D. LAWYER-CLIENT PRIVILEGE
The relevant portions of the answer
A.C. No. 6711 July 3, 2007
MA. LUISA HADJULA, complainant,
vs.
ATTY. ROCELES F. MADIANDA, respondent.
DECISION
GARCIA, J.:
Under consideration is Resolution No. XVI-2004-472 of the
Board of Governors, Integrated Bar of the Philippines (IBP),
relative to the complaint for disbarment filed by herein
complainant Ma. Luisa Hadjula against respondent Atty.
Roceles F. Madianda.
The case started when, in an AFFIDAVIT-
COMPLAINT1 bearing date September 7, 2002 and filed with
the IBP Commission on Bar Discipline, complainant charged
Atty. Roceles F. Madianda with violation of Article 2092 of the
Revised Penal Code and Canon Nos. 15.02 and 21.02 of the
Code of Professional Responsibility.
In said affidavit-complaint, complainant alleged that she and
respondent used to be friends as they both worked at the
Bureau of Fire Protection (BFP) whereat respondent was the
Chief Legal Officer while she was the Chief Nurse of the
Medical, Dental and Nursing Services. Complainant claimed
that, sometime in 1998, she approached respondent for some
legal advice. Complainant further alleged that, in the course of
their conversation which was supposed to be kept confidential,
she disclosed personal secrets and produced copies of a
marriage contract, a birth certificate and a baptismal certificate,
only to be informed later by the respondent that she
(respondent) would refer the matter to a lawyer friend. It was
malicious, so complainant states, of respondent to have refused
handling her case only after she had already heard her secrets.
Continuing, complainant averred that her friendship with
respondent soured after her filing, in the later part of 2000, of
criminal and disciplinary actions against the latter. What, per
complainant's account, precipitated the filing was when
respondent, then a member of the BFP promotion board,
demanded a cellular phone in exchange for the complainant's
promotion.
According to complainant, respondent, in retaliation to the filing
of the aforesaid actions, filed a COUNTER COMPLAINT3 with
the Ombudsman charging her (complainant) with violation of
Section 3(a) of Republic Act No. 3019, 4 falsification of public
documents and immorality, the last two charges being based on
the disclosures complainant earlier made to respondent. And
also on the basis of the same disclosures, complainant further
stated, a disciplinary case was also instituted against her before
the Professional Regulation Commission.
Complainant seeks the suspension and/or disbarment of
respondent for the latter's act of disclosing personal secrets
and confidential information she revealed in the course of
seeking respondent's legal advice.
In an order dated October 2, 2002, the IBP Commission on Bar
Discipline required respondent to file her answer to the
complaint.
In her answer, styled as COUNTER-AFFIDAVIT,5 respondent
denied giving legal advice to the complainant and dismissed
any suggestion about the existence of a lawyer-client
relationship between them. Respondent also stated the
observation that the supposed confidential data and sensitive
documents adverted to are in fact matters of common
1
knowledge in the BFP.
read:
5. I specifically deny the allegation of F/SUPT. MA.
LUISA C. HADJULA in paragraph 4 of her
AFFIDAVIT-COMPLAINT for reason that she never
WAS MY CLIENT nor we ever had any LAWYER-
CLIENT RELATIONSHIP that ever existed ever since
and that never obtained any legal advice from me
regarding her PERSONAL PROBLEMS or
PERSONAL SECRETS. She likewise never delivered
to me legal documents much more told me some
confidential information or secrets. That is because I
never entertain LEGAL QUERIES or
CONSULTATION regarding PERSONAL MATTERS
since I know as a LAWYER of the Bureau of Fire
Protection that I am not allowed to privately practice
law and it might also result to CONFLICT OF
INTEREST. As a matter of fact, whenever there will
be PERSONAL MATTERS referred to me, I just
referred them to private law practitioners and never
entertain the same, NOR listen to their stories or
examine or accept any document.
9. I specifically deny the allegation of F/SUPT. MA.
LUISA C. HADJULA in paragraph 8 of her
AFFIDAVIT-COMPLAINT, the truth of the matter is
that her ILLICIT RELATIONSHIP and her illegal and
unlawful activities are known in the Bureau of Fire
Protection since she also filed CHILD SUPPORT case
against her lover where she has a child .
Moreover, the alleged DOCUMENTS she purportedly
have shown to me sometime in 1998, are all part of
public records .
Furthermore, F/SUPT. MA. LUISA C. HADJULA, is
filing the instant case just to get even with me or to
force me to settle and withdraw the CASES I FILED
AGAINST HER since she knows that she will certainly
be DISMISSED FROM SERVICE, REMOVED FROM
THE PRC ROLL and CRIMINALLY CONVICTED of
her ILLICIT, IMMORAL, ILLEGAL and UNLAWFUL
ACTS.
On October 7, 2004, the Investigating Commissioner of the IBP
Commission on Bar Discipline came out with aReport and
Recommendation, stating that the information related by
complainant to the respondent is "protected under the attorney-
client privilege communication." Prescinding from this postulate,
the Investigating Commissioner found the respondent to have
violated legal ethics when she "[revealed] information given to
her during a legal consultation," and accordingly recommended
that respondent be reprimanded therefor, thus:
WHEREFORE, premises considered, it is respectfully
recommended that respondent Atty. Roceles
Madianda be reprimanded for revealing the secrets of
the complainant.
On November 4, 2004, the IBP Board of Governors issued
Resolution No. XVI-2004-472 reading as follows:
RESOLVED to ADOPT and APPROVE, as it is
hereby ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner
of the above-entitled case, herein made part of this
Resolution as Annex "A"; and , finding the
recommendation fully supported by the evidence on
record and the applicable laws and rules, and
considering the actuation of revealing information
given to respondent during a legal consultation, Atty.
Roceles Madianda is hereby REPRIMANDED.
We AGREE with the recommendation and the premises holding
it together.
As it were, complainant went to respondent, a lawyer who
incidentally was also then a friend, to bare what she considered
personal secrets and sensitive documents for the purpose of
obtaining legal advice and assistance. The moment
complainant approached the then receptive respondent to seek
legal advice, a veritable lawyer-client relationship evolved
between the two. Such relationship imposes upon the lawyer
certain restrictions circumscribed by the ethics of the
profession. Among the burdens of the relationship is that which
enjoins the lawyer, respondent in this instance, to keep inviolate
confidential information acquired or revealed during legal
consultations. The fact that one is, at the end of the day, not
inclined to handle the client's case is hardly of consequence. Of
little moment, too, is the fact that no formal professional
engagement follows the consultation. Nor will it make any
difference that no contract whatsoever was executed by the
parties to memorialize the relationship. As we said in Burbe v.
Magulta,6 -
A lawyer-client relationship was established from the
very first moment complainant asked respondent for
legal advise regarding the former's business. To
constitute professional employment, it is not essential
that the client employed the attorney professionally on
any previous occasion.
It is not necessary that any retainer be paid,
promised, or charged; neither is it material that the
attorney consulted did not afterward handle the case
for which his service had been sought.
It a person, in respect to business affairs or troubles
of any kind, consults a lawyer with a view to obtaining
professional advice or assistance, and the attorney
voluntarily permits or acquiesces with the
consultation, then the professional employments is
established.
Likewise, a lawyer-client relationship exists
notwithstanding the close personal relationship
between the lawyer and the complainant or the non-
payment of the former's fees.
Dean Wigmore lists the essential factors to establish the
existence of the attorney-client privilege communication, viz:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3)
the communications relating to that purpose, (4) made
in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself
or by the legal advisor, (8) except the protection be
waived.7
With the view we take of this case, respondent indeed
breached his duty of preserving the confidence of a client. As
found by the IBP Investigating Commissioner, the documents
shown and the information revealed in confidence to the
respondent in the course of the legal consultation in question,
were used as bases in the criminal and administrative
complaints lodged against the complainant.
The purpose of the rule of confidentiality is actually to protect
the client from possible breach of confidence as a result of a
consultation with a lawyer.
The seriousness of the respondent's offense notwithstanding,
the Court feels that there is room for compassion, absent
compelling evidence that the respondent acted with ill-will.
Without meaning to condone the error of respondent's ways,
2
what at bottom is before the Court is two former friends
becoming bitter enemies and filing charges and counter-
charges against each other using whatever convenient tools
and data were readily available. Unfortunately, the personal
information respondent gathered from her conversation with
complainant became handy in her quest to even the score. At
the end of the day, it appears clear to us that respondent was
actuated by the urge to retaliate without perhaps realizing that,
in the process of giving vent to a negative sentiment, she was
violating the rule on confidentiality.
IN VIEW WHEREOF, respondent Atty. Roceles F. Madianda is
hereby REPRIMANDED and admonished to be circumspect in
her handling of information acquired as a result of a lawyer-
client relationship. She is alsoSTERNLY WARNED against a
repetition of the same or similar act complained of.
SO ORDERED.
SECOND DIVISION
[A.C. No. 5108. May 26, 2005]
ROSA F. MERCADO, complainant, vs. ATTY. JULITO D.
VITRIOLO, respondent.
DECISION
PUNO, J.:
Rosa F. Mercado filed the instant administrative complaint
against Atty. Julito D. Vitriolo, seeking his disbarment from the
practice of law. The complainant alleged that respondent
maliciously instituted a criminal case for falsification of public
document against her, a former client, based on confidential
information gained from their attorney-client relationship.
Let us first hearken to the facts.
Complainant is a Senior Education Program Specialist of
the Standards Development Division, Office of Programs and
Standards while respondent is a Deputy Executive Director IV
of the Commission on Higher Education (CHED). [1]
Complainants husband filed Civil Case No. 40537 entitled
Ruben G. Mercado v. Rosa C. Francisco, for annulment of their
marriage with the Regional Trial Court (RTC) of Pasig City. This
annulment case had been dismissed by the trial court, and the
dismissal became final and executory on July 15, 1992. [2]
In August 1992, Atty. Anastacio P. de Leon, counsel of
complainant, died. On February 7, 1994, respondent entered
his appearance before the trial court as collaborating counsel
for complainant.[3]
On March 16, 1994, respondent filed his Notice of
Substitution of Counsel,[4] informing the RTC of Pasig City that
he has been appointed as counsel for the complainant, in
substitution of Atty. de Leon.
It also appears that on April 13, 1999, respondent filed a
criminal action against complainant before the Office of the City
Prosecutor, Pasig City, entitled Atty. Julito Vitriolo, et al. v.
Rose Dela Cruz F. Mercado, and docketed as I.S. No. PSG 99-
9823, for violation of Articles 171 and 172 (falsification of public
document) of the Revised Penal Code.[5] Respondent alleged
that complainant made false entries in the Certificates of Live
Birth of her children, Angelica and Katelyn Anne. More
specifically, complainant allegedly indicated in said Certificates
of Live Birth that she is married to a certain Ferdinand
Fernandez, and that their marriage was solemnized on April 11,
1979, when in truth, she is legally married to Ruben G.
Mercado and their marriage took place on April 11, 1978.
Complainant denied the accusations of respondent
against her. She denied using any other name than Rosa F.
Mercado. She also insisted that she has gotten married only
once, on April 11, 1978, to Ruben G. Mercado.
In addition, complainant Mercado cited other charges
against respondent that are pending before or decided upon by
other tribunals (1) libel suit before the Office of the City
Prosecutor, Pasig City;[6] (2) administrative case for dishonesty,
grave misconduct, conduct prejudicial to the best interest of the
service, pursuit of private business, vocation or profession
without the permission required by Civil Service rules and
regulations, and violations of the Anti-Graft and Corrupt
Practices Act, before the then Presidential Commission Against
Graft and Corruption;[7] (3) complaint for dishonesty, grave
misconduct, and conduct prejudicial to the best interest of the
service before the Office of the Ombudsman, where he was
found guilty of misconduct and meted out the penalty of one
month suspension without pay;[8] and, (4) the Information for
violation of Section 7(b)(2) of Republic Act No. 6713, as
amended, otherwise known as the Code of Conduct and Ethical
Standards for Public Officials and Employees before the
Sandiganbayan.[9]
Complainant Mercado alleged that said criminal complaint
for falsification of public document (I.S. No. PSG 99-9823)
disclosed confidential facts and information relating to the civil
case for annulment, then handled by respondent Vitriolo as her
counsel. This prompted complainant Mercado to bring this
action against respondent. She claims that, in filing the criminal
case for falsification, respondent is guilty of breaching their
privileged and confidential lawyer-client relationship, and should
be disbarred.
Respondent filed his Comment/Motion to Dismiss on
November 3, 1999 where he alleged that the complaint for
disbarment was all hearsay, misleading and irrelevant because
all the allegations leveled against him are subject of separate
fact-finding bodies. Respondent claimed that the pending cases
against him are not grounds for disbarment, and that he is
presumed to be innocent until proven otherwise.[10] He also
states that the decision of the Ombudsman finding him guilty of
misconduct and imposing upon him the penalty of suspension
for one month without pay is on appeal with the Court of
Appeals. He adds that he was found guilty, only of simple
misconduct, which he committed in good faith. [11]
In addition, respondent maintains that his filing of the
criminal complaint for falsification of public documents against
complainant does not violate the rule on privileged
communication between attorney and client because the bases
of the falsification case are two certificates of live birth which
are public documents and in no way connected with the
confidence taken during the engagement of respondent as
counsel. According to respondent, the complainant confided to
him as then counsel only matters of facts relating to the
annulment case. Nothing was said about the alleged
falsification of the entries in the birth certificates of her two
daughters. The birth certificates are filed in the Records
Division of CHED and are accessible to anyone.[12]
In a Resolution dated February 9, 2000, this Court
referred the administrative case to the Integrated Bar of the
Philippines (IBP) for investigation, report and
recommendation.[13]
The IBP Commission on Bar Discipline set two dates for
hearing but complainant failed to appear in both. Investigating
Commissioner Rosalina R. Datiles thus granted respondents
motion to file his memorandum, and the case was submitted for
resolution based on the pleadings submitted by the parties. [14]
On June 21, 2003, the IBP Board of Governors approved
the report of investigating commissioner Datiles, finding the
respondent guilty of violating the rule on privileged
communication between attorney and client, and
3
recommending his suspension from the practice of law for one
(1) year.
On August 6, 2003, complainant, upon receiving a copy of
the IBP report and recommendation, wrote Chief Justice Hilario
Davide, Jr., a letter of desistance. She stated that after the
passage of so many years, she has now found forgiveness for
those who have wronged her.
At the outset, we stress that we shall not inquire into the
merits of the various criminal and administrative cases filed
against respondent. It is the duty of the tribunals where these
cases are pending to determine the guilt or innocence of the
respondent.
We also emphasize that the Court is not bound by any
withdrawal of the complaint or desistance by the complainant.
The letter of complainant to the Chief Justice imparting
forgiveness upon respondent is inconsequential in disbarment
proceedings.
We now resolve whether respondent violated the rule on
privileged communication between attorney and client when he
filed a criminal case for falsification of public document against
his former client.
A brief discussion of the nature of the relationship
between attorney and client and the rule on attorney-client
privilege that is designed to protect such relation is in order.
In engaging the services of an attorney, the client reposes
on him special powers of trust and confidence. Their
relationship is strictly personal and highly confidential and
fiduciary. The relation is of such delicate, exacting and
confidential nature that is required by necessity and public
interest.[15] Only by such confidentiality and protection will a
person be encouraged to repose his confidence in an attorney.
