in its medium
and maximum degrees.
In the application of these penalties the courts shall proceed according to their
discretion, without being subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed
for the crime is equal to or less than those contained in the first paragraph
thereof, in which case the courts shall apply the next one thereto in the degree
which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the
words "criminal intent," and the direct inference from its provisions is that the
commission of the acts contemplated therein, in the absence of malice (criminal
intent), negligence, and imprudence, does not impose any criminal liability on
the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to
approximate in meaning the word "willful" as used in English and American
statute to designate a form of criminal intent. It has been said that while the
word "willful" sometimes means little more than intentionally or designedly,
yet it is more frequently understood to extent a little further and approximate
the idea of the milder kind of legal malice; that is, it signifies an evil intent
without justifiable excuse. In one case it was said to mean, as employed in a
statute in contemplation, "wantonly" or "causelessly;" in another, "without
reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose;
in other words, corruptly." In English and the American statutes defining crimes
"malice," "malicious," "maliciously," and "malice aforethought" are words
indicating intent, more purely technical than "willful" or willfully," but "the
difference between them is not great;" the word "malice" not often being
understood to require general malevolence toward a particular individual, and
signifying rather the intent from our legal justification. (Bishop's New Criminal
Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in
the definition of a crime that it be committed "voluntarily," willfully,"
"maliciously" "with malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions
hereinafter mentioned, to constitute a crime evil intent must combine with an
act. Mr. Bishop, who supports his position with numerous citations from the
decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the
rule as to the intent. In controversies between private parties the quo animo with
which a thing was done is sometimes important, not always; but crime proceeds
only from a criminal mind. So that —
There can be no crime, large or small, without an evil mind. In other words,
punishment is the sentence of wickedness, without which it can not be. And
neither in philosophical speculation nor in religious or mortal sentiment would
any people in any age allow that a man should be deemed guilty unless his mind
was so. It is therefore a principle of our legal system, as probably it is of every
other, that the essence of an offense is the wrongful intent, without which it can
not exists. We find this doctrine confirmed by —
Legal maxims. — The ancient wisdom of the law, equally with the modern, is
distinct on this subject. It consequently has supplied to us such maxims as Actus
non facit reum nisi mens sit rea, "the act itself does not make man guilty unless
his intention were so;" Actus me incito factus non est meus actus, "an act done
by me against my will is not my act;" and others of the like sort. In this, as just
said, criminal jurisprudence differs from civil. So also —
Moral science and moral sentiment teach the same thing. "By reference to the
intention, we inculpate or exculpate others or ourselves without any respect to
the happiness or misery actually produced. Let the result of an action be what it
may, we hold a man guilty simply on the ground of intention; or, on the dame
ground, we hold him innocent." The calm judgment of mankind keeps this
doctrine among its jewels. In times of excitement, when vengeance takes the
place of justice, every guard around the innocent is cast down. But with the
return of reason comes the public voice that where the mind is pure, he who
differs in act from his neighbors does not offend. And —
In the spontaneous judgment which springs from the nature given by God to
man, no one deems another to deserve punishment for what he did from an
upright mind, destitute of every form of evil. And whenever a person is made
to suffer a punishment which the community deems not his due, so far from its
placing an evil mark upon him, it elevates him to the seat of the martyr. Even
infancy itself spontaneously pleads the want of bad intent in justification of
what has the appearance of wrong, with the utmost confidence that the plea, if
its truth is credited, will be accepted as good. Now these facts are only the voice
of nature uttering one of her immutable truths. It is, then, the doctrine of the
law, superior to all other doctrines, because first in nature from which the law
itself proceeds, that no man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent departure
from this doctrine of abstract justice result from the adoption of the arbitrary
rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"),
without which justice could not be administered in our tribunals; and compelled
also by the same doctrine of necessity, the courts have recognized the power of
the legislature to forbid, in a limited class of cases, the doing of certain acts, and
to make their commission criminal without regard to the intent of the doer.
Without discussing these exceptional cases at length, it is sufficient here to say
that the courts have always held that unless the intention of the lawmaker to
make the commission of certain acts criminal without regard to the intent of the
doer is clear and beyond question the statute will not be so construed (cases
cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of
the law excuses no man has been said not to be a real departure from the law's
fundamental principle that crime exists only where the mind is at fault, because
"the evil purpose need not be to break the law, and if suffices if it is simply to
do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec.
300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing necessity
therefore, requiring mistake in fact to be dealt with otherwise that in strict
accord with the principles of abstract justice. On the contrary, the maxim here
is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases
of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any such
mistake of fact as shows the act committed to have proceeded from no sort of
evil in the mind necessarily relieves the actor from criminal liability provided
always there is no fault or negligence on his part; and as laid down by Baron
Parke, "The guilt of the accused must depend on the circumstances as they
appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal..,
65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46
Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209;
Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he
honestly, in good faith, and without fault or negligence fell into the mistake is
to be determined by the circumstances as they appeared to him at the time when
the mistake was made, and the effect which the surrounding circumstances
might reasonably be expected to have on his mind, in forming the intent,
criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to believe
the existence of facts which will justify a killing — or, in terms more nicely in
accord with the principles on which the rule is founded, if without fault or
carelessness he does believe them — he is legally guiltless of the homicide;
though he mistook the facts, and so the life of an innocent person is
unfortunately extinguished. In other words, and with reference to the right of
self-defense and the not quite harmonious authorities, it is the doctrine of reason
and sufficiently sustained in adjudication, that notwithstanding some decisions
apparently adverse, whenever a man undertakes self-defense, he is justified in
acting on the facts as they appear to him. If, without fault or carelessness, he is
misled concerning them, and defends himself correctly according to what he
thus supposes the facts to be the law will not punish him though they are in truth
otherwise, and he was really no occassion for the extreme measures. (Bishop's
New Criminal Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised as a
footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed by
his friend under the mistaken belief that the attack is a real one, that the pistol
leveled at his head is loaded, and that his life and property are in imminent
danger at the hands of the aggressor. No one will doubt that if the facts were
such as the slayer believed them to be he would be innocent of the commission
of any crime and wholly exempt from criminal liability, although if he knew the
real state of the facts when he took the life of his friend he would undoubtedly
be guilty of the crime of homicide or assassination. Under such circumstances,
proof of his innocent mistake of the facts overcomes the presumption of malice
or criminal intent, and (since malice or criminal intent is a necessary ingredient
of the "act punished by law" in cases of homicide or assassination) overcomes
at the same time the presumption established in article 1 of the code, that the
"act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain
had a felonious design against him, and under that supposition killed him,
although it should afterwards appear that there was no such design, it will not
be murder, but it will be either manslaughter or excusable homicide, according
to the degree of caution used and the probable grounds of such belief. (Charge
to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of
the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him,
with an outstretched arms and a pistol in his hand, and using violent menaces
against his life as he advances. Having approached near enough in the same
attitude, A, who has a club in his hand, strikes B over the head before or at the
instant the pistol is discharged; and of the wound B dies. It turns out the pistol
was loaded with powder only, and that the real design of B was only to terrify
A. Will any reasonable man say that A is more criminal that he would have been
if there had been a bullet in the pistol? Those who hold such doctrine must
require that a man so attacked must, before he strikes the assailant, stop and
ascertain how the pistol is loaded — a doctrine which would entirely take away
the essential right of self-defense. And when it is considered that the jury who
try the cause, and not the party killing, are to judge of the reasonable grounds
of his apprehension, no danger can be supposed to flow from this principle.
(Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited by
Viada, a few of which are here set out in full because the facts are somewhat
analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his hearth, at
night, in company only of his wife, without other light than reflected from the
fire, and that the man with his back to the door was attending to the fire, there
suddenly entered a person whom he did not see or know, who struck him one
or two blows, producing a contusion on the shoulder, because of which he
turned, seized the person and took from his the stick with which he had
undoubtedly been struck, and gave the unknown person a blow, knocking him
to the floor, and afterwards striking him another blow on the head, leaving the
unknown lying on the floor, and left the house. It turned out the unknown person
was his father-in-law, to whom he rendered assistance as soon as he learned his
identity, and who died in about six days in consequence of cerebral congestion
resulting from the blow. The accused, who confessed the facts, had always
sustained pleasant relations with his father-in-law, whom he visited during his
sickness, demonstrating great grief over the occurrence. Shall he be considered
free from criminal responsibility, as having acted in self-defense, with all the
circumstances related in paragraph 4, article 8, of the Penal Code? The criminal
branch of the Audiencia of Valladolid found that he was an illegal aggressor,
without sufficient provocation, and that there did not exists rational necessity
for the employment of the force used, and in accordance with articles 419 and
87 of the Penal Code condemned him to twenty months of imprisonment, with
accessory penalty and costs. Upon appeal by the accused, he was acquitted by
the supreme court, under the following sentence: "Considering, from the facts
found by the sentence to have been proven, that the accused was surprised from
behind, at night, in his house beside his wife who was nursing her child, was
attacked, struck, and beaten, without being able to distinguish with which they
might have executed their criminal intent, because of the there was no other
than fire light in the room, and considering that in such a situation and when the
acts executed demonstrated that they might endanger his existence, and possibly
that of his wife and child, more especially because his assailant was unknown,
he should have defended himself, and in doing so with the same stick with
which he was attacked, he did not exceed the limits of self-defense, nor did he
use means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his assailant,
and was capable of producing death, and in the darkness of the house and the
consteration which naturally resulted from such strong aggression, it was not
given him to known or distinguish whether there was one or more assailants,
nor the arms which they might bear, not that which they might accomplish, and
considering that the lower court did not find from the accepted facts that there
existed rational necessity for the means employed, and that it did not apply
paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme
court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was situated
in a retired part of the city, upon arriving at a point where there was no light,
heard the voice of a man, at a distance of some 8 paces, saying: "Face down,
hand over you money!" because of which, and almost at the same money, he
fired two shots from his pistol, distinguishing immediately the voice of one of
his friends (who had before simulated a different voice) saying, "Oh! they have
killed me," and hastening to his assistance, finding the body lying upon the
ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined,"
realizing that he had been the victim of a joke, and not receiving a reply, and
observing that his friend was a corpse, he retired from the place. Shall he be
declared exempt in toto from responsibility as the author of this homicide, as
having acted in just self-defense under the circumstances defined in paragraph
4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did
not so find, but only found in favor of the accused two of the requisites of said
article, but not that of the reasonableness of the means employed to repel the
attack, and, therefore, condemned the accused to eight years and one day of
prison mayor, etc. The supreme court acquitted the accused on his appeal from
this sentence, holding that the accused was acting under a justifiable and
excusable mistake of fact as to the identity of the person calling to him, and that
under the circumstances, the darkness and remoteness, etc., the means
employed were rational and the shooting justifiable. (Sentence supreme court,
March 17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at
night, by a large stone thrown against his window — at this, he puts his head
out of the window and inquires what is wanted, and is answered "the delivery
of all of his money, otherwise his house would be burned" — because of which,
and observing in an alley adjacent to the mill four individuals, one of whom
addressed him with blasphemy, he fired his pistol at one the men, who, on the
next morning was found dead on the same spot. Shall this man be declared
exempt from criminal responsibility as having acted in just self-defense with all
of the requisites of law? The criminal branch of the requisites of law? The
criminal branch of the Audiencia of Zaragoza finds that there existed in favor
of the accused a majority of the requisites to exempt him from criminal
responsibility, but not that of reasonable necessity for the means, employed, and
condemned the accused to twelve months of prision correctional for the
homicide committed. Upon appeal, the supreme court acquitted the condemned,
finding that the accused, in firing at the malefactors, who attack his mill at night
in a remote spot by threatening robbery and incendiarism, was acting in just
self-defense of his person, property, and family. (Sentence of May 23, 1877). (I
Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces us
that the defendant Chinaman struck the fatal blow alleged in the information in
the firm belief that the intruder who forced open the door of his sleeping room
was a thief, from whose assault he was in imminent peril, both of his life and of
his property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the
time, he acted in good faith, without malice, or criminal intent, in the belief that
he was doing no more than exercising his legitimate right of self-defense; that
had the facts been as he believed them to be he would have been wholly exempt
from criminal liability on account of his act; and that he can not be said to have
been guilty of negligence or recklessness or even carelessness in falling into his
mistake as to the facts, or in the means adopted by him to defend himself from
the imminent danger which he believe threatened his person and his property
and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court should
be reversed, and the defendant acquitted of the crime with which he is charged
and his bail bond exonerated, with the costs of both instance de oficio. So
ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the court, believes
that, according to the merits of the case, the crime of homicide by reckless
negligence, defined and punishes in article 568 of the Penal Code, was
committed, inasmuch as the victim was wilfully (voluntariomente) killed, and
while the act was done without malice or criminal intent it was, however,
executed with real negligence, for the acts committed by the deceased could not
warrant the aggression by the defendant under the erroneous belief on the part
of the accused that the person who assaulted him was a malefactor; the
defendant therefore incurred responsibility in attacking with a knife the person
who was accustomed to enter said room, without any justifiable motive.
By reason of the nature of the crime committed, in the opinion of the
undersigned the accused should be sentenced to the penalty of one year and one
month of prision correctional, to suffer the accessory penalties provided in
article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with
the costs of both instances, thereby reversing the judgment appealed from.
18th
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
Disbarment1 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 11th 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.
Puno, Chief Justice, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-
Nazario, Garcia, Velasco, Jr., Nachura, JJ., concur.
19th
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 1928 August 3, 1978
In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL
A. EDILION (IBP Administrative Case No. MDD-1)
RESOLUTION
CASTRO, C.J.:
The respondent Marcial A. Edillon is a duly licensed practicing attorney in the
Philippines.
On November 29, 1975, the Integrated Bar of the Philippines (IBP for short)
Board of Governors unanimously adopted Resolution No. 75-65 in
Administrative Case No. MDD-1 (In the Matter of the Membership Dues
Delinquency of Atty. Marcial A. Edillon) recommending to the Court the
removal of the name of the respondent from its Roll of Attorneys for "stubborn
refusal to pay his membership dues" to the IBP since the latter's constitution
notwithstanding due notice.
On January 21, 1976, the IBP, through its then President Liliano B. Neri,
submitted the said resolution to the Court for consideration and approval,
pursuant to paragraph 2, Section 24, Article III of the By-Laws of the IBP,
which reads:
.... Should the delinquency further continue until the following June 29, the
Board shall promptly inquire into the cause or causes of the continued
delinquency and take whatever action it shall deem appropriate, including a
recommendation to the Supreme Court for the removal of the delinquent
member's name from the Roll of Attorneys. Notice of the action taken shall be
sent by registered mail to the member and to the Secretary of the Chapter
concerned.
On January 27, 1976, the Court required the respondent to comment on the
resolution and letter adverted to above; he submitted his comment on February
23, 1976, reiterating his refusal to pay the membership fees due from him.
On March 2, 1976, the Court required the IBP President and the IBP Board of
Governors to reply to Edillon's comment: on March 24, 1976, they submitted a
joint reply.
Thereafter, the case was set for hearing on June 3, 1976. After the hearing, the
parties were required to submit memoranda in amplification of their oral
arguments. The matter was thenceforth submitted for resolution.
At the threshold, a painstaking scrutiny of the respondent's pleadings would
show that the propriety and necessity of the integration of the Bar of the
Philippines are in essence conceded. The respondent, however, objects to
particular features of Rule of Court 139-A (hereinafter referred to as the Court
Rule) 1 — in accordance with which the Bar of the Philippines was integrated
— and to the provisions of par. 2, Section 24, Article III, of the IBP By-Laws
(hereinabove cited).
The authority of the IBP Board of Governors to recommend to the Supreme
Court the removal of a delinquent member's name from the Roll of Attorneys
is found in par. 2 Section 24, Article Ill of the IBP By-Laws (supra), whereas
the authority of the Court to issue the order applied for is found in Section 10
of the Court Rule, which reads:
SEC. 10. Effect of non-payment of dues. — Subject to the provisions of Section
12 of this Rule, default in the payment of annual dues for six months shall
warrant suspension of membership in the Integrated Bar, and default in such
payment for one year shall be a ground for the removal of the name of the
delinquent member from the Roll of Attorneys.
The all-encompassing, all-inclusive scope of membership in the IBP is stated in
these words of the Court Rule:
SECTION 1. Organization. — There is hereby organized an official national
body to be known as the 'Integrated Bar of the Philippines,' composed of all
persons whose names now appear or may hereafter be included in the Roll of
Attorneys of the Supreme Court.
The obligation to pay membership dues is couched in the following words of
the Court Rule:
SEC. 9. Membership dues. Every member of the Integrated Bar shall pay such
annual dues as the Board of Governors shall determine with the approval of the
Supreme Court. ...
The core of the respondent's arguments is that the above provisions constitute
an invasion of his constitutional rights in the sense that he is being compelled,
as a pre-condition to maintaining his status as a lawyer in good standing, to be
a member of the IBP and to pay the corresponding dues, and that as a
consequence of this compelled financial support of the said organization to
which he is admittedly personally antagonistic, he is being deprived of the rights
to liberty and property guaranteed to him by the Constitution. Hence, the
respondent concludes, the above provisions of the Court Rule and of the IBP
By-Laws are void and of no legal force and effect.
The respondent similarly questions the jurisdiction of the Court to strike his
name from the Roll of Attorneys, contending that the said matter is not among
the justiciable cases triable by the Court but is rather of an "administrative
nature pertaining to an administrative body."
The case at bar is not the first one that has reached the Court relating to
constitutional issues that inevitably and inextricably come up to the surface
whenever attempts are made to regulate the practice of law, define the
conditions of such practice, or revoke the license granted for the exercise of the
legal profession.
The matters here complained of are the very same issues raised in a previous
case before the Court, entitled "Administrative Case No. 526, In the Matter of
the Petition for the Integration of the Bar of the Philippines, Roman Ozaeta, et
al., Petitioners." The Court exhaustively considered all these matters in that case
in its Resolution ordaining the integration of the Bar of the Philippines,
promulgated on January 9, 1973. The Court there made the unanimous
pronouncement that it was
... fully convinced, after a thoroughgoing conscientious study of all the
arguments adduced in Adm. Case No. 526 and the authoritative materials and
the mass of factual data contained in the exhaustive Report of the Commission
on Bar Integration, that the integration of the Philippine Bar is 'perfectly
constitutional and legally unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court.
An "Integrated Bar" is a State-organized Bar, to which every lawyer must
belong, as distinguished from bar associations organized by individual lawyers
themselves, membership in which is voluntary. Integration of the Bar is
essentially a process by which every member of the Bar is afforded an
opportunity to do his share in carrying out the objectives of the Bar as well as
obliged to bear his portion of its responsibilities. Organized by or under the
direction of the State, an integrated Bar is an official national body of which all
lawyers are required to be members. They are, therefore, subject to all the rules
prescribed for the governance of the Bar, including the requirement of payment
of a reasonable annual fee for the effective discharge of the purposes of the Bar,
and adherence to a code of professional ethics or professional responsibility
breach of which constitutes sufficient reason for investigation by the Bar and,
upon proper cause appearing, a recommendation for discipline or disbarment of
the offending member.
The integration of the Philippine Bar was obviously dictated by overriding
considerations of public interest and public welfare to such an extent as more
than constitutionally and legally justifies the restrictions that integration
imposes upon the personal interests and personal convenience of individual
lawyers.
Apropos to the above, it must be stressed that all legislation directing the
integration of the Bar have been uniformly and universally sustained as a valid
exercise of the police power over an important profession. The practice of law
is not a vested right but a privilege, a privilege moreover clothed with public
interest because a lawyer owes substantial duties not only to his client, but also
to his brethren in the profession, to the courts, and to the nation, and takes part
in one of the most important functions of the State — the administration of
justice — as an officer of the court. 4 The practice of law being clothed with
public interest, the holder of this privilege must submit to a degree of control
for the common good, to the extent of the interest he has created. As the U. S.
Supreme Court through Mr. Justice Roberts explained, the expression "affected
with a public interest" is the equivalent of "subject to the exercise of the police
power" (Nebbia vs. New York, 291 U.S. 502).
When, therefore, Congress enacted Republic Act No. 6397 5 authorizing the
Supreme Court to "adopt rules of court to effect the integration of the Philippine
Bar under such conditions as it shall see fit," it did so in the exercise of the
paramount police power of the State. The Act's avowal is to "raise the standards
of the legal profession, improve the administration of justice, and enable the
Bar to discharge its public responsibility more effectively." Hence, the
Congress in enacting such Act, the Court in ordaining the integration of the Bar
through its Resolution promulgated on January 9, 1973, and the President of the
Philippines in decreeing the constitution of the IBP into a body corporate
through Presidential Decree No. 181 dated May 4, 1973, were prompted by
fundamental considerations of public welfare and motivated by a desire to meet
the demands of pressing public necessity.
The State, in order to promote the general welfare, may interfere with and
regulate personal liberty, property and occupations. Persons and property may
be subjected to restraints and burdens in order to secure the general prosperity
and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for, as the Latin
maxim goes, "Salus populi est supreme lex." The public welfare is the supreme
law. To this fundamental principle of government the rights of individuals are
subordinated. Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society win fall into
anarchy (Calalang vs. Williams, 70 Phil. 726). It is an undoubted power of the
State to restrain some individuals from all freedom, and all individuals from
some freedom.
But the most compelling argument sustaining the constitutionality and validity
of Bar integration in the Philippines is the explicit unequivocal grant of precise
power to the Supreme Court by Section 5 (5) of Article X of the 1973
Constitution of the Philippines, which reads:
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and pro. procedure in all
courts, and the admission to the practice of law and the integration of the Bar
...,
and Section 1 of Republic Act No. 6397, which reads:
SECTION 1. Within two years from the approval of this Act, the Supreme Court
may adopt rules of Court to effect the integration of the Philippine Bar under
such conditions as it shall see fit in order to raise the standards of the legal
profession, improve the administration of justice, and enable the Bar to
discharge its public responsibility more effectively.