The hypothesis is that abstinence from seeking legal advice in
a good cause is an evil which is fatal to the administration of
justice.[16] Thus, the preservation and protection of that relation
will encourage a client to entrust his legal problems to an
attorney, which is of paramount importance to the
administration of justice.[17] One rule adopted to serve this
purpose is the attorney-client privilege: an attorney is to keep
inviolate his clients secrets or confidence and not to abuse
them.[18] Thus, the duty of a lawyer to preserve his clients
secrets and confidence outlasts the termination of the attorney-
client relationship,[19] and continues even after the clients
death.[20] It is the glory of the legal profession that its fidelity to
its client can be depended on, and that a man may safely go to
a lawyer and converse with him upon his rights or supposed
rights in any litigation with absolute assurance that the lawyers
tongue is tied from ever disclosing it.[21] With full disclosure of
the facts of the case by the client to his attorney, adequate legal
representation will result in the ascertainment and enforcement
of rights or the prosecution or defense of the clients cause.
Now, we go to the rule on attorney-client privilege. Dean
Wigmore cites the factors essential to establish the existence of
the privilege, viz:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently
protected (7) from disclosure by himself or by the legal advisor,
(8) except the protection be waived.[22]
In fine, the factors are as follows:
(1) There exists an attorney-client relationship, or a
prospective attorney-client relationship, and it is by reason of
this relationship that the client made the communication.
Matters disclosed by a prospective client to a lawyer are
protected by the rule on privileged communication even if the
prospective client does not thereafter retain the lawyer or the
latter declines the employment.[23] The reason for this is to
make the prospective client free to discuss whatever he wishes
with the lawyer without fear that what he tells the lawyer will be Indeed, complainant failed to attend the hearings at the
divulged or used against him, and for the lawyer to be equally IBP. Without any testimony from the complainant as to the
free to obtain information from the prospective client. [24] specific confidential information allegedly divulged by
respondent without her consent, it is difficult, if not impossible to
On the other hand, a communication from a (prospective) determine if there was any violation of the rule on privileged
client to a lawyer for some purpose other than on account of the communication. Such confidential information is a crucial link in
(prospective) attorney-client relation is not privileged. Instructive establishing a breach of the rule on privileged communication
is the case of Pfleider v. Palanca,[25] where the client and his between attorney and client. It is not enough to merely assert
wife leased to their attorney a 1,328-hectare agricultural land the attorney-client privilege.[37] The burden of proving that the
for a period of ten years. In their contract, the parties agreed, privilege applies is placed upon the party asserting the
among others, that a specified portion of the lease rentals privilege.[38]
would be paid to the client-lessors, and the remainder would be
delivered by counsel-lessee to client's listed creditors. The IN VIEW WHEREOF, the complaint against respondent
client alleged that the list of creditors which he had Atty. Julito D. Vitriolo is hereby DISMISSED for lack of merit.
confidentially supplied counsel for the purpose of carrying out
the terms of payment contained in the lease contract was SO ORDERED.
disclosed by counsel, in violation of their lawyer-client relation,
Austria-Martinez, Callejo, Sr., and Chico-Nazario,
to parties whose interests are adverse to those of the client. As
JJ., concur.
the client himself, however, states, in the execution of the terms
Tinga, J., out of the country.
of the aforesaid lease contract between the parties, he
furnished counsel with the confidential list of his creditors. We
ruled that this indicates that client delivered the list of his
creditors to counsel not because of the professional relation
then existing between them, but on account of the lease
agreement. We then held that a violation of the confidence that [Syllabus]
accompanied the delivery of that list would partake more of a
private and civil wrong than of a breach of the fidelity owing EN BANC
from a lawyer to his client.
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise a [G.R. No. 105938. September 20, 1996]
presumption of confidentiality.[26] The client must intend the
communication to be confidential.[27]
A confidential communication refers to information
transmitted by voluntary act of disclosure between attorney and TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO
client in confidence and by means which, so far as the client is V. CRUZ, JOSE C. CONCEPCION, ROGELIO A.
aware, discloses the information to no third person other than VINLUAN, VICTOR P. LAZATIN, and EDUARDO U.
one reasonably necessary for the transmission of the ESCUETA, petitioners, vs. THE HONORABLE
information or the accomplishment of the purpose for which it SANDIGANBAYAN, First Division, REPUBLIC OF
was given.[28] THE PHILIPPINES, ACTING THROUGH THE
PRESIDENTIAL COMMISSION ON GOOD
Our jurisprudence on the matter rests on quiescent
GOVERNMENT, and RAUL S. ROCO, respondents.
ground. Thus, a compromise agreement prepared by a lawyer
pursuant to the instruction of his client and delivered to the
opposing party,[29] an offer and counter-offer for
settlement,[30] or a document given by a client to his counsel not
in his professional capacity,[31] are not privileged [G.R. No. 108113. September 20, 1996]
communications, the element of confidentiality not being
present.[32]
(3) The legal advice must be sought from the attorney in
his professional capacity.[33] PARAJA G. HAYUDINI, petitioner, vs. THE
SANDIGANBAYAN and THE REPUBLIC OF THE
The communication made by a client to his attorney must PHILIPPINES, respondents.
not be intended for mere information, but for the purpose of
seeking legal advice from his attorney as to his rights or
obligations. The communication must have been transmitted by DECISION
a client to his attorney for the purpose of seeking legal
KAPUNAN, J.:
advice.[34]
If the client seeks an accounting service, [35] or business or These cases touch the very cornerstone of every State's
personal assistance,[36] and not legal advice, the privilege does judicial system, upon which the workings of the contentious and
not attach to a communication disclosed for such purpose. adversarial system in the Philippine legal process are based -
the sanctity of fiduciary duty in the client-lawyer
Applying all these rules to the case at bar, we hold that
relationship. The fiduciary duty of a counsel and advocate is
the evidence on record fails to substantiate complainants
also what makes the law profession a unique position of trust
allegations. We note that complainant did not even specify the
and confidence, which distinguishes it from any other calling. In
alleged communication in confidence disclosed by respondent.
this instance, we have no recourse but to uphold and
All her claims were couched in general terms and lacked
strengthen the mantle of protection accorded to the
specificity. She contends that respondent violated the rule on
confidentiality that proceeds from the performance of the
privileged communication when he instituted a criminal action
lawyer's duty to his client.
against her for falsification of public documents because the
criminal complaint disclosed facts relating to the civil case for The facts of the case are undisputed.
annulment then handled by respondent. She did not, however,
spell out these facts which will determine the merit of her The matters raised herein are an offshoot of the institution
complaint. The Court cannot be involved in a guessing game as of the Complaint on July 31, 1987 before the Sandiganbayan by
to the existence of facts which the complainant must prove. the Republic of the Philippines, through the Presidential
Commission on Good Government against Eduardo M.

4
Cojuangco, Jr., as one of the principal defendants, for the
recovery of alleged ill-gotten wealth, which includes shares of
stocks in the named corporations in PCGG Case No. 33 (Civil
Case No. 0033), entitled "Republic of the Philippines versus
Eduardo Cojuangco, et al."[1]
Among the defendants named in the case are herein
petitioners Teodoro Regala, Edgardo J. Angara, Avelino V.
Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P.
Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and
herein private respondent Raul S. Roco, who all were then
partners of the law firm Angara, Abello, Concepcion, Regala
and Cruz Law Offices (hereinafter referred to as the ACCRA
Law Firm). ACCRA Law Firm performed legal services for its
clients, which included, among others, the organization and
acquisition of business associations and/or organizations, with
the correlative and incidental services where its members acted
as incorporators, or simply, as stockholders. More specifically,
in the performance of these services, the members of the law
firm delivered to its client documents which substantiate the
client's equity holdings, i.e., stock certificates endorsed in blank
representing the shares registered in the client's name, and a
blank deed of trust or assignment covering said shares. In the
course of their dealings with their clients, the members of the
law firm acquire information relative to the assets of clients as
well as their personal and business circumstances. As
members of the ACCRA Law Firm, petitioners and private
respondent Raul Roco admit that they assisted in the
organization and acquisition of the companies included in Civil
Case No. 0033, and in keeping with the office
practice, ACCRA lawyers acted as nominees-stockholders of
the said corporations involved in sequestration proceedings.[2]
On August 20, 1991, respondent Presidential
Commission on Good Government (hereinafter referred to as
respondent PCGG) filed a "Motion to Admit Third Amended
Complaint" and "Third Amended Complaint" which
excluded private respondent Raul S. Roco from the complaint
in PCGG Case No. 33 as party-defendant.[3] Respondent
PCGG based its exclusion of private respondent Roco as party-
defendant on his undertaking that he will reveal the identity of
the principal/s for whom he acted as nominee/stockholder in the
companies involved in PCGG Case No. 33.[4]
Petitioners were included in the Third Amended
Complaint on the strength of the following allegations:
14. Defendants Eduardo Cojuangco, Jr., Edgardo J.
Angara, Jose C. Concepcion, Teodoro Regala,
Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U.
Escueta, Paraja G. Hayudini and Raul Roco of
the Angara Concepcion Cruz Regala and Abello
law offices (ACCRA) plotted, devised,
schemed. conspired and confederated with
each other in setting up, through the use of the
coconut levy funds, the financial and corporate
framework and structures that led to the
establishment of UCPB, UNICOM, COCOLIFE,
COCOMARK, CIC, and more than twenty other
coconut levy funded corporations, including the
acquisition of San Miguel Corporation shares
and its institutionalization through presidential
directives of the coconut monopoly. Through
insidious means and machinations, ACCRA,
being the wholly-owned investment arm,
ACCRA Investments Corporation, became the
holder of approximately fifteen million shares
representing roughly 3.3% of the total
outstanding capital stock of UCPB as of 31
March 1987. This ranks ACCRA Investments
Corporation number 44 among the top 100
biggest stockholders of UCPB which has
approximately 1,400,000 shareholders. On the
other hand, corporate books show the name
Edgardo J. Angara as holding
approximately 3,744 shares as of February,
1984.[5]
5
In their answer to the Expanded Amended Complaint,
petitioners ACCRA lawyers alleged that:
4.4. Defendants-ACCRA lawyers participation in the acts with
which their co-defendants are charged, was in furtherance of
legitimate lawyering.
4.4.1. In the course of rendering professional and legal services
to clients, defendants-ACCRA lawyers, Jose C. Concepcion,
Teodoro D. Regala, Rogelio A. Vinluan and Eduardo U.
Escueta, became holders of shares of stock in the corporations
listed under their respective names in Annex A of the expanded
Amended Complaint as incorporating or acquiring stockholders
only and, as such, they do not claim any proprietary interest in
the said shares of stock.
4.5. Defendant ACCRA-lawyer Avelino V. Cruz was one of the
incorporators in 1976 of Mermaid Marketing Corporation, which
was organized for legitimate business purposes not related to
the allegations of the expanded Amended Complaint. However,
he has long ago transferred any material interest therein and
therefore denies that the shares appearing in his name in
Annex A of the expanded Amended Complaint are his assets. [6]
Petitioner Paraja Hayudini, who had separated
from ACCRA law firm, filed a separate answer denying the
allegations in the complaint implicating him in the alleged ill-
gotten wealth.[7]
Petitioners ACCRA lawyers subsequently filed their
"COMMENT AND/OR OPPOSITION" dated October 8, 1991
with Counter-Motion that respondent PCGG similarly grant the
same treatment to them (exclusion as parties-defendants) as
accorded private respondent Roco.[8] The Counter-Motion for
dropping petitioners from the complaint was duly set for hearing
onOctober 18, 1991 in accordance with the requirements of
Rule 15 of the Rules of Court.
In its "Comment," respondent PCGG set the following
conditions precedent for the exclusion of petitioners,
namely: (a) the disclosure of the identity of its clients; (b)
submission of documents substantiating the lawyer-client
relationship; and (c) the submission of the deeds of
assignments petitioners executed in favor of its clients covering
their respective shareholdings.[9]
Consequently, respondent PCGG presented supposed
proof to substantiate compliance by private respondent Roco of
the conditions precedent to warrant the latter's exclusion as
party-defendant in PCGG Case No. 33, to wit: (a) Letter to
respondent PCGG of the counsel of respondent Roco dated
May 24, 1989 reiterating a previous request for reinvestigation
by the PCGG in PCGG Case No. 33; (b) Affidavit dated March
8, 1989 executed by private respondent Roco as Attachment to
the letter aforestated in (a); and (c) Letter of the Roco, Bunag,
and Kapunan Law Offices dated September 21, 1988 to the
respondent PCGG in behalf of private respondent Roco
originally requesting the reinvestigation and/or re-examination
of the evidence of the PCGG against Roco in its Complaint in
PCGG Case No. 33.[10]
It is noteworthy that during said proceedings, private
respondent Roco did not refute petitioners' contention that he
did actually not reveal the identity of the client involved in
PCGG Case No. 33, nor had he undertaken to reveal the
identity of the client for whom he acted as nominee-
stockholder.[11]
On March 18, 1992, respondent Sandiganbayan
promulgated the Resolution, herein questioned, denying the
exclusion of petitioners in PCGG Case No. 33, for their refusal
to comply with the conditions required by respondent PCGG. It
held:
x x x.
ACCRA lawyers may take the heroic stance of not revealing the
identity of the client for whom they have acted, i.e. their
principal, and that will be their choice. But until they do identify
their clients, considerations of whether or not the
privilege claimed by the ACCRA lawyers exists cannot even
begin to be debated. The ACCRA lawyers cannot excuse
themselves from the consequences of their acts until they have
begun to establish the basis for recognizing the privilege; the
existence and identity of the client.
This is what appears to be the cause for which they have been
impleaded by the PCGG as defendants herein.
5. The PCGG is satisfied that defendant Roco has
demonstrated his agency and that Roco has apparently
identified his principal, which revelation could show the lack of
cause against him. This in turn has allowed the PCGG to
exercise its power both under the rules of Agency and under
Section 5 of E.O. No. 14-A in relation to the Supreme Court's
ruling in Republic v. Sandiganbayan (173 SCRA 72).
The PCGG has apparently offered to the ACCRA lawyers the
same conditions availed of by Roco; full disclosure in exchange
for exclusion from these proceedings (par. 7, PCGG's
COMMENT dated November 4, 1991). The ACCRA lawyers
have preferred not to make the disclosures required by the
PCGG.
The ACCRA lawyers cannot, therefore, begrudge the PCGG for
keeping them as party defendants. In the same vein, they
cannot compel the PCGG to be accorded the same treatment
accorded to Roco.
Neither can this Court.
WHEREFORE, the Counter Motion dated October 8, 1991 filed
by the ACCRA lawyers and joined in by Atty. Paraja G.
Hayudini for the same treatment by the PCGG as accorded to
Raul S. Roco is DENIED for lack of merit. [12]
ACCRA lawyers moved for a reconsideration of the above
resolution but the same was denied by the respondent
Sandiganbayan. Hence, the ACCRA lawyers filed the petition
forcertiorari, docketed as G.R. No. 105938, invoking the
following grounds:
I
The Honorable Sandiganbayan gravely abused its discretion in
subjecting petitioners ACCRA lawyers who undisputably acted
as lawyers in serving as nominee-stockholders, to the strict
application of the law of agency.