Quite apart from the above, let it be stated that even without the enabling Act
(Republic Act No. 6397), and looking solely to the language of the provision of
the Constitution granting the Supreme Court the power "to promulgate rules
concerning pleading, practice and procedure in all courts, and the admission to
the practice of law," it at once becomes indubitable that this constitutional
declaration vests the Supreme Court with plenary power in all cases regarding
the admission to and supervision of the practice of law.
Thus, when the respondent Edillon entered upon the legal profession, his
practice of law and his exercise of the said profession, which affect the society
at large, were (and are) subject to the power of the body politic to require him
to conform to such regulations as might be established by the proper authorities
for the common good, even to the extent of interfering with some of his liberties.
If he did not wish to submit himself to such reasonable interference and
regulation, he should not have clothed the public with an interest in his
concerns.
On this score alone, the case for the respondent must already fall.
The issues being of constitutional dimension, however, we now concisely deal
with them seriatim.
1. The first objection posed by the respondent is that the Court is without power
to compel him to become a member of the Integrated Bar of the Philippines,
hence, Section 1 of the Court Rule is unconstitutional for it impinges on his
constitutional right of freedom to associate (and not to associate). Our answer
is: To compel a lawyer to be a member of the Integrated Bar is not violative of
his constitutional freedom to associate. 6
Integration does not make a lawyer a member of any group of which he is not
already a member. He became a member of the Bar when he passed the Bar
examinations. 7 All that integration actually does is to provide an official
national organization for the well-defined but unorganized and incohesive
group of which every lawyer is a ready a member. 8
Bar integration does not compel the lawyer to associate with anyone. He is free
to attend or not attend the meetings of his Integrated Bar Chapter or vote or
refuse to vote in its elections as he chooses. The only compulsion to which he
is subjected is the payment of annual dues. The Supreme Court, in order to
further the State's legitimate interest in elevating the quality of professional
legal services, may require that the cost of improving the profession in this
fashion be shared by the subjects and beneficiaries of the regulatory program
— the lawyers.
Assuming that the questioned provision does in a sense compel a lawyer to be
a member of the Integrated Bar, such compulsion is justified as an exercise of
the police power of the State. 10
2. The second issue posed by the respondent is that the provision of the Court
Rule requiring payment of a membership fee is void. We see nothing in the
Constitution that prohibits the Court, under its constitutional power and duty to
promulgate rules concerning the admission to the practice of law and the
integration of the Philippine Bar (Article X, Section 5 of the 1973 Constitution)
— which power the respondent acknowledges — from requiring members of a
privileged class, such as lawyers are, to pay a reasonable fee toward defraying
the expenses of regulation of the profession to which they belong. It is quite
apparent that the fee is indeed imposed as a regulatory measure, designed to
raise funds for carrying out the objectives and purposes of integration. 11
3. The respondent further argues that the enforcement of the penalty provisions
would amount to a deprivation of property without due process and hence
infringes on one of his constitutional rights. Whether the practice of law is a
property right, in the sense of its being one that entitles the holder of a license
to practice a profession, we do not here pause to consider at length, as it clear
that under the police power of the State, and under the necessary powers granted
to the Court to perpetuate its existence, the respondent's right to practise law
before the courts of this country should be and is a matter subject to regulation
and inquiry. And, if the power to impose the fee as a regulatory measure is
recognize, then a penalty designed to enforce its payment, which penalty may
be avoided altogether by payment, is not void as unreasonable or arbitrary. 12
But we must here emphasize that the practice of law is not a property right but
a mere privilege, 13 and as such must bow to the inherent regulatory power of
the Court to exact compliance with the lawyer's public responsibilities.
4. Relative to the issue of the power and/or jurisdiction of the Supreme Court
to strike the name of a lawyer from its Roll of Attorneys, it is sufficient to state
that the matters of admission, suspension, disbarment and reinstatement of
lawyers and their regulation and supervision have been and are indisputably
recognized as inherent judicial functions and responsibilities, and the
authorities holding such are legion. 14
In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the
Board of Bar Commissioners in a disbarment proceeding was confirmed and
disbarment ordered, the court, sustaining the Bar Integration Act of Kentucky,
said: "The power to regulate the conduct and qualifications of its officers does
not depend upon constitutional or statutory grounds. It is a power which is
inherent in this court as a court — appropriate, indeed necessary, to the proper
administration of justice ... the argument that this is an arbitrary power which
the court is arrogating to itself or accepting from the legislative likewise
misconceives the nature of the duty. It has limitations no less real because they
are inherent. It is an unpleasant task to sit in judgment upon a brother member
of the Bar, particularly where, as here, the facts are disputed. It is a grave
responsibility, to be assumed only with a determination to uphold the Ideals and
traditions of an honorable profession and to protect the public from
overreaching and fraud. The very burden of the duty is itself a guaranty that the
power will not be misused or prostituted. ..."
The Court's jurisdiction was greatly reinforced by our 1973 Constitution when
it explicitly granted to the Court the power to "Promulgate rules concerning
pleading, practice ... and the admission to the practice of law and the integration
of the Bar ... (Article X, Sec. 5(5) the power to pass upon the fitness of the
respondent to remain a member of the legal profession is indeed undoubtedly
vested in the Court.
We thus reach the conclusion that the provisions of Rule of Court 139-A and of
the By-Laws of the Integrated Bar of the Philippines complained of are neither
unconstitutional nor illegal.
WHEREFORE, premises considered, it is the unanimous sense of the Court that
the respondent Marcial A. Edillon should be as he is hereby disbarred, and his
name is hereby ordered stricken from the Roll of Attorneys of the Court.
Fernando, Teehankee, Barredo, Makasiar, Antonio, Muñoz Palma, Aquino,
Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.
20th
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:
We are faced here with a controversy of far-reaching proportions. While
ostensibly only legal issues are involved, the Court's decision in this case would
indubitably have a profound effect on the political aspect of our national
existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age, holders of a college
degree, and must not have been candidates for any elective position in the
immediately preceding -elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in
the practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the
1973 Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens of the
Philippines and, at the time of their appointment, at least thirty-five years of age
and holders of a college degree. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in
the practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes
practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is
not limited to appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and other papers incident
to actions and special proceedings, conveyancing, the preparation of legal
instruments of all kinds, and the giving of all legal advice to clients. It embraces
all advice to clients and all actions taken for them in matters connected with the
law. An attorney engages in the practice of law by maintaining an office where
he is held out to be-an attorney, using a letterhead describing himself as an
attorney, counseling clients in legal matters, negotiating with opposing counsel
about pending litigation, and fixing and collecting fees for services rendered by
his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person
is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their rights under the law, or appears in a
representative capacity as an advocate in proceedings pending or prospective,
before any court, commissioner, referee, board, body, committee, or
commission constituted by law or authorized to settle controversies and there,
in such representative capacity performs any act or acts for the purpose of
obtaining or defending the rights of their clients under the law. Otherwise stated,
one who, in a representative capacity, engages in the business of advising clients
as to their rights under the law, or while so engaged performs any act or acts
either in court or outside of court for that purpose, is engaged in the practice of
law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340
Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil.
173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers incident to actions
and special proceedings, the management of such actions and proceedings on
behalf of clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in matters connected
with the law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a
mortgage, enforcement of a creditor's claim in bankruptcy and insolvency
proceedings, and conducting proceedings in attachment, and in matters of estate
and guardianship have been held to constitute law practice, as do the preparation
and drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of facts and
conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to proceedings
in court. It embraces conveyancing, the giving of legal advice on a large variety
of subjects, and the preparation and execution of legal instruments covering an
extensive field of business and trust relations and other affairs. Although these
transactions may have no direct connection with court proceedings, they are
always subject to become involved in litigation. They require in many aspects
a high degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These customary
functions of an attorney or counselor at law bear an intimate relation to the
administration of justice by the courts. No valid distinction, so far as concerns
the question set forth in the order, can be drawn between that part of the work
of the lawyer which involves appearance in court and that part which involves
advice and drafting of instruments in his office. It is of importance to the welfare
of the public that these manifold customary functions be performed by persons
possessed of adequate learning and skill, of sound moral character, and acting
at all times under the heavy trust obligations to clients which rests upon all
attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-
666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode
Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis
ours)
The University of the Philippines Law Center in conducting orientation briefing
for new lawyers (1974-1975) listed the dimensions of the practice of law in
even broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind usual
for attorneys engaging in the active practice of their profession, and he follows
some one or more lines of employment such as this he is a practicing attorney
at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts which are characteristics
of the profession. Generally, to practice law is to give notice or render any kind
of service, which device or service requires the use in any degree of legal
knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has
adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which I
forgot to do during our review of the provisions on the Commission on Audit.
May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by
Section I is that "They must be Members of the Philippine Bar" — I am quoting
from the provision — "who have been engaged in the practice of law for at least
ten years".
To avoid any misunderstanding which would result in excluding members of
the Bar who are now employed in the COA or Commission on Audit, we would
like to make the clarification that this provision on qualifications regarding
members of the Bar does not necessarily refer or involve actual practice of law
outside the COA We have to interpret this to mean that as long as the lawyers
who are employed in the COA are using their legal knowledge or legal talent in
their respective work within COA, then they are qualified to be considered for
appointment as members or commissioners, even chairman, of the Commission
on Audit.
This has been discussed by the Committee on Constitutional Commissions and
Agencies and we deem it important to take it up on the floor so that this
interpretation may be made available whenever this provision on the
qualifications as regards members of the Philippine Bar engaging in the practice
of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is
equivalent to the requirement of a law practice that is set forth in the Article on
the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
therefore, lawyers who are employed in COA now would have the necessary
qualifications in accordance with the Provision on qualifications under our
provisions on the Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent
to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others,
that the Chairman and two Commissioners of the Commission on Audit (COA)
should either be certified public accountants with not less than ten years of
auditing practice, or members of the Philippine Bar who have been engaged in
the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not
engage in private practice, it is still a fact that the majority of lawyers are private
practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career
Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as
commonly understood, means "an individual or organization engaged in the
business of delivering legal services." (Ibid.). Lawyers who practice alone are
often called "sole practitioners." Groups of lawyers are called "firms." The firm
is usually a partnership and members of the firm are the partners. Some firms
may be organized as professional corporations and the members called
shareholders. In either case, the members of the firm are the experienced
attorneys. In most firms, there are younger or more inexperienced salaried
attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice
is essentially tautologous, unhelpful defining the practice of law as that which
lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.:
Minnesota, 1986], p. 593). The practice of law is defined as the performance of
any acts . . . in or out of court, commonly understood to be the practice of law.