II
The Honorable Sandiganbayan committed grave abuse of
discretion in not considering petitioners ACCRA lawyers and
Mr. Roco as similarly situated and, therefore, deserving of
equal treatment.
1. There is absolutely no evidence that Mr. Roco
had revealed, or had undertaken to reveal, the
identities of the client(s) for whom he acted as
nominee-stockholder.
2. Even assuming that Mr. Roco had revealed, or
had undertaken to reveal, the identities of the
client(s), the disclosure does not constitute a
substantial distinction as would make the
classification reasonable under the equal
protection clause.
6
3. Respondent Sandiganbayan sanctioned
favoritism and undue preference in favor of Mr.
Roco in violation of the equal protection clause.
III
The Honorable Sandiganbayan committed grave abuse of
discretion in not holding that, under the facts of this case, the
attorney-client privilege prohibits petitioners ACCRA lawyers
from revealing the identity of their client(s) and the other
information requested by the PCGG.
1. Under the peculiar facts of this case, the
attorney-client privilege includes the identity of
the client(s).
2. The factual disclosures required by the PCGG
are not limited to the identity of petitioners
ACCRA lawyers' alleged client(s) but extend to
other privileged matters.
IV
The Honorable Sandiganbayan committed grave abuse of
discretion in not requiring that the dropping of party-defendants
by the PCGG must be based on reasonable and just grounds
and with due consideration to the constitutional right of
petitioners ACCRA lawyers to the equal protection of the law.
Petitioner Paraja G. Hayudini, likewise, filed his own
motion for reconsideration of the March 18, 1991 resolution
which was denied by respondent Sandiganbayan. Thus, he
filed a separate petition for certiorari, docketed as G.R. No.
108113, assailing respondent Sandiganbayan's resolution on
essentially the same grounds averred by petitioners in G.R. No.
105938.
Petitioners contend that the exclusion of respondent Roco
as party-defendant in PCGG Case No. 33 grants him a
favorable treatment, on the pretext of his alleged undertaking to
divulge the identity of his client, giving him an advantage over
them who are in the same footing as partners in the ACCRA
law firm. Petitioners further argue that even granting that such
an undertaking has been assumed by private respondent Roco,
they are prohibited from revealing the identity of their principal
under their sworn mandate and fiduciary duty as lawyers to
uphold at all times the confidentiality of information obtained
during such lawyer-client relationship.
Respondent PCGG, through its counsel, refutes
petitioners' contention, alleging that the revelation of the identity
of the client is not within the ambit of the lawyer-client
confidentiality privilege, nor are the documents it required
(deeds of assignment) protected, because they are evidence of
nominee status.[13]
In his comment, respondent Roco asseverates that
respondent PCGG acted correctly in excluding him as party-
defendant because he "(Roco) has not filed an Answer. PCGG
had therefore the right to dismiss Civil Case No. 0033 as to
Roco `without an order of court by filing a notice of
dismissal,'"[14] and he has undertaken to identify his principal. [15]
Petitioners' contentions are impressed with merit.
I
It is quite apparent that petitioners were impleaded by the
PCGG as co-defendants to force them to disclose the identity of
their clients. Clearly, respondent PCGG is not after petitioners
but the bigger fish as they say in street parlance. This ploy is
quite clear from the PCGGs willingness to cut a deal with
petitioners -- the names of their clients in exchange for
exclusion from the complaint. The statement of the
Sandiganbayan in its questioned resolution dated March 18,
1992 is explicit:
ACCRA lawyers may take the heroic stance of not revealing the
identity of the client for whom they have acted, i.e., their
principal, and that will be their choice. But until they do identify
their clients, considerations of whether or not the privilege
claimed by the ACCRA lawyers exists cannot even begin to be
debated. The ACCRA lawyers cannot excuse themselves from
the consequences of their acts until they have begun to
establish the basis for recognizing the privilege; the existence
and identity of the client.
This is what appears to be the cause for which they have been
impleaded by the PCGG as defendants herein. (Underscoring
ours)
In a closely related case, Civil Case No. 0110 of the
Sandiganbayan, Third Division, entitled Primavera Farms,
Inc., et al. vs. Presidential Commission on Good Government
respondent PCGG, through counsel Mario Ongkiko, manifested
at the hearing on December 5, 1991 that the PCGG wanted to
establish through the ACCRA that their so called client is Mr.
Eduardo Cojuangco; that it was Mr. Eduardo Cojuangco who
furnished all the monies to those subscription payments in
corporations included in Annex A of the Third Amended
Complaint; that the ACCRA lawyers executed deeds of trust
and deeds of assignment, some in the name of particular
persons, some in blank.
We quote Atty. Ongkiko:
ATTY. ONGKIKO:
With the permission of this Hon. Court. I propose to establish
through these ACCRA lawyers that, one, their so-called client is
Mr. Eduardo Cojuangco. Second, it was Mr. Eduardo
Cojuangco who furnished all the monies to these subscription
payments of these corporations who are now the petitioners in
this case. Third, that these lawyers executed deeds of trust,
some in the name of a particular person, some in blank. Now,
these blank deeds are important to our claim that some of the
shares are actually being held by the nominees for the late
President Marcos. Fourth, they also executed deeds of
assignment and some of these assignments have also blank
assignees. Again, this is important to our claim that some of the
shares are for Mr. Cojuangco and some are for Mr.
Marcos. Fifth, that most of these corporations are really just
paper corporations. Why do we say that? One: There are no
really fixed sets of officers, no fixed sets of directors at the time
of incorporation and even up to 1986, which is the crucial
year. And not only that, they have no permits from the
municipal authorities in Makati. Next, actually all their
addresses now are care of Villareal Law Office. They really
have no address on records. These are some of the principal
things that we would ask of these nominees stockholders, as
they called themselves.[16]
It would seem that petitioners are merely standing in for
their clients as defendants in the complaint. Petitioners are
being prosecuted solely on the basis of activities and services
performed in the course of their duties as lawyers. Quite
obviously, petitioners inclusion as co-defendants in the
complaint is merely being used as leverage to compel them to
name their clients and consequently to enable the PCGG to nail
these clients. Such being the case, respondent PCGG has no
valid cause of action as against petitioners and should exclude
them from the Third Amended Complaint.
II
The nature of lawyer-client relationship is premised on the
Roman Law concepts of locatio conductio operarum (contract
of lease of services) where one person lets his services and
another hires them without reference to the object of which the
services are to be performed, wherein lawyers' services may be
compensated by honorarium or for
hire,[17] and mandato(contract of agency) wherein a friend on
whom reliance could be placed makes a contract in his name,
7
but gives up all that he gained by the contract to the person
who requested him.[18]But the lawyer-client relationship is more
than that of the principal-agent and lessor-lessee.
In modern day perception of the lawyer-client relationship,
an attorney is more than a mere agent or servant, because he
possesses special powers of trust and confidence reposed on
him by his client.[19] A lawyer is also as independent as the
judge of the court, thus his powers are entirely different from
and superior to those of an ordinary agent. [20] Moreover, an
attorney also occupies what may be considered as a "quasi-
judicial office" since he is in fact an officer of the Court [21] and
exercises his judgment in the choice of courses of action to be
taken favorable to his client.
Thus, in the creation of lawyer-client relationship, there
are rules, ethical conduct and duties that breathe life into it,
among those, the fiduciary duty to his client which is of a very
delicate, exacting and confidential character, requiring a very
high degree of fidelity and good faith, [22] that is required by
reason of necessity and public interest [23] based on the
hypothesis that abstinence from seeking legal advice in a good
cause is an evil which is fatal to the administration of justice. [24]
It is also the strict sense of fidelity of a lawyer to his client
that distinguishes him from any other professional in
society. This conception is entrenched and embodies centuries
of established and stable tradition.[25] In Stockton v. Ford,[26] the
U.S. Supreme Court held:
There are few of the business relations of life involving a higher
trust and confidence than that of attorney and client, or
generally speaking, one more honorably and faithfully
discharged; few more anxiously guarded by the law, or
governed by the sterner principles of morality and justice; and it
is the duty of the court to administer them in a corresponding
spirit, and to be watchful and industrious, to see that confidence
thus reposed shall not be used to the detriment or prejudice of
the rights of the party bestowing it.[27]
In our jurisdiction, this privilege takes off from the old
Code of Civil Procedure enacted by the Philippine Commission
on August 7, 1901. Section 383 of the Code specifically forbids
counsel, without authority of his client to reveal any
communication made by the client to him or his advice given
thereon in the course of professional employment.[28] Passed
on into various provisions of the Rules of Court, the attorney-
client privilege, as currently worded provides:
Sec. 24. Disqualification by reason of privileged
communication. - The following persons cannot testify as to
matters learned in confidence in the following cases:
xxx
An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him,
or his advice given thereon in the course of, or with a view to,
professional employment, can an attorneys secretary,
stenographer, or clerk be examined, without the consent of the
client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity. [29]
Further, Rule 138 of the Rules of Court states:
Sec. 20. It is the duty of an attorney:
(e) to maintain inviolate the confidence, and at every peril to
himself, to preserve the secrets of his client, and to accept no
compensation in connection with his clients business except
from him or with his knowledge and approval.
This duty is explicitly mandated in Canon 17 of the Code
of Professional Responsibility which provides that:
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 15 of the Canons of Professional Ethics also
demands a lawyer's fidelity to client:
The lawyer owes "entire devotion to the interest of the client,
warm zeal in the maintenance and defense of his rights and the
exertion of his utmost learning and ability," to the end that
nothing be taken or be withheld from him, save by the rules of
law, legally applied. No fear of judicial disfavor or public
popularity should restrain him from the full discharge of his
duty. In the judicial forum the client is entitled to the benefit of
any and every remedy and defense that is authorized by the
law of the land, and he may expect his lawyer to assert every
such remedy or defense. But it is steadfastly to be borne in
mind that the great trust of the lawyer is to be performed within
and not without the bounds of the law. The office of attorney
does not permit, much less does it demand of him for any
client, violation of law or any manner of fraud or chicanery. He
must obey his own conscience and not that of his client.
Considerations favoring confidentiality in lawyer-client
relationships are many and serve several constitutional and
policy concerns. In the constitutional sphere, the privilege gives
flesh to one of the most sacrosanct rights available to the
accused, the right to counsel. If a client were made to choose
between legal representation without effective communication
and disclosure and legal representation with all his secrets
revealed then he might be compelled, in some instances, to
either opt to stay away from the judicial system or to lose the
right to counsel. If the price of disclosure is too high, or if it
amounts to self incrimination, then the flow of information would
be curtailed thereby rendering the right practically
nugatory. The threat this represents against another sacrosanct
individual right, the right to be presumed innocent is at once
self-evident.
Encouraging full disclosure to a lawyer by one seeking
legal services opens the door to a whole spectrum of legal
options which would otherwise be circumscribed by limited
information engendered by a fear of disclosure. An effective
lawyer-client relationship is largely dependent upon the degree
of confidence which exists between lawyer and client which in
turn requires a situation which encourages a dynamic and
fruitful exchange and flow of information. It necessarily follows
that in order to attain effective representation, the lawyer must
invoke the privilege not as a matter of option but as a matter of
duty and professional responsibility.
The question now arises whether or not this duty may be
asserted in refusing to disclose the name of petitioners' client(s)
in the case at bar. Under the facts and circumstances obtaining
in the instant case, the answer must be in the affirmative.
As a matter of public policy, a clients identity should not
be shrouded in mystery.[30] Under this premise, the general rule
in our jurisdiction as well as in the United States is that a lawyer
may not invoke the privilege and refuse to divulge the name or
identity of his client.[31]
The reasons advanced for the general rule are well
established.
First, the court has a right to know that the client whose
privileged information is sought to be protected is flesh and
blood.
Second, the privilege begins to exist only after the
attorney-client relationship has been established. The attorney-
client privilege does not attach until there is a client.
Third, the privilege generally pertains to the subject
matter of the relationship.
Finally, due process considerations require that the
opposing party should, as a general rule, know his adversary. A
party suing or sued is entitled to know who his opponent
8
is.[32] He cannot be obliged to grope in the dark against
unknown forces.[33]
Notwithstanding these considerations, the general rule is
however qualified by some important exceptions.
1) Client identity is privileged where a strong
probability exists that revealing the clients name
would implicate that client in the very activity for
which he sought the lawyers advice.
In Ex-Parte Enzor,[34] a state supreme court reversed a
lower court order requiring a lawyer to divulge the name of her
client on the ground that the subject matter of the relationship
was so closely related to the issue of the clients identity that the
privilege actually attached to both. In Enzor, the unidentified
client, an election official, informed his attorney in confidence
that he had been offered a bribe to violate election laws or that
he had accepted a bribe to that end. In her testimony, the
attorney revealed that she had advised her client to count the
votes correctly, but averred that she could not remember
whether her client had been, in fact, bribed. The lawyer was
cited for contempt for her refusal to reveal his clients identity
before a grand jury. Reversing the lower courts contempt
orders, the state supreme court held that under the
circumstances of the case, and under the exceptions described
above, even the name of the client was privileged.
U.S. v. Hodge and Zweig,[35] involved the same exception,
i.e. that client identity is privileged in those instances where a
strong probability exists that the disclosure of the client's
identity would implicate the client in the very criminal activity for
which the lawyers legal advice was obtained.
The Hodge case involved federal grand jury proceedings
inquiring into the activities of the Sandino Gang, a gang
involved in the illegal importation of drugs in the United
States. The respondents, law partners, represented key
witnesses and suspects including the leader of the gang, Joe
Sandino.
In connection with a tax investigation in November of
1973, the IRS issued summons to Hodge and Zweig, requiring
them to produce documents and information regarding payment
received by Sandino on behalf of any other person, and vice
versa. The lawyers refused to divulge the names. The Ninth
Circuit of the United States Court of Appeals, upholding non-
disclosure under the facts and circumstances of the case, held:
A clients identity and the nature of that clients fee
arrangements may be privileged where the person invoking the
privilege can show that a strong probability exists that
disclosure of such information would implicate that client in the
very criminal activity for which legal advice was sought Baird v.
Koerner, 279 F.2d at 680. While in Baird Owe enunciated this
rule as a matter of California law, the rule also reflects federal
law. Appellants contend that the Baird exception applies to this
case.
The Baird exception is entirely consonant with the
principal policy behind the attorney-client privilege. In order to
promote freedom of consultation of legal advisors by clients, the
apprehension of compelled disclosure from the legal advisors
must be removed; hence, the law must prohibit such disclosure
except on the clients consent. 8 J. Wigmore, supra sec. 2291,
at 545. In furtherance of this policy, the clients identity and the
nature of his fee arrangements are, in exceptional cases,
protected as confidential communications. [36]
2) Where disclosure would open the client to civil
liability, his identity is privileged. For instance,
the peculiar facts and circumstances
of Neugass v. Terminal Cab
Corporation,[37] prompted the New York
Supreme Court to allow
a lawyers claim to the effect that he could not
reveal the name of his client because this would
expose the latter to civil litigation.
 In the said case, Neugass, the plaintiff, suffered injury
when the taxicab she was riding, owned by respondent
corporation, collided with a second taxicab, whose owner was
unknown.Plaintiff brought action both against defendant
corporation and the owner of the second cab, identified in the
information only as John Doe. It turned out that when the
attorney of defendant corporation appeared on preliminary
examination, the fact was somehow revealed that the lawyer
came to know the name of the owner of the second cab when a
man, a client of the insurance company, prior to the institution
of legal action, came to him and reported that he was involved
in a car accident. It was apparent under the circumstances that
the man was the owner of the second cab. The state supreme
court held that the reports were clearly made to the lawyer in
his professional capacity. The court said:
That his employment came about through the fact that the
insurance company had hired him to defend its policyholders
seems immaterial. The attorney in such cases is clearly the
attorney for the policyholder when the policyholder goes to him
to report an occurrence contemplating that it would be used in
an action or claim against him.[38]
x x x xxx xxx.
All communications made by a client to his counsel, for
the purpose of professional advice or assistance, are privileged,
whether they relate to a suit pending or contemplated, or to any
other matter proper for such advice or aid; x x x And whenever
the communication made, relates to a matter so connected with
the employment as attorney or counsel as to afford
presumption that it was the ground of the address by the client,
then it is privileged from disclosure. xxx.
It appears... that the name and address of the owner of
the second cab came to the attorney in this case as a
confidential communication. His client is not seeking to use the
courts, and his address cannot be disclosed on that theory, nor
is the present action pending against him as service of the
summons on him has not been effected. The objections on
which the court reserved decision are sustained. [39]
In the case of Matter of Shawmut Mining Company,[40] the
lawyer involved was required by a lower court to disclose
whether he represented certain clients in a certain
transaction. The purpose of the courts request was to
determine whether the unnamed persons as interested parties
were connected with the purchase of properties involved in the
action. The lawyer refused and brought the question to the
State Supreme Court. Upholding the lawyers refusal to divulge
the names of his clients the court held:
If it can compel the witness to state, as directed by the
order appealed from, that he represented certain persons in the
purchase or sale of these mines, it has made progress in
establishing by such evidence their version of the litigation. As
already suggested, such testimony by the witness would
compel him to disclose not only that he was attorney for certain
people, but that, as the result of communications made to him
in the course of such employment as such attorney, he knew
that they were interested in certain transactions. We feel sure
that under such conditions no case has ever gone to the length
of compelling an attorney, at the instance of a hostile litigant, to
disclose not only his retainer, but the nature of the transactions
to which it related, when such information could be made the
basis of a suit against his client.[41]
3) Where the governments lawyers have no case against
an attorneys client unless, by revealing the clients name, the
said name would furnish the only link that would form the chain
of testimony necessary to convict an individual of a crime, the
clients name is privileged.
In Baird vs Korner,[42] a lawyer was consulted by the
accountants and the lawyer of certain undisclosed taxpayers
regarding steps to be taken to place the undisclosed taxpayers
in a favorable position in case criminal charges were brought
against them by the U.S. Internal Revenue Service (IRS).
9
It appeared that the taxpayers returns of previous years
were probably incorrect and the taxes understated. The clients
themselves were unsure about whether or not they violated tax
laws and sought advice from Baird on the hypothetical
possibility that they had. No investigation was then being
undertaken by the IRS of the taxpayers. Subsequently, the
attorney of the taxpayers delivered to Baird the sum of
$12,706.85, which had been previously assessed as the tax
due, and another amount of money representing his fee for the
advice given. Baird then sent a check for $12,706.85 to the IRS
in Baltimore, Maryland, with a note explaining the payment, but
without naming his clients. The IRS demanded that Baird
identify the lawyers, accountants, and other clients
involved. Baird refused on the ground that he did not know their
names, and declined to name the attorney and accountants
because this constituted privileged communication. A petition
was filed for the enforcement of the IRS summons. For Bairds
repeated refusal to name his clients he was found guilty of civil
contempt. The Ninth Circuit Court of Appeals held that, a lawyer
could not be forced to reveal the names of clients who
employed him to pay sums of money to the government
voluntarily in settlement of undetermined income taxes, unsued
on, and with no government audit or investigation into that
clients income tax liability pending. The court emphasized the
exception that a clients name is privileged when so much has
been revealed concerning the legal services rendered that the
disclosure of the clients identity exposes him to possible
investigation and sanction by government agencies. The Court
held:
The facts of the instant case bring it squarely within that
exception to the general rule. Here money was received by the
government, paid by persons who thereby admitted they had
not paid a sufficient amount in income taxes some one or more
years in the past. The names of the clients are useful to the
government for but one purpose - to ascertain which taxpayers
think they were delinquent, so that it may check the records for
that one year or several years. The voluntary nature of the
payment indicates a belief by the taxpayers that more taxes or
interest or penalties are due than the sum previously paid, if
any.It indicates a feeling of guilt for nonpayment of taxes,
though whether it is criminal guilt is undisclosed. But it may well
be the link that could form the chain of testimony necessary to
convict an individual of a federal crime. Certainly the payment
and the feeling of guilt are the reasons the attorney here
involved was employed - to advise his clients what, under the
circumstances, should be done.[43]
Apart from these principal exceptions, there exist other
situations which could qualify as exceptions to the general rule.
For example, the content of any client communication to a
lawyer lies within the privilege if it is relevant to the subject
matter of the legal problem on which the client seeks legal
assistance.[44] Moreover, where the nature of the attorney-client
relationship has been previously disclosed and it is
the identity which is intended to be confidential, the identity of
the client has been held to be privileged, since such revelation
would otherwise result in disclosure of the entire transaction.[45]
Summarizing these exceptions, information relating to the
identity of a client may fall within the ambit of the privilege when
the clients name itself has an independent significance, such
that disclosure would then reveal client confidences. [46]
The circumstances involving the engagement of lawyers
in the case at bench, therefore, clearly reveal that the instant
case falls under at least two exceptions to the general
rule. First, disclosure of the alleged client's name would lead to
establish said client's connection with the very fact in issue of
the case, which is privileged information, because the privilege,
as stated earlier, protects the subject matter or the substance
(without which there would be no attorney-client relationship).
The link between the alleged criminal offense and the
legal advice or legal service sought was duly established in the
case at bar, by no less than the PCGG itself. The key lies in the
three specific conditions laid down by the PCGG which
constitutes petitioners ticket to non-prosecution should they
accede thereto:
(a) the disclosure of the identity of its clients;
(b) submission of documents substantiating the lawyer-client
relationship; and
(c) the submission of the deeds of assignment petitioners
executed in favor of their clients covering their respective
shareholdings.
From these conditions, particularly the third, we can
readily deduce that the clients indeed consulted the petitioners,
in their capacity as lawyers, regarding the financial and
corporate structure, framework and set-up of the corporations in
question. In turn, petitioners gave their professional advice in
the form of, among others, the aforementioned deeds of
assignment covering their clients shareholdings.
There is no question that the preparation of the
aforestated documents was part and parcel of petitioners legal
service to their clients. More important, it constituted an integral
part of their duties as lawyers. Petitioners, therefore, have a
legitimate fear that identifying their clients would implicate them
in the very activity for which legal advice had been sought, i.e.,
the alleged accumulation of ill-gotten wealth in the
aforementioned corporations.
Furthermore, under the third main exception, revelation of
the client's name would obviously provide the necessary link for
the prosecution to build its case, where none otherwise
exists. It is the link, in the words of Baird, that would inevitably
form the chain of testimony necessary to convict the (client) of
a... crime."[47]
An important distinction must be made between a case
where a client takes on the services of an attorney for illicit
purposes, seeking advice about how to go around the law for
the purpose of committing illegal activities and a case where a
client thinks he might have previously committed something
illegal and consults his attorney about it. The first case clearly
does not fall within the privilege because the same cannot be
invoked for purposes illegal. The second case falls within the
exception because whether or not the act for which the advice
turns out to be illegal, his name cannot be used or disclosed if
the disclosure leads to evidence, not yet in the hands of the
prosecution, which might lead to possible action against him.
These cases may be readily distinguished, because the
privilege cannot be invoked or used as a shield for an illegal
act, as in the first example; while the prosecution may not have
a case against the client in the second example and cannot use
the attorney client relationship to build up a case against the
latter. The reason for the first rule is that it is not within the
professional character of a lawyer to give advice on the
commission of a crime.[48] The reason for the second has been
stated in the cases above discussed and are founded on the
same policy grounds for which the attorney-client privilege, in
general, exists.
In Matter of Shawmut Mining Co., supra, the appellate
court therein stated that "under such conditions no case has
ever yet gone to the length of compelling an attorney, at the
instance of a hostile litigant, to disclose not only his retainer, but
the nature of the transactions to which it related, when such
information could be made the basis of a suit against his
client.[49]"Communications made to an attorney in the course
of any personal employment, relating to the subject
thereof, and which may be supposed to be drawn out in
consequence of the relation in which the parties stand to each
other, are under the seal of confidence and entitled to
protection as privileged communications."[50] Where the
communicated information, which clearly falls within the
privilege, would suggest possible criminal activity but there
would be not much in the information known to the prosecution
which would sustain a charge except that revealing the name of
10
the client would open up other privileged information which
would substantiate the prosecutions suspicions, then the clients
identity is so inextricably linked to the subject matter itself that it
falls within the protection. The Baird exception, applicable to the
instant case, is consonant with the principal policy behind the
privilege, i.e., that for the purpose of promoting freedom of
consultation of legal advisors by clients, apprehension of
compelled disclosure from attorneys must be eliminated. This
exception has likewise been sustained in In re Grand Jury
Proceedings[51] and Tillotson v. Boughner.[52] What these cases
unanimously seek to avoid is the exploitation of the general rule
in what may amount to a fishing expedition by the prosecution.
There are, after all, alternative sources of information
available to the prosecutor which do not depend on utilizing a
defendant's counsel as a convenient and readily available
source of information in the building of a case against the
latter. Compelling disclosure of the client's name in
circumstances such as the one which exists in the case at
bench amounts to sanctioning fishing expeditions by lazy
prosecutors and litigants which we cannot and will not
countenance. When the nature of the transaction would be
revealed by disclosure of an attorney's retainer, such retainer is
obviously protected by the privilege. [53] It follows that petitioner
attorneys in the instant case owe their client(s) a duty and an
obligation not to disclose the latter's identity which in turn
requires them to invoke the privilege.
In fine, the crux of petitioners' objections ultimately hinges
on their expectation that if the prosecution has a case against
their clients, the latter's case should be built upon evidence
painstakingly gathered by them from their own sources and not
from compelled testimony requiring them to reveal the name of
their clients, information which unavoidably reveals much about
the nature of the transaction which may or may not be
illegal. The logical nexus between name and nature of
transaction is so intimate in this case that it would be difficult to
simply dissociate one from the other. In this sense, the name is
as much "communication" as information revealed directly
about the transaction in question itself, a communication which
is clearly and distinctly privileged. A lawyer cannot reveal such
communication without exposing himself to charges of violating
a principle which forms the bulwark of the entire attorney-client
relationship.
The uberrimei fidei relationship between a lawyer and his
client therefore imposes a strict liability for negligence on the
former. The ethical duties owing to the client, including
confidentiality, loyalty, competence, diligence as well as the
responsibility to keep clients informed and protect their rights to
make decisions have been zealously sustained. In Milbank,
Tweed, Hadley and McCloy v. Boon,[54] the US Second District
Court rejected the plea of the petitioner law firm that it breached
its fiduciary duty to its client by helping the latter's former agent
in closing a deal for the agent's benefit only after its client
hesitated in proceeding with the transaction, thus causing no
harm to its client. The Court instead ruled that breaches of a
fiduciary relationship in any context comprise a special breed of
cases that often loosen normally stringent requirements of
causation and damages, and found in favor of the client.
To the same effect is the ruling in Searcy, Denney,
Scarola, Barnhart, and Shipley P.A. v. Scheller [55] requiring
strict obligation of lawyers vis-a-vis clients. In this case, a
contingent fee lawyer was fired shortly before the end of
completion of his work, and sought payment quantum meruit of
work done. The court, however, found that the lawyer was fired
for cause after he sought to pressure his client into signing a
new fee agreement while settlement negotiations were at a
critical stage. While the client found a new lawyer during
the interregnum, events forced the client to settle for less than
what was originally offered. Reiterating the principle of fiduciary
duty of lawyers to clients in Meinhard v. Salmon[56] famously
attributed to Justice Benjamin Cardozo that "Not honesty alone,
but the punctilio of an honor the most sensitive, is then the
standard of behavior," the US Court found that the lawyer
involved was fired for cause, thus deserved no attorney's fees
at all.
 The utmost zeal given by Courts to the protection of the
lawyer-client confidentiality privilege and lawyer's loyalty to his
client is evident in the duration of the protection, which exists
not only during the relationship, but extends even after the
termination of the relationship.[57]
Such are the unrelenting duties required of lawyers vis-a-
vis their clients because the law, which the lawyers are sworn
to uphold, in the words of Oliver Wendell Holmes, [58] "xxx is an
exacting goddess, demanding of her votaries in intellectual and
moral discipline." The Court, no less, is not prepared to accept
respondents position without denigrating the noble profession
that is lawyering, so extolled by Justice Holmes in this wise:
Every calling is great when greatly pursued. But what other
gives such scope to realize the spontaneous energy of one's
soul? In what other does one plunge so deep in the stream of
life - so share its passions its battles, its despair, its triumphs,
both as witness and actor? x x x But that is not all. What a
subject is this in which we are united - this abstraction called
the Law, wherein as in a magic mirror, we see reflected, not
only in our lives, but the lives of all men that have been. When I
think on this majestic theme my eyes dazzle. If we are to speak
of the law as our mistress, we who are here know that she is a
mistress only to be won with sustained and lonely passion -
only to be won by straining all the faculties by which man is
likened to God.
We have no choice but to uphold petitioners' right not to
reveal the identity of their clients under pain of the breach of
fiduciary duty owing to their clients, because the facts of the
instant case clearly fall within recognized exceptions to the rule
that the clients name is not privileged information.
If we were to sustain respondent PCGG that the lawyer-
client confidential privilege under the circumstances obtaining
here does not cover the identity of the client, then it would
expose the lawyers themselves to possible litigation by their
clients in view of the strict fiduciary responsibility imposed on
them in the exercise of their duties.
The complaint in Civil Case No. 0033 alleged that the
defendants therein, including herein petitioners and Eduardo
Cojuangco, Jr. conspired with each other in setting up through
the use of coconut levy funds the financial and corporate
framework and structures that led to the establishment of
UCPB, UNICOM and others and that through insidious means
and machinations, ACCRA, using its wholly-owned investment
arm, ACCRA Investments Corporation, became the holder of
approximately fifteen million shares representing roughly 3.3%
of the total capital stock of UCPB as of 31 March 1987. The
PCGG wanted to establish through the ACCRA lawyers that Mr.
Cojuangco is their client and it was Cojuangco who furnished all
the monies to the subscription payment; hence, petitioners
acted as dummies, nominees and/or agents by allowing
themselves, among others, to be used as instrument in
accumulating ill-gotten wealth through government
concessions, etc., which acts constitute gross abuse of official
position and authority, flagrant breach of public trust, unjust
enrichment, violation of the Constitution and laws of the
Republic of the Philippines.