(State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d
863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d
623, 626 [1941]). Because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would obviously be too
global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most
publicly familiar role for lawyers as well as an uncommon role for the average
lawyer. Most lawyers spend little time in courtrooms, and a large percentage
spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless,
many lawyers do continue to litigate and the litigating lawyer's role colors much
of both the public image and the self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects
history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip,
a corporate lawyer, once articulated on the importance of a lawyer as a business
counselor in this wise: "Even today, there are still uninformed laymen whose
concept of an attorney is one who principally tries cases before the courts. The
members of the bench and bar and the informed laymen such as businessmen,
know that in most developed societies today, substantially more legal work is
transacted in law offices than in the courtrooms. General practitioners of law
who do both litigation and non-litigation work also know that in most cases they
find themselves spending more time doing what [is] loosely desccribe[d] as
business counseling than in trying cases. The business lawyer has been
described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t]
need not [be] stress[ed] that in law, as in medicine, surgery should be avoided
where internal medicine can be effective." (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage in a
number of legal tasks, each involving different legal doctrines, legal skills, legal
processes, legal institutions, clients, and other interested parties. Even the
increasing numbers of lawyers in specialized practice wig usually perform at
least some legal services outside their specialty. And even within a narrow
specialty such as tax practice, a lawyer will shift from one legal task or role
such as advice-giving to an importantly different one such as representing a
client before an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one
of the relatively rare types — a litigator who specializes in this work to the
exclusion of much else. Instead, the work will require the lawyer to have
mastered the full range of traditional lawyer skills of client counselling, advice-
giving, document drafting, and negotiation. And increasingly lawyers find that
the new skills of evaluation and mediation are both effective for many clients
and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that
is constrained in very important ways, at least theoretically, so as to remove
from it some of the salient features of adversarial litigation. Of these special
roles, the most prominent is that of prosecutor. In some lawyers' work the
constraints are imposed both by the nature of the client and by the way in which
the lawyer is organized into a social unit to perform that work. The most
common of these roles are those of corporate practice and government legal
service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are
emerging trends in corporate law practice, a departure from the traditional
concept of practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging trends
in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal
policy formulation, particularly "model-making" and "contingency planning,"
has impressed upon us the inadequacy of traditional procedures in many
decisional contexts.
In a complex legal problem the mass of information to be processed, the sorting
and weighing of significant conditional factors, the appraisal of major trends,
the necessity of estimating the consequences of given courses of action, and the
need for fast decision and response in situations of acute danger have prompted
the use of sophisticated concepts of information flow theory, operational
analysis, automatic data processing, and electronic computing equipment.
Understandably, an improved decisional structure must stress the predictive
component of the policy-making process, wherein a "model", of the decisional
context or a segment thereof is developed to test projected alternative courses
of action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in predicting
and projecting the trends of the law, the subject of corporate finance law has
received relatively little organized and formalized attention in the philosophy
of advancing corporate legal education. Nonetheless, a cross-disciplinary
approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained
primarily in the law can be improved through an early introduction to multi-
variable decisional context and the various approaches for handling such
problems. Lawyers, particularly with either a master's or doctorate degree in
business administration or management, functioning at the legal policy level of
decision-making now have some appreciation for the concepts and analytical
techniques of other professions which are currently engaged in similar types of
complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing and
maintaining the business issue raised. (Business Star, "Corporate Finance Law,"
Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as
the "abogado de campanilla." He is the "big-time" lawyer, earning big money
and with a clientele composed of the tycoons and magnates of business and
industry.
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of attorneys
employed by a single corporation will vary with the size and type of the
corporation. Many smaller and some large corporations farm out all their legal
problems to private law firms. Many others have in-house counsel only for
certain matters. Other corporation have a staff large enough to handle most legal
problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the
legal affairs of a corporation. His areas of concern or jurisdiction may include,
inter alia: corporate legal research, tax laws research, acting out as corporate
secretary (in board meetings), appearances in both courts and other adjudicatory
agencies (including the Securities and Exchange Commission), and in other
capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal
affairs of the business of the corporation he is representing. These include such
matters as determining policy and becoming involved in management. (
Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from
the action, or not understanding how one's work actually fits into the work of
the orgarnization. This can be frustrating to someone who needs to see the
results of his work first hand. In short, a corporate lawyer is sometimes offered
this fortune to be more closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law field.
After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived by
many as glamorous, tills is an area coveted by corporate lawyers. In most cases,
however, the overseas jobs go to experienced attorneys while the younger
attorneys do their "international practice" in law libraries. (Business Star,
"Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to
wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent lawyer is one who surmounts them."
(Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so
to speak. No longer are we talking of the traditional law teaching method of
confining the subject study to the Corporation Code and the Securities Code but
an incursion as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of
learning: (1) acquisition of insights into current advances which are of particular
significance to the corporate counsel; (2) an introduction to usable disciplinary
skins applicable to a corporate counsel's management responsibilities; and (3) a
devotion to the organization and management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a shared
area linking them. Otherwise known as "intersecting managerial jurisprudence,"
it forms a unifying theme for the corporate counsel's total learning.
Some current advances in behavior and policy sciences affect the counsel's role.
For that matter, the corporate lawyer reviews the globalization process,
including the resulting strategic repositioning that the firms he provides counsel
for are required to make, and the need to think about a corporation's; strategy at
multiple levels. The salience of the nation-state is being reduced as firms deal
both with global multinational entities and simultaneously with sub-national
governmental units. Firms increasingly collaborate not only with public entities
but with each other — often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a new
role as a stakeholder — in some cases participating in the organization and
operations of governance through participation on boards and other decision-
making roles. Often these new patterns develop alongside existing legal
institutions and laws are perceived as barriers. These trends are complicated as
corporations organize for global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental policies
toward the promotion and management of technology. New collaborative
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other countries.
In Europe, Esprit, Eureka and Race are examples of collaborative efforts
between governmental and business Japan's MITI is world famous. (Emphasis
supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all kinds
of organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group-
context interaction such as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better predictors
of team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer
vis-a-vis the managerial mettle of corporations are challenged. Current research
is seeking ways both to anticipate effective managerial procedures and to
understand relationships of financial liability and insurance considerations.
(Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and pressing
immediate problems. An understanding of the role of feedback loops, inventory
levels, and rates of flow, enable users to simulate all sorts of systematic
problems — physical, economic, managerial, social, and psychological. New
programming techniques now make the system dynamics principles more
accessible to managers — including corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department, it can
be used to appraise the settlement value of litigation, aid in negotiation
settlement, and minimize the cost and risk involved in managing a portfolio of
cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can be
used directly by parties and mediators in all lands of negotiations. All integrated
set of such tools provide coherent and effective negotiation support, including
hands-on on instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that comprise
a major part of the general counsel's responsibilities. They differ from those of
remedial law. Preventive lawyering is concerned with minimizing the risks of
legal trouble and maximizing legal rights for such legal entities at that time
when transactional or similar facts are being considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken
those activities of the firm to which legal consequences attach. It needs to be
directly supportive of this nation's evolving economic and organizational fabric
as firms change to stay competitive in a global, interdependent environment.
The practice and theory of "law" is not adequate today to facilitate the
relationships needed in trying to make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The general
counsel has emerged in the last decade as one of the most vibrant subsets of the
legal profession. The corporate counsel hear responsibility for key aspects of
the firm's strategic issues, including structuring its global operations, managing
improved relationships with an increasingly diversified body of employees,
managing expanded liability exposure, creating new and varied interactions
with public decision-makers, coping internally with more complex make or by
decisions.
This whole exercise drives home the thesis that knowing corporate law is not
enough to make one a good general corporate counsel nor to give him a full
sense of how the legal system shapes corporate activities. And even if the
corporate lawyer's aim is not the understand all of the law's effects on corporate
activities, he must, at the very least, also gain a working knowledge of the
management issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation. "Business Star", "The
Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than
a passing knowledge of financial law affecting each aspect of their work. Yet,
many would admit to ignorance of vast tracts of the financial law territory. What
transpires next is a dilemma of professional security: Will the lawyer admit
ignorance and risk opprobrium?; or will he feign understanding and risk
exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino
to the position of Chairman of the COMELEC in a letter received by the
Secretariat of the Commission on Appointments on April 25, 1991. Petitioner
opposed the nomination because allegedly Monsod does not possess the
required qualification of having been engaged in the practice of law for at least
ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination
of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath
of office. On the same day, he assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on
Appointments of Monsod's nomination, petitioner as a citizen and taxpayer,
filed the instant petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the
bar examinations of 1960 with a grade of 86-55%. He has been a dues paying
member of the Integrated Bar of the Philippines since its inception in 1972-73.
He has also been paying his professional license fees as lawyer for more than
ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar,
Atty. Monsod worked in the law office of his father. During his stint in the
World Bank Group (1963-1970), Monsod worked as an operations officer for
about two years in Costa Rica and Panama, which involved getting acquainted
with the laws of member-countries negotiating loans and coordinating legal,
economic, and project work of the Bank. Upon returning to the Philippines in
1970, he worked with the Meralco Group, served as chief executive officer of
an investment bank and subsequently of a business conglomerate, and since
1986, has rendered services to various companies as a legal and economic
consultant or chief executive officer. As former Secretary-General (1986) and
National Chairman (1987) of NAMFREL. Monsod's work involved being
knowledgeable in election law. He appeared for NAMFREL in its accreditation
hearings before the Comelec. In the field of advocacy, Monsod, in his personal
capacity and as former Co-Chairman of the Bishops Businessmen's Conference
for Human Development, has worked with the under privileged sectors, such as
the farmer and urban poor groups, in initiating, lobbying for and engaging in
affirmative action for the agrarian reform law and lately the urban land reform
bill. Monsod also made use of his legal knowledge as a member of the Davide
Commission, a quast judicial body, which conducted numerous hearings (1990)
and as a member of the Constitutional Commission (1986-1987), and Chairman
of its Committee on Accountability of Public Officers, for which he was cited
by the President of the Commission, Justice Cecilia Muñoz-Palma for
"innumerable amendments to reconcile government functions with individual
freedoms and public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used
to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which
is adequately constituted to meet the various contingencies that arise during a
negotiation. Besides top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and an operations
officer (such as an official involved in negotiating the contracts) who comprise
the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies
for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the
Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down
the law as far as the loan transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5) fundamental parts: (1)
business terms; (2) borrower's representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and legal
advising, they score national development policies as key factors in maintaining
their countries' sovereignty. (Condensed from the work paper, entitled
"Wanted: Development Lawyers for Developing Nations," submitted by L.
Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development of
Nations at the Abidjan World Conference in Ivory Coast, sponsored by the
World Peace Through Law Center on August 26-31, 1973). ( Emphasis
supplied)
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in legislation
and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer
may work with an international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring contract agreements
contain such a mixture of technical language that they should be carefully
drafted and signed only with the advise of competent counsel in conjunction
with the guidance of adequate technical support personnel. (See International
Law Aspects of the Philippine External Debts, an unpublished dissertation,
U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set
of terms and conditions which determines the contractual remedies for a failure
to perform one or more elements of the contract. A good agreement must not
only define the responsibilities of both parties, but must also state the recourse
open to either party when the other fails to discharge an obligation. For a
compleat debt restructuring represents a devotion to that principle which in the
ultimate analysis is sine qua non for foreign loan agreements-an adherence to
the rule of law in domestic and international affairs of whose kind U.S. Supreme
Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners,
they beat no drums; but where they are, men learn that bustle and bush are not
the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The
Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine
Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law".
particularly the modern concept of law practice, and taking into consideration
the liberal construction intended by the framers of the Constitution, Atty.
Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a
lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-
legislator of both the rich and the poor — verily more than satisfy the
constitutional requirement — that he has been engaged in the practice of law
for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA
327, the Court said:
Appointment is an essentially discretionary power and must be performed by
the officer in which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications required by law. If he
does, then the appointment cannot be faulted on the ground that there are others
better qualified who should have been preferred. This is a political question
involving considerations of wisdom which only the appointing authority can
decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all the
other legal requirements are satisfied, the Commission has no alternative but to
attest to the appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. It also has no authority
to direct the appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing authority. An
appointment is essentially within the discretionary power of whomsoever it is
vested, subject to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists
of four (4) stages: (1) nomination; (2) confirmation by the Commission on
Appointments; (3) issuance of a commission (in the Philippines, upon
submission by the Commission on Appointments of its certificate of
confirmation, the President issues the permanent appointment; and (4)
acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No.
L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is
mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which
provides:
The Chairman and the Commisioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last Members for
three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law, which
modern connotation is exactly what was intended by the eminent framers of the
1987 Constitution. Moreover, Justice Padilla's definition would require
generally a habitual law practice, perhaps practised two or three times a week
and would outlaw say, law practice once or twice a year for ten consecutive
years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in
my written opinion, I made use of a definition of law practice which really
means nothing because the definition says that law practice " . . . is what people
ordinarily mean by the practice of law." True I cited the definition but only by
way of sarcasm as evident from my statement that the definition of law practice
by "traditional areas of law practice is essentially tautologous" or defining a
phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all
situations, most individuals, in making use of the law, or in advising others on
what the law means, are actually practicing law. In that sense, perhaps, but we
should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the
Philippine Bar, who has been practising law for over ten years. This is different
from the acts of persons practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected
President of the Philippines, say, on the ground that he lacks one or more
qualifications. This matter, I greatly doubt. For one thing, how can an action or
petition be brought against the President? And even assuming that he is indeed
disqualified, how can the action be entertained since he is the incumbent
President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings
on Monsod's confirmation, implicitly determined that he possessed the
necessary qualifications as required by law. The judgment rendered by the
Commission in the exercise of such an acknowledged power is beyond judicial
interference except only upon a clear showing of a grave abuse of discretion
amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution).
Thus, only where such grave abuse of discretion is clearly shown shall the Court
interfere with the Commission's judgment. In the instant case, there is no
occasion for the exercise of the Court's corrective power, since no abuse, much
less a grave abuse of discretion, that would amount to lack or excess of
jurisdiction and would warrant the issuance of the writs prayed, for has been
clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President, may
the Supreme Court reverse the Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible that
the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of
Judea asked Delilah (who was Samson's beloved) for help in capturing Samson.
Delilah agreed on condition that —
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed
an iron rod burning white-hot two or three inches away from in front of
Samson's eyes. This blinded the man. Upon hearing of what had happened to
her beloved, Delilah was beside herself with anger, and fuming with righteous
fury, accused the procurator of reneging on his word. The procurator calmly
replied: "Did any blade touch his skin? Did any blood flow from his veins?"
The procurator was clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.
Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit
only in the result; it does not appear to me that there has been an adequate
showing that the challenged determination by the Commission on
Appointments-that the appointment of respondent Monsod as Chairman of the
Commission on Elections should, on the basis of his stated qualifications and
after due assessment thereof, be confirmed-was attended by error so gross as to
amount to grave abuse of discretion and consequently merits nullification by
this Court in accordance with the second paragraph of Section 1, Article VIII
of the Constitution. I therefore vote to DENY the petition.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the
Petition at bar, I voted not only to require the respondents to comment on the
Petition, but I was the sole vote for the issuance of a temporary restraining order
to enjoin respondent Monsod from assuming the position of COMELEC
Chairman, while the Court deliberated on his constitutional qualification for the
office. My purpose in voting for a TRO was to prevent the inconvenience and
even embarrassment to all parties concerned were the Court to finally decide
for respondent Monsod's disqualification. Moreover, a reading of the Petition
then in relation to established jurisprudence already showed prima facie that
respondent Monsod did not possess the needed qualification, that is, he had not
engaged in the practice of law for at least ten (10) years prior to his appointment
as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more
convinced that the constitutional requirement of "practice of law for at least ten
(10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration
because, ultimately, the core issue to be resolved in this petition is the proper
construal of the constitutional provision requiring a majority of the membership
of COMELEC, including the Chairman thereof to "have been engaged in the
practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987
Constitution). Questions involving the construction of constitutional provisions
are best left to judicial resolution. As declared in Angara v. Electoral
Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC
Chairman. Among these are that he must have been "engaged in the practice of
law for at least ten (10) years." It is the bounden duty of this Court to ensure
that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers
to the actual performance or application of knowledge as distinguished from
mere possession of knowledge; it connotes an active, habitual, repeated or
customary action.1 To "practice" law, or any profession for that matter, means,
to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing
the tasks of a nursing aide, cannot be said to be in the "practice of medicine." A
certified public accountant who works as a clerk, cannot be said to practice his
profession as an accountant. In the same way, a lawyer who is employed as a
business executive or a corporate manager, other than as head or attorney of a
Legal Department of a corporation or a governmental agency, cannot be said to
be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:2
Practice is more than an isolated appearance for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it is
frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA,
M.S. 768). Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out to the public as a
lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522,
98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a
Memorandum it prepared, enumerated several factors determinative of whether
a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually
holding one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA
109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a
circular announcing the establishment of a law office for the general practice of
law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as
a lawyer before a notary public, and files a manifestation with the Supreme
Court informing it of his intention to practice law in all courts in the country
(People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is a
habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner,
127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself
to be in the active and continued practice of the legal profession and that his
professional services are available to the public for compensation, as a service
of his livelihood or in consideration of his said services. (People v. Villanueva,
supra). Hence, charging for services such as preparation of documents involving
the use of legal knowledge and skill is within the term "practice of law" (Ernani
Paño, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v.
People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion
as to the proper interpretation of a statute, and receives pay for it, is to that
extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and
Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to
clients and all action taken for them in matters connected with the law; are
practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal
knowledge, training and experience is within the term "practice of law". (Martin
supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the
existence of lawyer-client relationship. Hence, where a lawyer undertakes an
activity which requires knowledge of law but involves no attorney-client
relationship, such as teaching law or writing law books or articles, he cannot be
said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal
Ethics, 1989 ed., p. 30).3
The above-enumerated factors would, I believe, be useful aids in determining
whether or not respondent Monsod meets the constitutional qualification of
practice of law for at least ten (10) years at the time of his appointment as
COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the
practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so
HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment
as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from
the records, I am persuaded that if ever he did perform any of the tasks which
constitute the practice of law, he did not do so HABITUALLY for at least ten
(10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be
latitudinarianly considered activities peculiar to the practice of law, like the
drafting of legal documents and the rendering of legal opinion or advice, such
were isolated transactions or activities which do not qualify his past endeavors
as "practice of law." To become engaged in the practice of law, there must be a
continuity, or a succession of acts. As observed by the Solicitor General in
People vs. Villanueva:4
Essentially, the word private practice of law implies that one must have
presented himself to be in the active and continued practice of the legal
profession and that his professional services are available to the public for a
compensation, as a source of his livelihood or in consideration of his said
services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent
Monsod as not qualified for the position of COMELEC Chairman for not having
engaged in the practice of law for at least ten (10) years prior to his appointment
to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must
dissent just the same. There are certain points on which I must differ with him
while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications
of the respondent simply because his nomination has been confirmed by the
Commission on Appointments. In my view, this is not a political question that
we are barred from resolving. Determination of the appointee's credentials is
made on the basis of the established facts, not the discretion of that body. Even
if it were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion
of the appointing authority to choose between two claimants to the same office
who both possessed the required qualifications. It was that kind of discretion
that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this
Court for lack of the required qualifications, I see no reason why we cannot
disqualified an appointee simply because he has passed the Commission on
Appointments.
Even the President of the Philippines may be declared ineligible by this Court
in an appropriate proceeding notwithstanding that he has been found acceptable
by no less than the enfranchised citizenry. The reason is that what we would be
examining is not the wisdom of his election but whether or not he was qualified
to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the
ponencia may have been too sweeping in its definition of the phrase "practice
of law" as to render the qualification practically toothless. From the numerous
activities accepted as embraced in the term, I have the uncomfortable feeling
that one does not even have to be a lawyer to be engaged in the practice of law
as long as his activities involve the application of some law, however
peripherally. The stock broker and the insurance adjuster and the realtor could
come under the definition as they deal with or give advice on matters that are
likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main
occupation is another business and he interprets and applies some law only as
an incident of such business. That covers every company organized under the
Corporation Code and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity that is not
affected by some law or government regulation the businessman must know
about and observe. In fact, again going by the definition, a lawyer does not even
have to be part of a business concern to be considered a practitioner. He can be
so deemed when, on his own, he rents a house or buys a car or consults a doctor
as these acts involve his knowledge and application of the laws regulating such
transactions. If he operates a public utility vehicle as his main source of
livelihood, he would still be deemed engaged in the practice of law because he
must obey the Public Service Act and the rules and regulations of the Energy
Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the
"performance of any acts ... in or out of court, commonly understood to be the
practice of law," which tells us absolutely nothing. The decision goes on to say
that "because lawyers perform almost every function known in the commercial
and governmental realm, such a definition would obviously be too global to be
workable."
The effect of the definition given in the ponencia is to consider virtually every
lawyer to be engaged in the practice of law even if he does not earn his living,
or at least part of it, as a lawyer. It is enough that his activities are incidentally
(even if only remotely) connected with some law, ordinance, or regulation. The
possible exception is the lawyer whose income is derived from teaching
ballroom dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade
me that he has been engaged in the practice of law for ten years as required by
the Constitution. It is conceded that he has been engaged in business and
finance, in which areas he has distinguished himself, but as an executive and
economist and not as a practicing lawyer. The plain fact is that he has occupied
the various positions listed in his resume by virtue of his experience and prestige
as a businessman and not as an attorney-at-law whose principal attention is
focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL
and the Constitutional Commission (together with non-lawyers like farmers and
priests) and was a member of the Davide Commission, he has not proved that
his activities in these capacities extended over the prescribed 10-year period of
actual practice of the law. He is doubtless eminently qualified for many other
positions worthy of his abundant talents but not as Chairman of the Commission
on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice
Paras, but I must regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law
as a qualification for public office would be settled one way or another in fairly
definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod
engaged in the practice of law (with one of these 5 leaving his vote behind while
on official leave but not expressing his clear stand on the matter); 4 categorically
stating that he did not practice law; 2 voting in the result because there was no
error so gross as to amount to grave abuse of discretion; one of official leave
with no instructions left behind on how he viewed the issue; and 2 not taking
part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the
work of a constitutional Commission on Appointments whose duty is precisely
to look into the qualifications of persons appointed to high office. Even if the
Commission errs, we have no power to set aside error. We can look only into
grave abuse of discretion or whimsically and arbitrariness. Second is our belief
that Mr. Monsod possesses superior qualifications in terms of executive ability,
proficiency in management, educational background, experience in
international banking and finance, and instant recognition by the public. His
integrity and competence are not questioned by the petitioner. What is before
us is compliance with a specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty.