By compelling petitioners, not only to reveal the identity of
their clients, but worse, to submit to the PCGG documents
substantiating the client-lawyer relationship, as well as deeds of
assignment petitioners executed in favor of its clients covering
their respective shareholdings, the PCGG would exact from
petitioners a link that would inevitably form the chain of
testimony necessary to convict the (client) of a crime.
III
In response to petitioners' last assignment of error,
respondents allege that the private respondent was dropped as
party defendant not only because of his admission that he
acted merely as a nominee but also because of his undertaking
to testify to such facts and circumstances "as the interest of
11
truth may require, which includes... the identity of the
principal."[59]
First, as to the bare statement that private respondent
merely acted as a lawyer and nominee, a statement made in
his out-of-court settlement with the PCGG, it is sufficient to
state that petitioners have likewise made the same claim not
merely out-of- court but also in their Answer to plaintiff's
Expanded Amended Complaint, signed by counsel, claiming
that their acts were made in furtherance of "legitimate
lawyering.[60] Being "similarly situated" in this regard, public
respondents must show that there exist other conditions and
circumstances which would warrant their treating the private
respondent differently from petitioners in the case at bench in
order to evade a violation of the equal protection clause of the
Constitution.
To this end, public respondents contend that the primary
consideration behind their decision to sustain the PCGG's
dropping of private respondent as a defendant was his promise
to disclose the identities of the clients in question. However,
respondents failed to show - and absolutely nothing exists in
the records of the case at bar - that private respondent
actually revealed the identity of his client(s) to the PCGG. Since
the undertaking happens to be the leitmotif of the entire
arrangement between Mr. Roco and the PCGG, an undertaking
which is so material as to have justified PCGG's special
treatment exempting the private respondent from prosecution,
respondent Sandiganbayan should have required proof of the
undertaking more substantial than a "bare assertion" that
private respondent did indeed comply with the
undertaking. Instead, as manifested by the PCGG, only three
documents were submitted for the purpose, two of which were
mere requests for re-investigation and one simply disclosed
certain clients which petitioners (ACCRA lawyers) were
themselves willing to reveal. These were clients to whom both
petitioners and private respondent rendered legal services
while all of them were partners at ACCRA, and were not the
clients which the PCGG wanted disclosed for the alleged
questioned transactions.[61]
To justify the dropping of the private respondent from the
case or the filing of the suit in the respondent court without him,
therefore, the PCGG should conclusively show that Mr. Roco
was treated as a species apart from the rest of the ACCRA
lawyers on the basis of a classification which made substantial
distinctions based on real differences. No such substantial
distinctions exist from the records of the case at bench, in
violation of the equal protection clause.
The equal protection clause is a guarantee which
provides a wall of protection against uneven application of
statutes and regulations. In the broader sense, the guarantee
operates against uneven application of legal norms so that all
persons under similar circumstances would be accorded the
same treatment.[62] Those who fall within a particular class
ought to be treated alike not only as to privileges granted but
also as to the liabilities imposed.
x x x. What is required under this constitutional guarantee is the
uniform operation of legal norms so that all persons under
similar circumstances would be accorded the same treatment
both in the privileges conferred and the liabilities imposed. As
was noted in a recent decision: Favoritism and undue
preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under
circumstances, which if not identical are analogous. If law be
looked upon in terms of burden or charges, those that fall within
a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding the
rest.[63]
We find that the condition precedent required by the
respondent PCGG of the petitioners for their exclusion as
parties-defendants in PCGG Case No. 33 violates the lawyer-
client confidentiality privilege. The condition also constitutes a
transgression by respondents Sandiganbayan and PCGG of
the equal protection clause of the Constitution.[64] It is grossly
unfair to exempt one similarly situated litigant from prosecution
without allowing the same exemption to the others. Moreover,
the PCGGs demand not only touches upon the question of the
identity of their clients but also on documents related to the
suspected transactions, not only in violation of the attorney-
client privilege but also of the constitutional right against self-
incrimination.Whichever way one looks at it, this is a fishing
expedition, a free ride at the expense of such rights.
An argument is advanced that the invocation by
petitioners of the privilege of attorney-client confidentiality at
this stage of the proceedings is premature and that they should
wait until they are called to testify and examine as witnesses as
to matters learned in confidence before they can raise their
objections. But petitioners are not mere witnesses. They are co-
principals in the case for recovery of alleged ill-gotten
wealth. They have made their position clear from the very
beginning that they are not willing to testify and they cannot be
compelled to testify in view of their constitutional right against
self-incrimination and of their fundamental legal right to
maintain inviolate the privilege of attorney-client confidentiality.
It is clear then that the case against petitioners should
never be allowed to take its full course in the
Sandiganbayan. Petitioners should not be made to suffer the
effects of further litigation when it is obvious that their inclusion
in the complaint arose from a privileged attorney-client
relationship and as a means of coercing them to disclose the
identities of their clients.To allow the case to continue with
respect to them when this Court could nip the problem in the
bud at this early opportunity would be to sanction an unjust
situation which we should not here countenance. The case
hangs as a real and palpable threat, a proverbial Sword of
Damocles over petitioners' heads. It should not be allowed to
continue a day longer.
While we are aware of respondent PCGGs legal mandate
to recover ill-gotten wealth, we will not sanction acts which
violate the equal protection guarantee and the right against self-
incrimination and subvert the lawyer-client confidentiality
privilege.
WHEREFORE, IN VIEW OF THE FOREGOING, the
Resolutions of respondent Sandiganbayan (First Division)
promulgated on March 18, 1992 and May 21, 1992 are hereby
ANNULLED and SET ASIDE. Respondent Sandiganbayan is
further ordered to exclude petitioners Teodoro D. Regala,
Edgardo J. Angara, Avelino V. Cruz, Jose C.
Concepcion, *Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U.
Escueta and Paraja G. Hayuduni as parties-defendants in SB
Civil Case No. 0033 entitled "Republic of the Philippines v.
Eduardo Cojuangco, Jr., et al.".
SO ORDERED.
Bellosillo, Melo, and Francisco, JJ., concur.
Vitug, J., see separate opinion.
Padilla, Panganiban, and Torres, Jr., JJ., concur in the
result.
Davide, Jr. and Puno, JJ., see dissenting opinion.
Narvasa, C.J., and Regalado, J., joins Justice Davide in
his dissent.
Romero, J., no part. Related to PCGG Commissioner
when Civil Case No. 0033 was filed.
Hermosisima, Jr., J., no part. Participated in
Sandiganbayan deliberations thereon.
Mendoza, J., on leave.
G.R. No. L-9231 January 6, 1915
UY CHICO, plaintiff-appellant,
vs.
THE UNION LIFE ASSURANCE SOCIETY, LIMITED, ET
AL., defendants-appellees.
Beaumont and Tenney for appellant.
Bruce, Lawrence, Ross and Block for appellees.
12
TRENT, J.:
An appeal from a judgment dismissing the complaint upon the
merits, with costs.
The plaintiff seeks to recover the face value of two insurance
policies upon a stock of dry goods destroyed by fire. It appears
that the father of the plaintiff died in 1897, at which time he was
conducting a business under his own name, Uy Layco. The
plaintiff and his brother took over the business and continued it
under the same name, "Uy Layco." Sometime before the date
of the fire, the plaintiff purchased his brother's interest in the
business and continued to carry on the business under the
father's name. At the time of the fire "Uy Layco" was heavily
indebted and subsequent thereto the creditors of the estate of
the plaintiff's father. During the course of these proceedings,
the plaintiff's attorney surrendered the policies of insurance to
the administrator of the estate, who compromised with the
insurance company for one-half their face value, or P6,000.
This money was paid into court and is now being held by the
sheriff. The plaintiff now brings this action, maintaining that the
policies and goods insured belonged to him and not to the
estate of his deceased father and alleges that he is not bound
by the compromise effected by the administrator of his father's
estate.
The defendant insurance company sought to show that the
plaintiff had agreed to compromise settlement of the policies,
and for that purpose introduced evidence showing that the
plaintiff's attorney had surrendered the policies to the
administrator with the understanding that such a compromise
was to be effected. The plaintiff was asked, while on the
witness stand, if he had any objection to his attorney's testifying
concerning the surrender of the policies, to which he replied in
the negative. The attorney was then called for that purpose.
Whereupon, counsel for the plaintiff formally withdrew the
waiver previously given by the plaintiff and objected to the
testimony of the attorney on the ground that it was privileged.
Counsel, on this appeal, base their argument of the proposition
that a waiver of the client's privilege may be withdrawn at any
time before acted upon, and cite in support thereof Ross vs.
Great Northern Ry. Co., (101 Minn., 122; 111 N. W., 951). The
case of Natlee Draft Horse Co. vs. Cripe and Co. (142 Ky.,
810), also appears to sustain their contention. But a preliminary
question suggest itself, Was the testimony in question
privileged?
Our practice Act provides: "A lawyer must strictly maintain
inviolate the confidence and preserve the secrets of his client.
He shall not be permitted in any court, without the consent of
his client, given in open court, to testify to any facts imparted to
him by his client in professional consultation, or for the purpose
of obtaining advice upon legal matters." (Sec. 31, Act No. 190.)
A similar provision is inserted in section 383, No. 4, of the same
Act. It will be noted that the evidence in question concerned the
dealings of the plaintiff's attorney with a third person. Of the
very essence of the veil of secrecy which surrounds
communications made between attorney and client, is that such
communications are not intended for the information of third
persons or to be acted upon by them, put of the purpose of
advising the client as to his rights. It is evident that a
communication made by a client to his attorney for the express
purpose of its being communicated to a third person is
essentially inconsistent with the confidential relation. When the
attorney has faithfully carried out his instructions be delivering
the communication to the third person for whom it was intended
and the latter acts upon it, it cannot, by any reasoning
whatever, be classified in a legal sense as a privileged
communication between the attorney and his client. It is plain
that such a communication, after reaching the party for whom it
was intended at least, is a communication between the client
and a third person, and that the attorney simply occupies the
role of intermediary or agent. We quote from but one case
among the many which may be found upon the point:
 The proposition advanced by the respondent and
adopted by the trial court, that one, after fully
authorizing his attorney, as his agent, to enter into
contract with a third party, and after such authority
has been executed and relied on, may effectively
nullify his own and his duly authorized agent's act by
closing the attorney's mouth as to the giving of such
authority, is most startling. A perilous facility of fraud
and wrong, both upon the attorney and the third party,
would result. The attorney who, on his client's
authority, contracts in his behalf, pledges his
reputation and integrity that he binds his client. The
third party may well rely on the assurance of a
reputable lawyer that he has authority in fact, though
such assurance be given only by implication from the
doing of the act itself. It is with gratification, therefore,
that we find overwhelming weight of authority, against
the position assumed by the court below, both in
states where the privilege protecting communications
with attorneys is still regulated by the common law
and in those where it is controlled by statute, as in
Wisconsin. (Koeber vs. Sommers, 108 Wis., 497; 52
L. R. A., 512.)
Other cases wherein the objection to such evidence on the
ground of privilege has been overruled are: Henderson vs.
Terry (62 Tex., 281); Shove vs. Martin (85 Minn., 29); In
re Elliott (73 Kan., 151); Collins vs. Hoffman (62 Wash., 278);
Gerhardt vs. Tucker (187 Mo., 46). These cases cover a variety
of communications made by an authority in behalf of his client
to third persons. And cases wherein evidence of the attorney as
to compromises entered into by him on behalf of his client were
allowed to be proved by the attorney's testimony are not
wanting. (Williams vs. Blumenthal, 27 Wash., 24; Koeber vs.
Sommers, supra.)
It is manifest that the objection to the testimony of the plaintiff's
attorney as to his authority to compromise was properly
overruled. The testimony was to the effect that when the
attorney delivered the policies to the administrator, he
understood that there was a compromise to be effected, and
that when he informed the plaintiff of the surrender of the
policies for that purpose the plaintiff made no objection
whatever. The evidence is sufficient to show that the plaintiff
acquiesced in the compromise settlement of the policies.
Having agreed to the compromise, he cannot now disavow it
and maintain an action for the recovery of their face value.
For the foregoing reasons the judgment appealed from is
affirmed, with costs. So ordered.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.
Moreland, J., concurs in the result.
THIRD DIVISION
[A.C. No. 4078. July 14, 2003]
WILLIAM ONG GENATO, complainant, vs. ATTY. ESSEX L.
SILAPAN, respondent.
DECISION
PUNO, J.:
In this complaint for disbarment filed by William Ong
Genato against respondent Atty. Essex L. Silapan, complainant
alleged that in July 1992, respondent asked if he could rent a
small office space in complainants building in Quezon City for
13
his law practice. Complainant acceded and introduced
respondent to Atty. Benjamin Dacanay, complainants retained
lawyer, who accommodated respondent in the building and
made him handle some of complainants cases. Hence, the start
of the legal relationship between complainant and respondent.
The conflict between the parties started when respondent
borrowed two hundred thousand pesos (P200,000.00) from
complainant which he intended to use as downpayment for the
purchase of a new car. In return, respondent issued to
complainant a postdated check in the amount of P176,528.00
to answer for the six (6) months interest on the loan. He
likewise mortgaged to complainant his house and lot in Quezon
City but did not surrender its title claiming that it was the subject
of reconstitution proceedings before the Quezon City Register
of Deeds.
With the money borrowed from complainant, respondent
purchased a new car. However, the document of sale of the car
was issued in complainants name and financed through City
Trust Company.
In January 1993, respondent introduced to complainant a
certain Emmanuel Romero. Romero likewise wanted to borrow
money from complainant. Complainant lent Romero the money
and, from this transaction, respondent earned commission in
the amount of P52,289.90. Complainant used the commission
to pay respondents arrears with the car financing firm.
Subsequently, respondent failed to pay the amortization
on the car and the financing firm sent demand letters to
complainant. Complainant tried to encash respondents
postdated check with the drawee bank but it was dishonored as
respondents account therein was already closed.
Respondent failed to heed complainants repeated
demands for payment. Complainant then filed a criminal
case against respondent for violation of Batas Pambansa
Blg. 22 and a civil case for judicial foreclosure of real
estate mortgage.
In the foreclosure case, respondent made the following
allegation in his Answer:
xxxxxxxxx
4. That complainant is a businessman who is engaged in the
real estate business, trading and buy and sell of deficiency
taxed imported cars, shark loans and other shady deals
and has many cases pending in court;
xxxxxxxxx
Complainant denied respondents charges and claimed
that respondents allegation is libelous and not privilege as it
was irrelevant to the foreclosure case. Complainant further
pointed to paragraph 12 of respondents Answer, thus:
12. That on January 29, 1993, before paying for the next
installment on his car on January 30, 1993, defendant Essex L.
Silapan asked the complainant to execute a Deed of Sale
transferring ownership of the car to him but the latter said that
he will only do so after the termination of his criminal case at
Branch 138 of the Regional Trial Court of Makati, Metro
Manila, x x x where he (complainant) wanted Essex L.
Silapan, his former counsel in that case, to offer bribe
money to the members of the review committee of the
Department of Justice where a petition for review of the
resolution of the Investigating Prosecutor was pending at
the time, x x x or, in the event that the said petition for
review is denied, he wanted Essex L. Silapan to offer bribe
money to the prosecutor assigned at the above-mentioned
Court, and even to the presiding Judge, for his eventual
acquittal, which defendant Essex L. Silapan all refused to
do not only because such acts are immoral and illegal, but
also because the complainant confided to him that he was
really involved in the commission of the crime that was
charged of in the above-mentioned case. (emphasis
supplied)
 Complainant gripes that the foregoing allegations are
false, immaterial to the foreclosure case and maliciously
designed to defame him. He charged that in making such
allegations, respondent is guilty of breaking their confidential
lawyer-client relationship and should be held administratively
liable therefor. Consequently, he filed this complaint for
disbarment, praying also that an administrative sanction be
meted against respondent for his issuance of a bouncing check.
When required by the Court to comment, respondent
explained[1] that it was complainant who offered him an office
space in his building and retained him as counsel as the latter
was impressed with the way he handled a B.P. 22 case[2] filed
against complainant. Respondent insisted that there was
nothing libelous in his imputations of dishonest business
practices to complainant and his revelation of complainants
desire to bribe government officials in relation to his pending
criminal case. He claimed to have made these statements in
the course of judicial proceedings to defend his case and
discredit complainants credibility by establishing his criminal
propensity to commit fraud, tell lies and violate laws. He argued
that he is not guilty of breaking his confidential lawyer-client
relationship with complainant as he made the disclosure in
defense of his honor and reputation.
Secondly, respondent asserted that he executed the real
estate mortgage in favor of complainant without consideration
and only as a formal requirement so he could obtain
the P200,000.00 loan and for this reason, he did not surrender
his title over the mortgaged property to complainant.
Thirdly, respondent claimed that he issued the postdated
check, not for account or for value, but only: (a) to serve as
some kind of acknowledgment that he already received in
advance a portion of his attorneys fees from the complainant for
the legal services he rendered, and (b) as a form of assurance
that he will not abandon the cases he was handling for
complainant.
Lastly, respondent denied that he received a P52,289.90
commission from Romeros loan which he allegedly helped
facilitate. He alleged that the amount was paid to him by
Romero as attorneys fees, the latter being his client. He used
this amount to pay his arrears with the car financing firm. On
January 29, 1993, before paying the next amortization on the
car, he asked complainant to execute a deed of sale
transferring ownership of the car to him. Complainant refused
and insisted that he would transfer ownership of the car only
after the termination of his criminal case which respondent was
handling as his defense lawyer. Consequently, respondent
stopped paying the amortization on the car. Respondent also
alleged that he filed a perjury case against complainant
who, in turn, filed a complaint for libel against him.
In a Resolution, dated October 27, 1993, the Court
referred the administrative case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.
On August 3, 2002, the Board of Governors of the IBP
approved the report of the investigating commissioner finding
the respondent guilty as charged and recommending his
suspension from the practice of law for one (1) year.
We affirm the findings and recommendation of the IBP.
Prefatorily, we stress that we shall not delve into the
merits of the various criminal and civil cases pending between
the parties. It is for the trial courts handling these cases to
ascertain the truth or falsity of the allegations made therein. For
this reason, it is not for us to sanction respondent for his
issuance of a bouncing check. His liability has yet to be
determined by the trial court where his case is pending.
The only issue in this administrative case is whether
respondent committed a breach of trust and confidence by
imputing to complainant illegal practices and disclosing
complainants alleged intention to bribe government officials in
connection with a pending case.
14
Canon 17 of the Code of Professional Responsibility
provides that a lawyer owes fidelity to the cause of his client
and shall be mindful of the trust and confidence reposed on
him. The long-established rule is that an attorney is not
permitted to disclose communications made to him in his
professional character by a client, unless the latter
consents. This obligation to preserve the confidences and
secrets of a client arises at the inception of their
relationship.[3] The protection given to the client is perpetual
and does not cease with the termination of the litigation, nor is it
affected by the partys ceasing to employ the attorney and
retaining another, or by any other change of relation between
them. It even survives the death of the client.[4]
It must be stressed, however, that the privilege against
disclosure of confidential communications or information is
limited only to communications which are legitimately and
properly within the scope of a lawful employment of a lawyer. It
does not extend to those made in contemplation of a crime or
perpetration of a fraud.[5] If the unlawful purpose is avowed, as
in this case, the complainants alleged intention to bribe
government officials in relation to his case, the communication
is not covered by the privilege as the client does not consult the
lawyer professionally. It is not within the profession of a lawyer
to advise a client as to how he may commit a crime as a lawyer
is not a gun for hire. Thus, the attorney-client privilege does not
attach, there being no professional employment in the strict
sense.
Be that as it may, respondents explanation that it was
necessary for him to make the disclosures in his pleadings fails
to satisfy us. The disclosures were not indispensable to protect
his rights as they were not pertinent to the foreclosure case. It
was improper for the respondent to use it against the
complainant in the foreclosure case as it was not the subject
matter of litigation therein and respondents professional
competence and legal advice were not being attacked in said
case. A lawyer must conduct himself, especially in his dealings
with his clients, with integrity in a manner that is beyond
reproach. His relationship with his clients should be
characterized by the highest degree of good faith and fairness.
Thus, the Court agrees with the evaluation of the IBP and
finds that respondents allegations and disclosures in the
foreclosure case amount to a breach of fidelity sufficient to
warrant the imposition of disciplinary sanction against
him. However, the recommended penalty of one (1) year
suspension of respondent from the practice of law seems to be
disproportionate to his breach of duty considering that a review
of the records of this Court reveals that this is the first
administrative complaint against him.
IN VIEW WHEREOF, respondent Atty. Essex L. Silapan
is ordered suspended from the practice of law for a period of six
(6) months effective upon receipt of this Decision. Let a copy of
this Decision be furnished the Office of the Bar Confidant and
the Integrated Bar of the Philippines. The Court Administrator is
directed to circulate this order of suspension to all courts in the
country.
SO ORDERED.
Panganiban, Corona, and Carpio-Morales, JJ., concur.
Sandoval-Gutierrez, J., on official leave.
--------------------------------------------------------------------------
SECOND DIVISION
[A.C. No. 4426. February 17, 2000]
RAMON SAURA, Jr., complainant, vs. ATTY. LALAINE
LILIBETH AGDEPPA, respondent.
[A.C. No. 4429. February 17, 2000]
HELEN BALDORIA and RAYMUNDO
SAURA, complainants, vs. ATTY. LALAINE LILIBETH
AGDEPPA, respondent. Sd-aad-sc
RESOLUTION
DE LEON, JR., J.:
[1]
Two (2) petitions, one by Ramon Saura, Jr. and the other by
Helen S. Baldoria and Raymundo Y. Saura[2], were filed before
this Court charging Atty. Lalaine Lilibeth Agdeppa for violation
of her lawyers oath and disregard of Sections 15, 22, 25, 29, 31
and 32 of the Canons of Professional Ethics. [3]
The two (2) complaints are related and arose from the handling
of the respondent of a settlement case involving a piece of
property owned in common by the petitioners with their other
siblings, Macrina, Romeo and Amelita, all surnamed Saura,
who were then the administrators of the said property of the late
Ramon E. Saura who died intestate on May 15, 1992. xl-aw
The pertinent facts, as delineated in the report of the National
Grievance Investigation Office of the Integrated Bar of the
Philippines, are as follows:
"It appears that negotiations for the
settlement of the property (referring to the
intestate estate of Ramon E. Saura)
dragged on for three (3) years until on April
27, 1995, petitioners learned that the
administrators of the property, Macrina,
Romeo and Amelita, had, with the
assistance of the respondent, who in fact
notarized the Deed of Sale, sold the
property to Sandalwood Real Estate and
Development Corporation without the
knowledge and participation of petitioners.
To compound matters, petitioners alledge
[sic] that despite repeated demands, the
vendors or their counsel, respondent
herein, have refused to disclose the
amount of the sale or account for the
proceeds. The petitioners have thus been
constrained to institute criminal and civil
actions to enforce and protect their rights.
"This case was refered [sic] to the Integrated
Bar by the Supreme Court in a resolution
dated November 20, 1995, after its earlier
resolution dated June 19, 1995, was
returned unserved with the Postmasters
notation that the same was "unclaimed".
"At the scheduled hearing of this case on
February 5, 1998, the petitioners counsel,
Atty. Carolina Esguerra-Ochoa filed a
written entry of appearance. There was no
appearance for the respondent but this
office, noting the new address of the
respondent as furnished by Atty. Ochoa,
suggested that the latter furnish a copy of
the complaint to respondent at the latters
new address. In a Compliance dated
February 10, 1998, Atty. Ochoa informed
this Office that she had furnished the
respondent with a copy of the petition dated
May 24, 1995, plus the Supreme Courts
resolution dated June 19, and November 20,
1995, plus our Order dated December 8,
1997, and Notice of Appearance dated
February 5, 1998. x-sc
"On March 10, 1998, the petitioners counsel
submitted a Manifestation attached to which
15
were photocopies of the front and dorsal
portion of the return card evidencing
receipt by herein respondent of the
documents enumerated by Atty. Ochoa in
her Compliance dated February 10, 1998.
The return card is dated March 2, 1998.
"To date, no response has been forth
coming from Atty. Agdeppa."[4]
For her continued defiance of orders of this Court for her to
answer the administrative charges leveled against her,
respondent was recommended to be penalized with a fine of
P10,000.00 and suspension from practice for one (1) year in
each of the two (2) cases pending against her.
Respondent filed a motion for reconsideration alleging that the
petitions should be dismissed because she was not accorded
her right to due process and that she could not answer the
administrative charges against her without divulging certain
pieces of information in violation of the attorney-client
privilege. Sc
Respondent does not convince.
First. The respondent was given notice on various occasions
but she chose to ignore them and failed to exercise her right to
be heard.
Section 30, Rule 138 of the Rules of Court specifically provides
that:
"Sec. 30. Attorney to be heard before
removal or suspension. No attorney shall be
removed or suspended from the practice of
his profession, until he has full opportunity
upon reasonable notice to answer the
charges against him, to produce witness in
his behalf, and to be heard by himself or
counsel. But if upon reasonable notice he
fails to appear and answer the accusations,
the court may proceed to determine the
matter ex parte."
Since respondent repeatedly ignored the notices sent to her by
this Court, we cannot be expected to wait indefinitely for her
answer. While respondent may have changed her address and
did not, thus, receive the previous notices, still, on March 2,
1998, she came to know of the Supreme Court Resolution
dated June 19, 1995.[5] The prudent thing for her to do was to
file an answer immediately and not to delay the matter any
further. Sadly, the respondent ignored the Resolution [6] of the
Supreme Court ordering her to file an answer.
Second. The request for the information regarding the sale of
the property and to account for the proceeds is not a violation of
the attorney-client privilege. Rule 130, Section 24 (b) of the
Rules of Court provides: Scmis
"Sec. 24. Disqualification by reason of
privileged communication. The following
persons cannot testify as to matters learned
in confidence in the following cases:
xxx xxx xxx
(b) An attorney cannot, without the consent
of his client, be examined as to any
communication made by the client to him, or
his advice given thereon in the course of, or
with a view to, professional employment, nor
can an attorneys secretary, stenographer, or
clerk be examined, without the consent of
 the client and his employer, concerning any
fact the knowledge of which has been
acquired in such capacity." Missc
The information requested by petitioners is not privileged. The
petitioners are only asking for the disclosure of the amount of
the sale or account for the proceeds. Petitioners certainly have
the right to ask for such information since they own the property
as co-heirs of the late Ramon E. Saura and as co-
administrators of the property. Hence, respondent cannot
refuse to divulge such information to them and hide behind the
cloak of the attorney-client relationship.
WHEREFORE, for the refusal of Atty. Lalaine Lilibeth Agdeppa
to comply with our Resolutions dated June 7 and 19, 1995
directing her to file an answer to the petitions, the Court hereby
penalizes her with a FINE of two thousand pesos (P2,000.00)
which should be paid within ten (10) days from receipt hereof;
otherwise, a penalty of imprisonment for five (5) days shall be
imposed. This resolution shall be immediately executory.
SO ORDERED. Misspped
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena,
JJ., concur.
[1]
Dated May 17, 1995 and docketed as Adm. Case. No. 4426.
[2]
Dated May 24, 1995 and docketed as Adm. Case No. 4429.
[3]
"15. How far a lawyer may go in supporting a clients cause.
`Nothing operates more certainly to create or foster popular
prejudice against lawyers as a class, and to deprive the
profession of that full measure of public esteem and confidence
which belongs to the proper discharge of its duties than does
the false claim, often set up by unscrupulous for the defense of
questionable transactions, that it is the duty of the lawyer to do
whatever may enable him to succeed in winning his clients
cause.
`It is improper for a lawyer to assert in argument his personal
belief in his clients innocence or in the justice of his cause.
`The lawyer owes "entire devotion to the interest of the client,
warm zeal in the maintenance and defense of his rights and the
exertion of his utmost learning and ability," to the end that
nothing be taken or be withheld from him, save by the rules of
law, legally applied. No fear of judicial disfavor or public
popularity should restrain him from full discharge of his duty. In
the judicial forum the client is entitled to the benefit of any and
every remedy and defense that is authorized by the law of the
land, and he may expect his lawyer to assert every such
remedy or defense. But it is steadfastly to be borne in mind that
the great trust of the lawyer is to be performed within and not
without the bounds of the law. The office of attorney does not
permit, much less does it demand of him for any client, violation
of law or any manner of fraud or chicanery. He may obey his
own conscience and not that of his client.
"22. Candor and fairness.
`The conduct of the lawyer before the court and with other
lawyers should be characterized by candor and fairness.
`It is not candid nor fair for the lawyer knowingly to misquote the
contents of a paper, the testimony of a witness, the language or
the argument of opposing counsel, of the language of a
decision or a textbook; or with the knowledge of its invalidity, to
cite as authority a decision that has been overruled or a statute
that has been repealed, or in argument to assert as a fact that
16
which has not been proved, or in those jurisdictions where a
side has an opening and closing arguments to mislead his
opponent by concealing or withholding positions in his opening
argument upon which his side he intends to rely.
`It is unprofessional and dishonorable to deal other than
candidly with the facts in taking the statements of witnesses, in
drawing affidavits and other documents, and in the presentation
of causes.
`A lawyer should not offer evidence which he knows the court
should reject, in order to get the same before the jury by
arguments for its admissibility, nor should he address to the
judge arguments upon any points not properly calling for
determination by him. Neither should he introduce into an
argument, addressed to the court, remarks or statements
intended to influence the by-standers.
"25. Taking technical advantage of opposite counsel;
agreements with him
`A lawyer should not ignore known customs or practice of the
bar or of a particular court, even when the law permits, without
giving timely notice to the opposite counsel. As far as possible,
important agreements, affecting the rights of clients should be
reduced to writing, but it is dishonorable to avoid performance
of an agreement fairly made because it is not reduced to
writing, as required by the Rules of Court.
"29. Upholding the honor of the profession
`Lawyers should expose without fear or favor before the proper
tribunal corrupt or dishonest conduct in the profession, and
should accept without hesitation employment against a member
of the bar who has wronged his client. The counsel upon the
trial of a cause in which perjury has been committed owes it to
the profession and to the public to bring the matter to the
knowledge of the prosecuting authorities. The lawyer should aid
in guarding the bar against admission to the profession of
candidates unfit or unqualified because a deficient in either
moral character or education. He should strive at all times to
uphold the honor and to maintain the dignity of the profession
and to improve not only to the law but the administration of
justice.