He has never engaged in the practice of law for even one year. He is a member
of the bar but to say that he has practiced law is stretching the term beyond
rational limits.
A person may have passed the bar examinations. But if he has not dedicated his
life to the law, if he has not engaged in an activity where membership in the bar
is a requirement I fail to see how he can claim to have been engaged in the
practice of law.
Engaging in the practice of law is a qualification not only for COMELEC
chairman but also for appointment to the Supreme Court and all lower courts.
What kind of Judges or Justices will we have if there main occupation is selling
real estate, managing a business corporation, serving in fact-finding committee,
working in media, or operating a farm with no active involvement in the law,
whether in Government or private practice, except that in one joyful moment in
the distant past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten
years." The deliberate choice of words shows that the practice envisioned is
active and regular, not isolated, occasional, accidental, intermittent, incidental,
seasonal, or extemporaneous. To be "engaged" in an activity for ten years
requires committed participation in something which is the result of one's
decisive choice. It means that one is occupied and involved in the enterprise;
one is obliged or pledged to carry it out with intent and attention during the ten-
year period.
I agree with the petitioner that based on the bio-data submitted by respondent
Monsod to the Commission on Appointments, the latter has not been engaged
in the practice of law for at least ten years. In fact, if appears that Mr. Monsod
has never practiced law except for an alleged one year period after passing the
bar examinations when he worked in his father's law firm. Even then his law
practice must have been extremely limited because he was also working for
M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during
that period. How could he practice law in the United States while not a member
of the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations
in 1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of
Pennsylvania
2. 1963-1970: World Bank Group — Economist, Industry Department;
Operations, Latin American Department; Division Chief, South Asia and
Middle East, International Finance Corporation
3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco
Securities Corporation, Philippine Petroleum Corporation, Philippine Electric
Corporation
4. 1973-1976: Yujuico Group — President, Fil-Capital Development
Corporation and affiliated companies
5. 1976-1978: Finaciera Manila — Chief Executive Officer
6. 1978-1986: Guevent Group of Companies — Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission — Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup
Attempt — Member
9. Presently: Chairman of the Board and Chief Executive Officer of the
following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the law enough attention or a certain degree of
commitment and participation as would support in all sincerity and candor the
claim of having engaged in its practice for at least ten years. Instead of working
as a lawyer, he has lawyers working for him. Instead of giving receiving that
legal advice of legal services, he was the oneadvice and those services as an
executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to
equate "engaged in the practice of law" with the use of legal knowledge in
various fields of endeavor such as commerce, industry, civic work, blue ribbon
investigations, agrarian reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an
ordinary layman accepts as having a familiar and customary well-defined
meaning. Every resident of this country who has reached the age of discernment
has to know, follow, or apply the law at various times in his life. Legal
knowledge is useful if not necessary for the business executive, legislator,
mayor, barangay captain, teacher, policeman, farmer, fisherman, market
vendor, and student to name only a few. And yet, can these people honestly
assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at
least ten years." It is not satisfied with having been "a member of the Philippine
bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with
litigation but also services rendered out of court, and it includes the giving of
advice or the rendering of any services requiring the use of legal skill or
knowledge, such as preparing a will, contract or other instrument, the legal
effect of which, under the facts and conditions involved, must be carefully
determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d
693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank,
344 Ill. 462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of
what constitutes the practice of law. "Practicing law" has been defined as
"Practicing as an attorney or counselor at law according to the laws and customs
of our courts, is the giving of advice or rendition of any sort of service by any
person, firm or corporation when the giving of such advice or rendition of such
service requires the use of any degree of legal knowledge or skill." Without
adopting that definition, we referred to it as being substantially correct in People
ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill.
462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not
only be activities peculiar to the work of a lawyer, they should also be
performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He
was asked whether or not he ever prepared contracts for the parties in real-estate
transactions where he was not the procuring agent. He answered: "Very
seldom." In answer to the question as to how many times he had prepared
contracts for the parties during the twenty-one years of his business, he said: "I
have no Idea." When asked if it would be more than half a dozen times his
answer was I suppose. Asked if he did not recall making the statement to several
parties that he had prepared contracts in a large number of instances, he
answered: "I don't recall exactly what was said." When asked if he did not
remember saying that he had made a practice of preparing deeds, mortgages and
contracts and charging a fee to the parties therefor in instances where he was
not the broker in the deal, he answered: "Well, I don't believe so, that is not a
practice." Pressed further for an answer as to his practice in preparing contracts
and deeds for parties where he was not the broker, he finally answered: "I have
done about everything that is on the books as far as real estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a
lawful right to do any legal work in connection with real-estate transactions,
especially in drawing of real-estate contracts, deeds, mortgages, notes and the
like. There is no doubt but that he has engaged in these practices over the years
and has charged for his services in that connection. ... (People v. Schafer, 87
N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed
by another to act in his stead; an agent; more especially, one of a class of persons
authorized to appear and act for suitors or defendants in legal proceedings.
Strictly, these professional persons are attorneys at law, and non-professional
agents are properly styled "attorney's in fact;" but the single word is much used
as meaning an attorney at law. A person may be an attorney in facto for another,
without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney,
or attorney at law, says Webster, is an officer of a court of law, legally qualified
to prosecute and defend actions in such court on the retainer of clients. "The
principal duties of an attorney are (1) to be true to the court and to his client; (2)
to manage the business of his client with care, skill, and integrity; (3) to keep
his client informed as to the state of his business; (4) to keep his secrets confided
to him as such. ... His rights are to be justly compensated for his services." Bouv.
Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster,
means 'to do or perform frequently, customarily, or habitually; to perform by a
succession of acts, as, to practice gaming, ... to carry on in practice, or repeated
action; to apply, as a theory, to real life; to exercise, as a profession, trade, art.
etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523;
Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or
a succession of acts. Thus, we stated in the case of People v. Villanueva (14
SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it is
frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA,
M.S. 768). Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out to the public, as
a lawyer and demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes
habituality as a required component of the meaning of practice of law in a
Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually
holding one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA
109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a
circular announcing the establishment of a law office for the general practice of
law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as
a lawyer before a notary public, and files a manifestation with the Supreme
Court informing it of his intention to practice law in all courts in the country
(People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is a
habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1
27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited
from his legal knowledge, the use of such legal knowledge is incidental and
consists of isolated activities which do not fall under the denomination of
practice of law. Admission to the practice of law was not required for
membership in the Constitutional Commission or in the Fact-Finding
Commission on the 1989 Coup Attempt. Any specific legal activities which
may have been assigned to Mr. Monsod while a member may be likened to
isolated transactions of foreign corporations in the Philippines which do not
categorize the foreign corporations as doing business in the Philippines. As in
the practice of law, doing business also should be active and continuous.
Isolated business transactions or occasional, incidental and casual transactions
are not within the context of doing business. This was our ruling in the case of
Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the
Constitutional Commission may possess the background, competence,
integrity, and dedication, to qualify for such high offices as President, Vice-
President, Senator, Congressman or Governor but the Constitution in
prescribing the specific qualification of having engaged in the practice of law
for at least ten (10) years for the position of COMELEC Chairman has ordered
that he may not be confirmed for that office. The Constitution charges the public
respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave
abuse of discretion in confirming the nomination of respondent Monsod as
Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit
only in the result; it does not appear to me that there has been an adequate
showing that the challenged determination by the Commission on
Appointments-that the appointment of respondent Monsod as Chairman of the
Commission on Elections should, on the basis of his stated qualifications and
after due assessment thereof, be confirmed-was attended by error so gross as to
amount to grave abuse of discretion and consequently merits nullification by
this Court in accordance with the second paragraph of Section 1, Article VIII
of the Constitution. I therefore vote to DENY the petition.
Melencio-Herrera, J., concur.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the
Petition at bar, I voted not only to require the respondents to comment on the
Petition, but I was the sole vote for the issuance of a temporary restraining order
to enjoin respondent Monsod from assuming the position of COMELEC
Chairman, while the Court deliberated on his constitutional qualification for the
office. My purpose in voting for a TRO was to prevent the inconvenience and
even embarrassment to all parties concerned were the Court to finally decide
for respondent Monsod's disqualification. Moreover, a reading of the Petition
then in relation to established jurisprudence already showed prima facie that
respondent Monsod did not possess the needed qualification, that is, he had not
engaged in the practice of law for at least ten (10) years prior to his appointment
as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more
convinced that the constitutional requirement of "practice of law for at least ten
(10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration
because, ultimately, the core issue to be resolved in this petition is the proper
construal of the constitutional provision requiring a majority of the membership
of COMELEC, including the Chairman thereof to "have been engaged in the
practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987
Constitution). Questions involving the construction of constitutional provisions
are best left to judicial resolution. As declared in Angara v. Electoral
Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC
Chairman. Among these are that he must have been "engaged in the practice of
law for at least ten (10) years." It is the bounden duty of this Court to ensure
that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers
to the actual performance or application of knowledge as distinguished from
mere possession of knowledge; it connotes an active, habitual, repeated or
customary action.1 To "practice" law, or any profession for that matter, means,
to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing
the tasks of a nursing aide, cannot be said to be in the "practice of medicine." A
certified public accountant who works as a clerk, cannot be said to practice his
profession as an accountant. In the same way, a lawyer who is employed as a
business executive or a corporate manager, other than as head or attorney of a
Legal Department of a corporation or a governmental agency, cannot be said to
be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:2
Practice is more than an isolated appearance for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it is
frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA,
M.S. 768). Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out to the public as a
lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522,
98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a
Memorandum it prepared, enumerated several factors determinative of whether
a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually
holding one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA
109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a
circular announcing the establishment of a law office for the general practice of
law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as
a lawyer before a notary public, and files a manifestation with the Supreme
Court informing it of his intention to practice law in all courts in the country
(People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is a
habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner,
127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself
to be in the active and continued practice of the legal profession and that his
professional services are available to the public for compensation, as a service
of his livelihood or in consideration of his said services. (People v. Villanueva,
supra). Hence, charging for services such as preparation of documents involving
the use of legal knowledge and skill is within the term "practice of law" (Ernani
Paño, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v.