"31. Responsibility for litigation.
`No lawyer is obliged to act either as adviser or advocate for
every person who may wish to become his client. He has the
right to decline employment. Every lawyer upon his own
responsibility must decide what employment he will accept as
counsel, what causes he will bring into court for plaintiffs, what
case he will contest in court for defendants. The responsibility
for advising as to questionable defenses is the lawyers
responsibility. He cannot escape it by urging as an excuse that
he is only following his clients instructions.
"32. The lawyers duty in its last analysis.
`No client, corporate or individual, however powerful nor any
cause, civil or political, however important, is entitled to receive
nor should any lawyer render any service or advise involving
disloyalty to the laws whose ministers we are, or disrespect of
the judicial office, which we are bound to uphold, or corruption
of any person or persons exercising a public office or private
trust, or deception or betrayal of the public. When rendering any
such improper service or advice, the lawyer invites and merits
stern and just condemnation. Correspondingly, he advances
the honor of his profession and the best interest of his client
when he renders service or gives advice tending to impress
upon the client and his undertaking exact compliance with the
strictest principles of moral law. He must also observe and
advice his client to observe the statute law through until a
statute shall have been construed and interpreted by competent
adjudication he is free and is entitled to advise as to its validity
and as to what he conscientiously believes to be its just
meaning and extent. But above all a lawyer will find his highest
honor in a deserved reputation for fidelity to private trust and to
public duty, as an honest man and as a patriotic and loyal
citizen.
[4]
Record No. AC 4426, Report of the Integrated Bar of the
Philippines, Commission on Bar Discipline. Emphasis ours.
[5]
Record No. AC 4429, Omnibus Motion For Reconsideration
and/or New Trial and/or Re-investigation and Motion to
Consolidate Above-Captioned Cases with Corresponding
Answer or Comment, p.7.
[6]
Record No. AC 4429, Annex "12".
A.C. No. 2597 March 12, 1998
GLORITO V. MATURAN, petitioner,
vs.
ATTY. CONRADO S. GONZALES, respondent.
RESOLUTION
ROMERO, J.:
A complaint for disbarment was filed with this Court on October
25, 1983, by Glorito V. Maturan against his counsel, Atty.
Conrado S. Gonzales, charging him with immoral, unethical,
and anomalous acts. The respondent filed his comment thereto
on February 6, 1984. On November 11, 1997, or after thirteen
(13) years, the Board of Governors of the Integrated Bar of the
Philippines submitted their report and recommendation on the
instant case.
The facts, as culled from the records, are as follows:
Spouses Antonio and Gloria Casquejo instituted their son-in-
law, Glorito V. Maturan (herein petitioner), as their attorney-in-
fact, through a Special Power of Attorney (SPA) dated
November 6, 1981. Said SPA authorized Maturan to file
ejectment cases against squatters occupying Lot 1350-A, Psd-
50375, located in General Santos City, as well as criminal
cases against the latter for violation of P.D. 772, again in
connection with said lot. Respondent, Atty. Conrado Gonzales,
prepared and notarized said Special Power of Attorney.
Subsequently, Glorito Maturan engaged the services of
respondent in ejecting several squatters occupying Lot 1350-A,
Psd-50735. While said lot was registered in the name of
Celestino Yokingco, Antonio Casquejo had, however, instituted
a case for reconveyance of property and declaration of nullity
against the former, docketed as Civil Case No. 2067.
As a consequence of his engagement by petitioner, respondent
Gonzales filed Civil Case No. 1783-11 for Forcible Entry and
Damages against several individuals. On February 18, 1983, a
judgment was rendered in favor of petitioner. Petitioner, through
respondent, filed a motion for issuance of a writ of execution on
March 10, 1983.
In the interim, the parties to Civil Case No. 2067 entered into a
compromise agreement, which was judicially approved in a
judgment dated March 28, 1983.
On June 22, 1983, while the motion for issuance of a writ of
execution was pending, and without withdrawing as counsel for
petitioner, respondent filed, on behalf of Celestino Yokingco, et
al., Civil Case No. 2746, an action to annul the judgment
rendered in Civil Case No. 2067. The action was predicated on
the lack of authority on the part of petitioner to represent
17
Antonio and Gloria Casquejo, as no such authorization was
shown to be on record in Civil Case No. 2067. On August 24,
1983, respondent, on behalf of Celestino Yokingco, et al., also
filed Special Civil Case No. 161 for injunction with a prayer for
preliminary injunction, with damages, against petitioner.
Aggrieved by respondent's acceptance of professional
employment from their adversary in Civil Case No. 2067, and
alleging that privileged matters relating to the land in question
had been transmitted by petitioner to respondent in Civil Case
1783-11, petitioner filed an administrative complaint against the
former for immoral, unethical, and anomalous acts and asked
for his disbarment.
Respondent, in a comment dated January 25, 1984, denied
having committed any malicious, unethical, unbecoming,
immoral, or anomalous act against his client. Respondent
declared that he was of the belief that filing a motion for
issuance of a writ of execution was the last and final act in the
lawyer-client relationship between himself and petitioner, and
that his formal withdrawal as counsel for the Casquejos was
unnecessary in order to sever the lawyer-client relationship
between them. Furthermore, he alleged that his acceptance of
employment from Yokingco was for him, an opportunity to
honestly earn a little more for his children's sustenance.
The investigating commissioner of the Integrated Bar of the
Philippines, in his report dated August 21, 1997, found
respondent guilty of representing conflicting interests and
recommended that he be suspended for three (3) years. The
Board of Governors of the IBP adopted and approved the report
and recommendation of the investigating commissioner but
recommended that the suspension be reduced from three (3)
years to one (1) year.
This Court adopts the findings of the investigating
commissioner finding respondent guilty of representing
conflicting interests. It is improper for a lawyer to appear as
counsel for one party against the adverse party who is his client
in a related suit, as a lawyer is prohibited from representing
conflicting interests or discharging inconsistent duties. He may
not, without being guilty of professional misconduct, act as
counsel for a person whose interest conflicts with that of his
present or former client.1 That the representation of conflicting
interest is in good faith and with honest intention on the part of
the lawyer does not make the prohibition inoperative.
The reason for the prohibition is found in the relation of attorney
and client, which is one of trust and confidence of the highest
degree. A lawyer becomes familiar with all the facts connected
with his client's case. He learns from his client the weak points
of the action as well as the strong ones. Such knowledge must
be considered sacred and guarded with care. No opportunity
must be given him to take advantage of the client's secrets. A
lawyer must have the fullest confidence of his client. For if the
confidence is abused, the profession will suffer by the loss
thereof.2
This Court finds respondent's actuations violative of Canon 6 of
the Canons of Professional Ethics which provide in part:
It is unprofessional to represent conflicting interests,
except by express consent of all concerned given
after a full disclosure of the facts. Within the meaning
of this canon, a lawyer represents conflicting interests
when, in behalf of one client, it is his duty to contend
for that which duty to another client requires him to
oppose.
Moreover, respondent's justification for his actions reveal a
patent ignorance of the fiduciary obligations which a lawyer
owes to his client. A lawyer-client relationship is not terminated
by the filing of a motion for a writ of execution. His acceptance
of a case implies that he will prosecute the case to its
conclusion. He may not be permitted to unilaterally terminate
the same to the prejudice of his client.
As to the recommendation that the term of suspension be
reduced from three years to one year, we find the same to be
unwarranted. In similar cases decided by the Supreme Court,
the penalty of two or three years suspension has been imposed
where respondent was found guilty of representing conflicting
interests. In Vda. De Alisbo vs. Jalandoon, Sr.,3 the respondent,
who appeared for complainant in a case for revival of judgment,
even though he had been the counsel of the adverse party in
the case sought to be revived, was suspended for a period of
two years. In Bautista vs. Barrios,4 a suspension of two years
was imposed on respondent Barrios, who had drafted a deed of
partition for petitioner, but who appeared for the other party
therein, when the same was sought to be enforced by
petitioner. In PNB vs. Cedo,5 the Court even suspended the
respondent therein for three years, but only because
respondent not only represented conflicting interests, but also
deliberately intended to attract clients with interests adverse to
his former employer. Finally, in Natan vs. Capule,6 respondent
was suspended for two years after he accepted professional
employment in the very case in which his former client was the
adverse party.
ACCORDINGLY, this Court resolves to MODIFY the IBP
recommendation to suspend respondent for one year and
modifies it to SUSPENSION from the practice of law for TWO
(2) YEARS, effective immediately.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno,
Vitug, Kapunan, Mendoza, Martinez and Quisumbing, JJ.,
concur.
Panganiban and Purisima, JJ., took no part.
EN BANC
[G.R. Nos. 115439-41. July 16, 1997]
PEOPLE OF THE PHILIPPINES, petitioner, vs.
HONORABLE SANDIGANBAYAN, MANSUETO V.
HONRADA, CEFERINO S. PAREDES, JR. and
GENEROSO S. SANSAET, respondents.
DECISION
REGALADO, J.:
Through the special civil action for certiorari at bar,
petitioner seeks the annulment of the resolution of respondent
Sandiganbayan, promulgated on December 22, 1993, which
denied petitioners motion for the discharge of respondent
Generoso S. Sansaet to be utilized as a state witness, and its
resolution of March 7, 1994 denying the motion for
reconsideration of its preceding disposition. [1]
The records show that during the dates material to this
case, respondent Honrada was the Clerk of Court and Acting
Stenographer of the First Municipal Circuit Trial Court, San
Francisco-Bunawan-Rosario in Agusan del Sur. Respondent
Paredes was successively the Provincial Attorney of Agusan
del Sur, then Governor of the same province, and is at present
a Congressman. Respondent Sansaet was a practicing
attorney who served as counsel for Paredes in several
instances pertinent to the criminal charges involved in the
present recourse.
18
The same records also represent that sometime in 1976,
respondent Paredes applied for a free patent over Lot No.
3097-A, Pls-67 of the Rosario Public Land Subdivision
Survey. His application was approved and, pursuant to a free
patent granted to him, an original certificate of title was issued
in his favor for that lot which is situated in the poblacion of San
Francisco, Agusan del Sur.
However, in 1985, the Director of Lands filed an
action[2] for the cancellation of respondent Paredes patent and
certificate of title since the land had been designated and
reserved as a school site in the aforementioned subdivision
survey. The trial court rendered judgment[3] nullifying said
patent and title after finding that respondent Paredes had
obtained the same through fraudulent misrepresentations in his
application. Pertinently, respondent Sansaet served as counsel
of Paredes in that civil case.[4]
Consequent to the foregoing judgment of the trial court,
upon the subsequent complaint of the Sangguniang Bayan and
the preliminary investigation conducted thereon, an information
for perjury[5] was filed against respondent Paredes in the
Municipal Circuit Trial Court.[6] On November 27, 1985, the
Provincial Fiscal was, however, directed by the Deputy Minister
of Justice to move for the dismissal of the case on the
ground inter alia of prescription, hence the proceedings were
terminated.[7] In this criminal case, respondent Paredes was
likewise represented by respondent Sansaet as counsel.
Nonetheless, respondent* Paredes was thereafter haled
before the Tanodbayan for preliminary investigation on the
charge that, by using his former position as Provincial Attorney
to influence and induce the Bureau of Lands officials to
favorably act on his application for free patent, he had violated
Section 3(a) of Republic Act No. 3019, as amended. For the
third time, respondent Sansaet was Paredes counsel of record
therein.
On August 29, 1988, the Tanodbayan, issued a
resolution[8] recommending the criminal prosecution of
respondent Paredes. Atty. Sansaet, as counsel for his
aforenamed co-respondent, moved for reconsideration and,
because of its legal significance in this case, we quote some of
his allegations in that motion:
x x x respondent had been charged already by the
complainants before the Municipal Circuit Court of San
Francisco, Agusan del Sur, went to jail on detention in 1984
under the same set of facts and the same evidence x x x but
said case after arraignment, was ordered dismissed by the
court upon recommendation of the Department of Justice. Copy
of the dismissal order, certificate of arraignment and
the recommendation of the Department of Justice are hereto
attached for ready reference; thus the filing of this case will be a
case of double jeopardy for respondent herein x x x. [9] (Italics
supplied.)
A criminal case was subsequently filed with the
Sandiganbayan[10] charging respondent Paredes with a
violation of Section 3(a) of Republic Act No. 3019, as
amended. However, a motion to quash filed by the defense was
later granted in respondent courts resolution of August 1,
1991[11] and the case was dismissed on the ground of
prescription.
On January 23, 1990, one Teofilo Gelacio, a taxpayer
who had initiated the perjury and graft charges against
respondent Paredes, sent a letter to the Ombudsman seeking
the investigation of the three respondents herein for falsification
of public documents.[12] He claimed that respondent Honrada, in
conspiracy with his herein co-respondents, simulated and
certified as true copies certain documents purporting to be a
notice of arraignment, dated July 1, 1985, and transcripts of
stenographic notes supposedly taken during the arraignment of
Paredes on the perjury charge.[13] These falsified documents
were annexed to respondent Paredes motion for
reconsideration of the Tanodbayan resolution for the filing of a
graft charge against him, in order to support his contention that
the same would constitute double jeopardy.
In support of his claim, Gelacio attached to his letter a
certification that no notice of arraignment was ever received by
the Office of the Provincial Fiscal of Agusan del Sur in
connection with that perjury case; and a certification of
Presiding Judge Ciriaco Ario that said perjury case in his court
did not reach the arraignment stage since action thereon was
suspended pending the review of the case by the Department
of Justice.[14]
Respondents filed their respective counter-affidavits, but
Sansaet subsequently discarded and repudiated the
submissions he had made in his counter-affidavit. In a so-called
Affidavit of Explanations and Rectifications, [15] respondent
Sansaet revealed that Paredes contrived to have the graft case
under preliminary investigation dismissed on the ground of
double jeopardy by making it that the perjury case had been
dismissed by the trial court after he had been arraigned therein.
For that purpose, the documents which were later filed by
respondent Sansaet in the preliminary investigation were
prepared and falsified by his co-respondents in this case in the
house of respondent Paredes. To evade responsibility for his
own participation in the scheme, he claimed that he did so upon
the instigation and inducement of respondent Paredes. This
was intended to pave the way for his discharge as a
government witness in the consolidated cases, as in fact a
motion therefor was filed by the prosecution pursuant to their
agreement.
Withal, in a resolution[16] dated February 24, 1992, the
Ombudsman approved the filing of falsification charges against
all the herein private respondents. The proposal for the
discharge of respondent Sansaet as a state witness was
rejected by the Ombudsman on this evaluative legal position:
x x x Taking his explanation, it is difficult to believe that a lawyer
of his stature, in the absence of deliberate intent to conspire,
would be unwittingly induced by another to commit a crime. As
counsel for the accused in those criminal cases, Atty. Sansaet
had control over the case theory and the evidence which the
defense was going to present. Moreover, the testimony or
confession of Atty. Sansaet falls under the mantle of privileged
communication between the lawyer and his client which may be
objected to, if presented in the trial.