People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion
as to the proper interpretation of a statute, and receives pay for it, is to that
extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and
Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to
clients and all action taken for them in matters connected with the law; are
practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal
knowledge, training and experience is within the term "practice of law". (Martin
supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the
existence of lawyer-client relationship. Hence, where a lawyer undertakes an
activity which requires knowledge of law but involves no attorney-client
relationship, such as teaching law or writing law books or articles, he cannot be
said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal
Ethics, 1989 ed., p. 30).3
The above-enumerated factors would, I believe, be useful aids in determining
whether or not respondent Monsod meets the constitutional qualification of
practice of law for at least ten (10) years at the time of his appointment as
COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the
practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so
HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment
as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from
the records, I am persuaded that if ever he did perform any of the tasks which
constitute the practice of law, he did not do so HABITUALLY for at least ten
(10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be
latitudinarianly considered activities peculiar to the practice of law, like the
drafting of legal documents and the rendering of legal opinion or advice, such
were isolated transactions or activities which do not qualify his past endeavors
as "practice of law." To become engaged in the practice of law, there must be a
continuity, or a succession of acts. As observed by the Solicitor General in
People vs. Villanueva:
Essentially, the word private practice of law implies that one must have
presented himself to be in the active and continued practice of the legal
profession and that his professional services are available to the public for a
compensation, as a source of his livelihood or in consideration of his said
services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent
Monsod as not qualified for the position of COMELEC Chairman for not having
engaged in the practice of law for at least ten (10) years prior to his appointment
to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must
dissent just the same. There are certain points on which I must differ with him
while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications
of the respondent simply because his nomination has been confirmed by the
Commission on Appointments. In my view, this is not a political question that
we are barred from resolving. Determination of the appointee's credentials is
made on the basis of the established facts, not the discretion of that body. Even
if it were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion
of the appointing authority to choose between two claimants to the same office
who both possessed the required qualifications. It was that kind of discretion
that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this
Court for lack of the required qualifications, I see no reason why we cannot
disqualified an appointee simply because he has passed the Commission on
Appointments.
Even the President of the Philippines may be declared ineligible by this Court
in an appropriate proceeding notwithstanding that he has been found acceptable
by no less than the enfranchised citizenry. The reason is that what we would be
examining is not the wisdom of his election but whether or not he was qualified
to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the
ponencia may have been too sweeping in its definition of the phrase "practice
of law" as to render the qualification practically toothless. From the numerous
activities accepted as embraced in the term, I have the uncomfortable feeling
that one does not even have to be a lawyer to be engaged in the practice of law
as long as his activities involve the application of some law, however
peripherally. The stock broker and the insurance adjuster and the realtor could
come under the definition as they deal with or give advice on matters that are
likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main
occupation is another business and he interprets and applies some law only as
an incident of such business. That covers every company organized under the
Corporation Code and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity that is not
affected by some law or government regulation the businessman must know
about and observe. In fact, again going by the definition, a lawyer does not even
have to be part of a business concern to be considered a practitioner. He can be
so deemed when, on his own, he rents a house or buys a car or consults a doctor
as these acts involve his knowledge and application of the laws regulating such
transactions. If he operates a public utility vehicle as his main source of
livelihood, he would still be deemed engaged in the practice of law because he
must obey the Public Service Act and the rules and regulations of the Energy
Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the
"performance of any acts . . . in or out of court, commonly understood to be the
practice of law," which tells us absolutely nothing. The decision goes on to say
that "because lawyers perform almost every function known in the commercial
and governmental realm, such a definition would obviously be too global to be
workable."
The effect of the definition given in the ponencia is to consider virtually every
lawyer to be engaged in the practice of law even if he does not earn his living,
or at least part of it, as a lawyer. It is enough that his activities are incidentally
(even if only remotely) connected with some law, ordinance, or regulation. The
possible exception is the lawyer whose income is derived from teaching
ballroom dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade
me that he has been engaged in the practice of law for ten years as required by
the Constitution. It is conceded that he has been engaged in business and
finance, in which areas he has distinguished himself, but as an executive and
economist and not as a practicing lawyer. The plain fact is that he has occupied
the various positions listed in his resume by virtue of his experience and prestige
as a businessman and not as an attorney-at-law whose principal attention is
focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL
and the Constitutional Commission (together with non-lawyers like farmers and
priests) and was a member of the Davide Commission, he has not proved that
his activities in these capacities extended over the prescribed 10-year period of
actual practice of the law. He is doubtless eminently qualified for many other
positions worthy of his abundant talents but not as Chairman of the Commission
on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice
Paras, but I must regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law
as a qualification for public office would be settled one way or another in fairly
definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod
engaged in the practice of law (with one of these 5 leaving his vote behind while
on official leave but not expressing his clear stand on the matter); 4 categorically
stating that he did not practice law; 2 voting in the result because there was no
error so gross as to amount to grave abuse of discretion; one of official leave
with no instructions left behind on how he viewed the issue; and 2 not taking
part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the
work of a constitutional Commission on Appointments whose duty is precisely
to look into the qualifications of persons appointed to high office. Even if the
Commission errs, we have no power to set aside error. We can look only into
grave abuse of discretion or whimsically and arbitrariness. Second is our belief
that Mr. Monsod possesses superior qualifications in terms of executive ability,
proficiency in management, educational background, experience in
international banking and finance, and instant recognition by the public. His
integrity and competence are not questioned by the petitioner. What is before
us is compliance with a specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty.
He has never engaged in the practice of law for even one year. He is a member
of the bar but to say that he has practiced law is stretching the term beyond
rational limits.
A person may have passed the bar examinations. But if he has not dedicated his
life to the law, if he has not engaged in an activity where membership in the bar
is a requirement I fail to see how he can claim to have been engaged in the
practice of law.
Engaging in the practice of law is a qualification not only for COMELEC
chairman but also for appointment to the Supreme Court and all lower courts.
What kind of Judges or Justices will we have if there main occupation is selling
real estate, managing a business corporation, serving in fact-finding committee,
working in media, or operating a farm with no active involvement in the law,
whether in Government or private practice, except that in one joyful moment in
the distant past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten
years." The deliberate choice of words shows that the practice envisioned is
active and regular, not isolated, occasional, accidental, intermittent, incidental,
seasonal, or extemporaneous. To be "engaged" in an activity for ten years
requires committed participation in something which is the result of one's
decisive choice. It means that one is occupied and involved in the enterprise;
one is obliged or pledged to carry it out with intent and attention during the ten-
year period.
I agree with the petitioner that based on the bio-data submitted by respondent
Monsod to the Commission on Appointments, the latter has not been engaged
in the practice of law for at least ten years. In fact, if appears that Mr. Monsod
has never practiced law except for an alleged one year period after passing the
bar examinations when he worked in his father's law firm. Even then his law
practice must have been extremely limited because he was also working for
M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during
that period. How could he practice law in the United States while not a member
of the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations
in 1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of
Pennsylvania
2. 1963-1970: World Bank Group — Economist, Industry Department;
Operations, Latin American Department; Division Chief, South Asia and
Middle East, International Finance Corporation
3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco
Securities Corporation, Philippine Petroleum Corporation, Philippine Electric
Corporation
4. 1973-1976: Yujuico Group — President, Fil-Capital Development
Corporation and affiliated companies
5. 1976-1978: Finaciera Manila — Chief Executive Officer
6. 1978-1986: Guevent Group of Companies — Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission — Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup
Attempt — Member
9. Presently: Chairman of the Board and Chief Executive Officer of the
following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the law enough attention or a certain degree of
commitment and participation as would support in all sincerity and candor the
claim of having engaged in its practice for at least ten years. Instead of working
as a lawyer, he has lawyers working for him. Instead of giving receiving that
legal advice of legal services, he was the oneadvice and those services as an
executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to
equate "engaged in the practice of law" with the use of legal knowledge in
various fields of endeavor such as commerce, industry, civic work, blue ribbon
investigations, agrarian reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an
ordinary layman accepts as having a familiar and customary well-defined
meaning. Every resident of this country who has reached the age of discernment
has to know, follow, or apply the law at various times in his life. Legal
knowledge is useful if not necessary for the business executive, legislator,
mayor, barangay captain, teacher, policeman, farmer, fisherman, market
vendor, and student to name only a few. And yet, can these people honestly
assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at
least ten years." It is not satisfied with having been "a member of the Philippine
bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with
litigation but also services rendered out of court, and it includes the giving of
advice or the rendering of any services requiring the use of legal skill or
knowledge, such as preparing a will, contract or other instrument, the legal
effect of which, under the facts and conditions involved, must be carefully
determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d
693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank,
344 Ill. 462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of
what constitutes the practice of law. "Practicing law" has been defined as
"Practicing as an attorney or counselor at law according to the laws and customs
of our courts, is the giving of advice or rendition of any sort of service by any
person, firm or corporation when the giving of such advice or rendition of such
service requires the use of any degree of legal knowledge or skill." Without
adopting that definition, we referred to it as being substantially correct in People
ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill.
462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not
only be activities peculiar to the work of a lawyer, they should also be
performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He
was asked whether or not he ever prepared contracts for the parties in real-estate
transactions where he was not the procuring agent. He answered: "Very
seldom." In answer to the question as to how many times he had prepared
contracts for the parties during the twenty-one years of his business, he said: "I
have no Idea." When asked if it would be more than half a dozen times his
answer was I suppose. Asked if he did not recall making the statement to several
parties that he had prepared contracts in a large number of instances, he
answered: "I don't recall exactly what was said." When asked if he did not
remember saying that he had made a practice of preparing deeds, mortgages and
contracts and charging a fee to the parties therefor in instances where he was
not the broker in the deal, he answered: "Well, I don't believe so, that is not a
practice." Pressed further for an answer as to his practice in preparing contracts
and deeds for parties where he was not the broker, he finally answered: "I have
done about everything that is on the books as far as real estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a
lawful right to do any legal work in connection with real-estate transactions,
especially in drawing of real-estate contracts, deeds, mortgages, notes and the
like. There is no doubt but that he has engaged in these practices over the years
and has charged for his services in that connection. ... (People v. Schafer, 87
N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed
by another to act in his stead; an agent; more especially, one of a class of persons
authorized to appear and act for suitors or defendants in legal proceedings.
Strictly, these professional persons are attorneys at law, and non-professional
agents are properly styled "attorney's in fact;" but the single word is much used
as meaning an attorney at law. A person may be an attorney in facto for another,
without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney,
or attorney at law, says Webster, is an officer of a court of law, legally qualified
to prosecute and defend actions in such court on the retainer of clients. "The
principal duties of an attorney are (1) to be true to the court and to his client; (2)
to manage the business of his client with care, skill, and integrity; (3) to keep
his client informed as to the state of his business; (4) to keep his secrets confided
to him as such. ... His rights are to be justly compensated for his services." Bouv.
Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster,
means 'to do or perform frequently, customarily, or habitually; to perform by a
succession of acts, as, to practice gaming, ... to carry on in practice, or repeated
action; to apply, as a theory, to real life; to exercise, as a profession, trade, art.
etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523;
Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or
a succession of acts. Thus, we stated in the case of People v. Villanueva (14
SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it is
frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA,
M.S. 768). Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out to the public, as
a lawyer and demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes
habituality as a required component of the meaning of practice of law in a
Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually
holding one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA
109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a
circular announcing the establishment of a law office for the general practice of
law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as
a lawyer before a notary public, and files a manifestation with the Supreme
Court informing it of his intention to practice law in all courts in the country
(People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is a
habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1
27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited
from his legal knowledge, the use of such legal knowledge is incidental and
consists of isolated activities which do not fall under the denomination of
practice of law. Admission to the practice of law was not required for
membership in the Constitutional Commission or in the Fact-Finding
Commission on the 1989 Coup Attempt. Any specific legal activities which
may have been assigned to Mr. Monsod while a member may be likened to
isolated transactions of foreign corporations in the Philippines which do not
categorize the foreign corporations as doing business in the Philippines. As in
the practice of law, doing business also should be active and continuous.
Isolated business transactions or occasional, incidental and casual transactions
are not within the context of doing business. This was our ruling in the case of
Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the
Constitutional Commission may possess the background, competence,
integrity, and dedication, to qualify for such high offices as President, Vice-
President, Senator, Congressman or Governor but the Constitution in
prescribing the specific qualification of having engaged in the practice of law
for at least ten (10) years for the position of COMELEC Chairman has ordered
that he may not be confirmed for that office. The Constitution charges the public
respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave
abuse of discretion in confirming the nomination of respondent Monsod as
Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
21st
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created them
male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard voices
coming from inside the bamboo. "Oh North Wind! North Wind! Please let us
out!," the voices said. She pecked the reed once, then twice. All of a sudden,
the bamboo cracked and slit open. Out came two human beings; one was a male
and the other was a female. Amihan named the man "Malakas" (Strong) and the
woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does the
law recognize the changes made by a physician using scalpel, drugs and
counseling with regard to a person’s sex? May a person successfully petition
for a change of name and sex appearing in the birth certificate to reflect the
result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a
petition for the change of his first name and sex in his birth certificate in the
Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case
No. 02-105207, impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to the
spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962.
His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate
of live birth (birth certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically male but
feels, thinks and acts as a female" and that he had always identified himself with
girls since childhood.1 Feeling trapped in a man’s body, he consulted several
doctors in the United States. He underwent psychological examination,
hormone treatment and breast augmentation. His attempts to transform himself
to a "woman" culminated on January 27, 2001 when he underwent sex
reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by
Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting that he (petitioner) had in
fact undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to be married.
He then sought to have his name in his birth certificate changed from "Rommel
Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in the People’s
Journal Tonight, a newspaper of general circulation in Metro Manila, for three
consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor
General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were established.
No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz,
Jr. and his American fiancé, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its
relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or any
infraction thereof or for any unlawful motive but solely for the purpose of
making his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be more in
consonance with the principles of justice and equity. With his sexual [re-
assignment], petitioner, who has always felt, thought and acted like a woman,
now possesses the physique of a female. Petitioner’s misfortune to be trapped
in a man’s body is not his own doing and should not be in any way taken against
him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused
to anybody or the community in granting the petition. On the contrary, granting
the petition would bring the much-awaited happiness on the part of the
petitioner and her [fiancé] and the realization of their dreams.
Finally, no evidence was presented to show any cause or ground to deny the
present petition despite due notice and publication thereof. Even the State,
through the [OSG] has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and
ordering the Civil Registrar of Manila to change the entries appearing in the
Certificate of Birth of [p]etitioner, specifically for petitioner’s first name from
"Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE.
5
On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG,
filed a petition for certiorari in the Court of Appeals.6 It alleged that there is no
law allowing the change of entries in the birth certificate by reason of sex
alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of
the Republic. It ruled that the trial court’s decision lacked legal basis. There is
no law allowing the change of either name or sex in the certificate of birth on
the ground of sex reassignment through surgery. Thus, the Court of Appeals
granted the Republic’s petition, set aside the decision of the trial court and
ordered the dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his birth
certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103
and 108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for change
of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or any
infraction thereof or for any unlawful motive but solely for the purpose of
making his birth records compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a female,
he became entitled to the civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for
purposes of identification.11 A change of name is a privilege, not a right.12
Petitions for change of name are controlled by statutes.13 In this connection,
Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial
authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change
of First Name or Nickname. – No entry in a civil register shall be changed or
corrected without a judicial order, except for clerical or typographical errors
and change of first name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in accordance with
the provisions of this Act and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and
authority to entertain petitions for change of first name to the city or municipal
civil registrar or consul general concerned. Under the law, therefore,
jurisdiction over applications for change of first name is now primarily lodged
with the aforementioned administrative officers. The intent and effect of the law
is to exclude the change of first name from the coverage of Rules 103 (Change
of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry)
of the Rules of Court, until and unless an administrative petition for change of
name is first filed and subsequently denied.15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily administrative in
nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name may be
allowed:
SECTION 4. Grounds for Change of First Name or Nickname. – The petition
for change of first name or nickname may be allowed in any of the following
cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used
by the petitioner and he has been publicly known by that first name or nickname
in the community; or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex he
thought he transformed himself into through surgery. However, a change of
name does not alter one’s legal capacity or civil status.18 RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather than
avoiding confusion, changing petitioner’s first name for his declared purpose
may only create grave complications in the civil registry and the public interest.
Before a person can legally change his given name, he must present proper or
reasonable cause or any compelling reason justifying such change.19 In
addition, he must show that he will be prejudiced by the use of his true and
official name.20 In this case, he failed to show, or even allege, any prejudice
that he might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of
petitioner’s first name was not within that court’s primary jurisdiction as the
petition should have been filed with the local civil registrar concerned,
assuming it could be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided under RA 9048. It was
also filed in the wrong venue as the proper venue was in the Office of the Civil
Registrar of Manila where his birth certificate is kept. More importantly, it had
no merit since the use of his true and official name does not prejudice him at
all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s
petition in so far as the change of his first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On
the Ground of Sex Reassignment
The determination of a person’s sex appearing in his birth certificate is a legal
issue and the court must look to the statutes.21 In this connection, Article 412
of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected without a
judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA
9048 in so far as clerical or typographical errors are involved. The correction or
change of such matters can now be made through administrative proceedings
and without the need for a judicial order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule
108 now applies only to substantial changes and corrections in entries in the
civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. – As used in this Act, the following terms
shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a mistake committed in the
performance of clerical work in writing, copying, transcribing or typing an entry
in the civil register that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the eyes or obvious to
the understanding, and can be corrected or changed only by reference to other
existing record or records: Provided, however, That no correction must involve
the change of nationality, age, status or sex of the petitioner. (emphasis
supplied)
Under RA 9048, a correction in the civil registry involving the change of sex is
not a mere clerical or typographical error. It is a substantial change for which
the applicable procedure is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of
the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of
marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil
Code include even those that occur after birth.25 However, no reasonable
interpretation of the provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error
from" while to change means "to replace something with something else of the
same kind or with something that serves as a substitute."26 The birth certificate
of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is
necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of certain
acts (such as legitimations, acknowledgments of illegitimate children and
naturalization), events (such as births, marriages, naturalization and deaths) and
judicial decrees (such as legal separations, annulments of marriage, declarations
of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation and changes of name).
These acts, events and judicial decrees produce legal consequences that touch
upon the legal capacity, status and nationality of a person. Their effects are
expressly sanctioned by the laws. In contrast, sex reassignment is not among
those acts or events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is, the sum
total of capacities and incapacities) of a person in view of his age, nationality
and his family membership.27
The status of a person in law includes all his personal qualities and relations,
more or less permanent in nature, not ordinarily terminable at his own will, such
as his being legitimate or illegitimate, or his being married or not. The
comprehensive term status… include such matters as the beginning and end of
legal personality, capacity to have rights in general, family relations, and its
various aspects, such as birth, legitimation, adoption, emancipation, marriage,
divorce, and sometimes even succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and family relations. It is a part
of a person’s legal capacity and civil status. In this connection, Article 413 of
the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall be
governed by special laws.
But there is no such special law in the Philippines governing sex reassignment
and its effects. This is fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. – The declaration of the
physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt from
documentary stamp tax and shall be sent to the local civil registrar not later than
thirty days after the birth, by the physician or midwife in attendance at the birth
or by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the following
facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names,
citizenship and religion of parents or, in case the father is not known, of the
mother alone; (d) civil status of parents; (e) place where the infant was born;
and (f) such other data as may be required in the regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical record of the facts
as they existed at the time of birth.29 Thus, the sex of a person is determined at
birth, visually done by the birth attendant (the physician or midwife) by
examining the genitals of the infant. Considering that there is no law legally
recognizing sex reassignment, the determination of a person’s sex made at the
time of his or her birth, if not attended by error,30 is immutable.31
When words are not defined in a statute they are to be given their common and
ordinary meaning in the absence of a contrary legislative intent. The words
"sex," "male" and "female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a male from a female"32
or "the distinction between male and female."33 Female is "the sex that
produces ova or bears young"34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in
everyday understanding do not include persons who have undergone sex
reassignment. Furthermore, "words that are employed in a statute which had at
the time a well-known meaning are presumed to have been used in that sense
unless the context compels to the contrary."36 Since the statutory language of
the Civil Register Law was enacted in the early 1900s and remains unchanged,
it cannot be argued that the term "sex" as used then is something alterable
through surgery or something that allows a post-operative male-to-female
transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his body and
appearance through the intervention of modern surgery, no law authorizes the
change of entry as to sex in the civil registry for that reason. Thus, there is no
legal basis for his petition for the correction or change of the entries in his birth
certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be
Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with the
principles of justice and equity. It believed that allowing the petition would
cause no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and
public policy consequences. First, even the trial court itself found that the
petition was but petitioner’s first step towards his eventual marriage to his male
fiancé. However, marriage, one of the most sacred social institutions, is a
special contract of permanent union between a man and a woman.37 One of its
essential requisites is the legal capacity of the contracting parties who must be
a male and a female.38 To grant the changes sought by petitioner will
substantially reconfigure and greatly alter the laws on marriage and family
relations. It will allow the union of a man with another man who has undergone
sex reassignment (a male-to-female post-operative transsexual). Second, there
are various laws which apply particularly to women such as the provisions of
the Labor Code on employment of women,39 certain felonies under the Revised
Penal Code40 and the presumption of survivorship in case of calamities under
Rule 131 of the Rules of Court,41 among others. These laws underscore the
public policy in relation to women which could be substantially affected if
petitioner’s petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall
decline to render judgment by reason of the silence, obscurity or insufficiency
of the law." However, it is not a license for courts to engage in judicial
legislation. The duty of the courts is to apply or interpret the law, not to make
or amend it.
In our system of government, it is for the legislature, should it choose to do so,
to determine what guidelines should govern the recognition of the effects of sex
reassignment. The need for legislative guidelines becomes particularly
important in this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name
and for correction or change of entries in the civil registry, where they may be
filed, what grounds may be invoked, what proof must be presented and what
procedures shall be observed. If the legislature intends to confer on a person
who has undergone sex reassignment the privilege to change his name and sex
to conform with his reassigned sex, it has to enact legislation laying down the
guidelines in turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when a
person may be recognized as having successfully changed his sex. However,
this Court has no authority to fashion a law on that matter, or on anything else.
The Court cannot enact a law where no law exists. It can only apply or interpret
the written word of its co-equal branch of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness,
contentment and [the] realization of their dreams." No argument about that. The
Court recognizes that there are people whose preferences and orientation do not
fit neatly into the commonly recognized parameters of social convention and
that, at least for them, life is indeed an ordeal. However, the remedies petitioner
seeks involve questions of public policy to be addressed solely by the
legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.