The Ombudsman refused to reconsider that
resolution[17] and, ostensibly to forestall any further controversy,
he decided to file separate informations for falsification of public
documents against each of the herein respondents. Thus, three
criminal cases,[18] each of which named one of the three private
respondents here as the accused therein, were filed in the graft
court.However, the same were consolidated for joint trial in the
Second Division of the Sandiganbayan.
As stated at the outset, a motion was filed by the People
on July 27, 1993 for the discharge of respondent Sansaet as a
state witness. It was submitted that all the requisites therefor,
as provided in Section 9, Rule 119 of the Rules of Court, were
satisfied insofar as respondent Sansaet was concerned. The
basic postulate was that, except for the eyewitness testimony of
respondent Sansaet, there was no other direct evidence to
prove the confabulated falsification of documents by
respondents Honrada and Paredes.
Unfortunately for the prosecution, respondent
Sandiganbayan, hewing to the theory of the attorney-client
privilege adverted to by the Ombudsman and invoked by the
two other private respondents in their opposition to the
prosecutions motion, resolved to deny the desired discharge on
this ratiocination:
From the evidence adduced, the opposition was able to
establish that client and lawyer relationship existed between
Atty. Sansaet and Ceferino Paredes, Jr., before, during and
after the period alleged in the information. In view of such
19
relationship, the facts surrounding the case, and other
confidential matter must have been disclosed by accused
Paredes, as client, to accused Sansaet, as his lawyer in his
professional capacity. Therefore, the testimony of Atty. Sansaet
on the facts surrounding the offense charged in the information
is privileged.[19]
Reconsideration of said resolution having been likewise
denied,[20] the controversy was elevated to this Court by the
prosecution in an original action for the issuance of the
extraordinary writ of certiorari against respondent
Sandiganbayan.
The principal issues on which the resolution of the petition
at bar actually turns are therefore (1) whether or not the
projected testimony of respondent Sansaet, as proposed state
witness, is barred by the attorney-client privilege; and (2)
whether or not, as a consequence thereof, he is eligible for
discharge to testify as a particeps criminis.
I
As already stated, respondent Sandiganbayan ruled that
due to the lawyer-client relationship which existed between
herein respondents Paredes and Sansaet during the relevant
periods, the facts surrounding the case and other confidential
matters must have been disclosed by respondent Paredes, as
client, to respondent Sansaet, as his lawyer. Accordingly, it
found no reason to discuss it further since Atty. Sansaet cannot
be presented as a witness against accused Ceferino S.
Paredes, Jr. without the latters consent.[21]
The Court is of a contrary persuasion. The attorney-client
privilege cannot apply in these cases, as the facts thereof and
the actuations of both respondents therein constitute an
exception to the rule. For a clearer understanding of that
evidential rule, we will first sweep aside some distracting mental
cobwebs in these cases.
1. It may correctly be assumed that there was a
confidential communication made by Paredes to Sansaet in
connection with Criminal Cases Nos. 17791-93 for falsification
before respondent court, and this may reasonably be expected
since Paredes was the accused and Sansaet his counsel
therein. Indeed, the fact that Sansaet was called to witness the
preparation of the falsified documents by Paredes and Honrada
was as eloquent a communication, if not more, than verbal
statements being made to him by Paredes as to the fact and
purpose of such falsification. It is significant that the evidentiary
rule on this point has always referred to any communication,
without distinction or qualification. [22]
In the American jurisdiction from which our present
evidential rule was taken, there is no particular mode by which
a confidential communication shall be made by a client to his
attorney.The privilege is not confined to verbal or written
communications made by the client to his attorney but extends
as well to information communicated by the client to the
attorney by other means.[23]
Nor can it be pretended that during the entire process,
considering their past and existing relations as counsel and
client and, further, in view of the purpose for which such
falsified documents were prepared, no word at all passed
between Paredes and Sansaet on the subject matter of that
criminal act. The clincher for this conclusion is the undisputed
fact that said documents were thereafter filed by Sansaet in
behalf of Paredes as annexes to the motion for reconsideration
in the preliminary investigation of the graft case before the
Tanodbayan.[24]Also, the acts and words of the parties during
the period when the documents were being falsified were
necessarily confidential since Paredes would not have invited
Sansaet to his house and allowed him to witness the same
except under conditions of secrecy and confidence.
2. It is postulated that despite such complicity of Sansaet
at the instance of Paredes in the criminal act for which the latter
stands charged, a distinction must be made between
confidential communications relating to past crimes already
committed, and future crimes intended to be committed, by the
client. Corollarily, it is admitted that the announced intention of
a client to commit a crime is not included within the confidences
which his attorney is bound to respect. Respondent court
appears, however, to believe that in the instant case it is
dealing with a past crime, and that respondent Sansaet is set to
testify on alleged criminal acts of respondents Paredes and
Honrada that have already been committed and consummated.
The Court reprobates the last assumption which is flawed
by a somewhat inaccurate basis. It is true that by now, insofar
as the falsifications to be testified to in respondent court are
concerned, those crimes were necessarily committed in the
past. But for the application of the attorney-client privilege,
however, the period to be considered is the date when the
privileged communication was made by the client to the
attorney in relation to either a crime committed in the past or
with respect to a crime intended to be committed in the
future. In other words, if the client seeks his lawyers advice with
respect to a crime that the former has theretofore committed,
he is given the protection of a virtual confessional seal which
the attorney-client privilege declares cannot be broken by the
attorney without the clients consent. The same privileged
confidentiality, however, does not attach with regard to a crime
which a client intends to commit thereafter or in the future and
for purposes of which he seeks the lawyers advice.
Statements and communications regarding the
commission of a crime already committed, made by a party who
committed it, to an attorney, consulted as such,
are privileged communications. Contrarily, the unbroken stream
of judicial dicta is to the effect that communications between
attorney and client having to do with the clients contemplated
criminal acts, or in aid or furtherance thereof, are not covered
by the cloak of privileges ordinarily existing in reference to
communications between attorney and client. [25] (Emphases
supplied.)
3. In the present cases, the testimony sought to be
elicited from Sansaet as state witness are the communications
made to him by physical acts and/or accompanying words of
Paredes at the time he and Honrada, either with the active or
passive participation of Sansaet, were about to falsify, or in the
process of falsifying, the documents which were later filed in the
Tanodbayan by Sansaet and culminated in the criminal charges
now pending in respondent Sandiganbayan. Clearly, therefore,
the confidential communications thus made by Paredes to
Sansaet were for purposes of and in reference to the crime of
falsification which had not yet been committed in the past by
Paredes but which he, in confederacy with his present co-
respondents, later committed. Having been made for purposes
of a future offense, those communications are outside the pale
of the attorney-client privilege.
4. Furthermore, Sansaet was himself a conspirator in the
commission of that crime of falsification which he, Paredes and
Honrada concocted and foisted upon the authorities. It is well
settled that in order that a communication between a lawyer
and his client may be privileged, it must be for a lawful purpose
or in furtherance of a lawful end. The existence of an unlawful
purpose prevents the privilege from attaching. [26] In fact, it has
also been pointed out to the Court that the prosecution of the
honorable relation of attorney and client will not be permitted
under the guise of privilege, and every communication made to
an attorney by a client for a criminal purpose is a conspiracy or
attempt at a conspiracy which is not only lawful to divulge, but
which the attorney under certain circumstances may be bound
to disclose at once in the interest of justice.[27]
It is evident, therefore, that it was error for respondent
Sandiganbayan to insist that such unlawful communications
intended for an illegal purpose contrived by conspirators are
nonetheless covered by the so-called mantle of privilege. To
prevent a conniving counsel from revealing the genesis of a
crime which was later committed pursuant to a conspiracy,
because of the objection thereto of his conspiring client, would
be one of the worst travesties in the rules of evidence and
practice in the noble profession of law.
20
II
On the foregoing premises, we now proceed to the
consequential inquiry as to whether respondent Sansaet
qualifies, as a particeps criminis, for discharge from the criminal
prosecution in order to testify for the State. Parenthetically,
respondent court, having arrived at a contrary conclusion on the
preceding issue, did not pass upon this second aspect and the
relief sought by the prosecution which are now submitted for
our resolution in the petition at bar. We shall, however, first
dispose likewise of some ancillary questions requiring preludial
clarification.
1. The fact that respondent Sandiganbayan did not fully
pass upon the query as to whether or not respondent Sansaet
was qualified to be a state witness need not prevent this Court
from resolving that issue as prayed for by petitioner. Where the
determinative facts and evidence have been submitted to this
Court such that it is in a position to finally resolve the dispute, it
will be in the pursuance of the ends of justice and the
expeditious administration thereof to resolve the case on the
merits, instead of remanding it to the trial court. [28]
2. A reservation is raised over the fact that the three
private respondents here stand charged in three separate
informations. It will be recalled that in its resolution of February
24, 1992, the Ombudsman recommended the filing of criminal
charges for falsification of public documents against all the
respondents herein. That resolution was affirmed but,
reportedly in order to obviate further controversy, one
information was filed against each of the three respondents
here, resulting in three informations for the same acts of
falsification.
This technicality was, however, sufficiently explained
away during the deliberations in this case by the following
discussion thereof by Mr. Justice Davide, to wit:
Assuming no substantive impediment exists to block Sansaets
discharge as state witness, he can, nevertheless, be
discharged even if indicted under a separate information. I
suppose the three cases were consolidated for joint trial since
they were all raffled to the Second Division of the
Sandiganbayan. Section 2, Rule XV of the Revised Rules of the
Sandiganbayan allows consolidation in only one Division of
cases arising from the same incident or series of incidents, or
involving common questions of law and fact. Accordingly, for all
legal intents and purposes, Sansaet stood as co-accused and
he could be discharged as state witness. It is of no moment that
he was charged separately from his co-accused. While Section
9 of Rule 119 of the 1985 Rules of Criminal Procedure uses the
word jointly, which was absent in the old provision, the
consolidated and joint trial has the effect of making the three
accused co-accused or joint defendants, especially considering
that they are charged for the same offense. In criminal law,
persons indicted for the same offense and tried together are
called joint defendants.
As likewise submitted therefor by Mr. Justice Francisco
along the same vein, there having been a consolidation of the
three cases, the several actions lost their separate identities
and became a single action in which a single judgment is
rendered, the same as if the different causes of action involved
had originally been joined in a single action. [29]
Indeed, the former provision of the Rules referring to the
situation (w)hen two or more persons are charged with the
commission of a certain offense was too broad and indefinite;
hence the word joint was added to indicate the identity of the
charge and the fact that the accused are all together charged
therewith substantially in the same manner in point of
commission and time. The word joint means common to two or
more, as involving the united activity of two or more, or done or
produced by two or more working together, or shared by or
affecting two or more.[30] Had it been intended that all the
accused should always be indicted in one and the same
information, the Rules could have said so with facility, but it did
not so require in consideration of the circumstances obtaining in
the present case and the problems that may arise from
amending the information. After all, the purpose of the Rule can
be achieved by consolidation of the cases as an alternative
mode.
2. We have earlier held that Sansaet was a conspirator in
the crime of falsification, and the rule is that since in a
conspiracy the act of one is the act of all, the same penalty
shall be imposed on all members of the conspiracy. Now, one
of the requirements for a state witness is that he does not
appear to be the most guilty.[31] not that he must be the least
guilty[32] as is so often erroneously framed or submitted. The
query would then be whether an accused who was held guilty
by reason of membership in a conspiracy is eligible to be a
state witness.
To be sure, in People vs. Ramirez, et al.[33] we find this
obiter:
It appears that Apolonio Bagispas was the real mastermind. It is
believable that he persuaded the others to rob Paterno, not to
kill him for a promised fee. Although he did not actually commit
any of the stabbings, it was a mistake to discharge Bagispas as
a state witness. All the perpetrators of the offense, including
him, were bound in a conspiracy that made them equally guilty.
However, prior thereto, in People vs. Roxas, et al., [34] two
conspirators charged with five others in three separate
informations for multiple murder were discharged and used as
state witnesses against their confederates. Subsequent thereto,
in Lugtu, et al. vs. Court of Appeals, et al.,[35] one of the co-
conspirators was discharged from the information charging him
and two others with the crime of estafa. The trial court found
that he was not the most guilty as, being a poor and ignorant
man, he was easily convinced by his two co-accused to open
the account with the bank and which led to the commission of
the crime.
On appeal, this Court held that the finding of respondent
appellate court that Lugtu was just as guilty as his co-accused,
and should not be discharged as he did not appear to be not
the most guilty, is untenable. In other words, the Court took into
account the gravity or nature of the acts committed by the
accused to be discharged compared to those of his co-
accused, and not merely the fact that in law the same or equal
penalty is imposable on all of them.
Eventually, what was just somehow assumed but not
explicitly articulated found expression in People vs. Ocimar, et
al.,[36] which we quote in extenso:
Ocimar contends that in the case at bar Bermudez does not
satisfy the conditions for the discharge of a co-accused to
become a state witness. He argues that no accused in a
conspiracy can lawfully be discharged and utilized as a state
witness, for not one of them could satisfy the requisite of
appearing not to be the most guilty. Appellant asserts that since
accused Bermudez was part of the conspiracy, he is equally
guilty as the others.
We do not agree. First, there is absolute necessity for the
testimony of Bermudez. For, despite the presentation of four (4)
other witnesses, none of them could positively identify the
accused except Bermudez who was one of those who pulled
the highway heist which resulted not only in the loss of cash,
jewelry and other valuables, but even the life of Capt. Caeba,
Jr. It was in fact the testimony of Bermudez that clinched the
case for the prosecution. Second, without his testimony, no
other direct evidence was available for the prosecution to prove
the elements of the crime. Third, his testimony could be, as
indeed it was, substantially corroborated in its material points
as indicated by the trial court in its well-reasoned
decision. Fourth, he does not appear to be the most guilty. As
the evidence reveals, he was only invited to a drinking party
without having any prior knowledge of the plot to stage a
highway robbery. But even assuming that he later became part
of the conspiracy, he does not appear to be the most
21
guilty. What the law prohibits is that the most guilty will be set
free while his co-accused who are less guilty will be sent to
jail. And by most guilty we mean the highest degree of
culpability in terms of participation in the commission of the
offense and not necessarily the severity of the penalty
imposed. While all the accused may be given the same penalty
by reason of conspiracy, yet one may be considered least guilty
if We take into account his degree of participation in the
perpetration of the offense. Fifth, there is no evidence that he
has at any time been convicted of any offense involving moral
turpitude.
xxx
Thus, We agree with the observations of the Solicitor General
that the rule on the discharge of an accused to be utilized as
state witness clearly looks at his actual and individual
participation in the commission of the crime, which may or may
not have been perpetrated in conspiracy with the other
accused. Since Bermudez was not individually responsible for
the killing committed on the occasion of the robbery except by
reason of conspiracy, it cannot be said then that Bermudez
appears to be the most guilty. Hence, his discharge to be a
witness for the government is clearly warranted. (Italics ours.)
The rule of equality in the penalty to be imposed upon
conspirators found guilty of a criminal offense is based on the
concurrence of criminal intent in their minds and translated into
concerted physical action although of varying acts or degrees of
depravity. Since the Revised Penal Code is based on the
classical school of thought, it is the identity of the mens
rea which is considered the predominant consideration and,
therefore, warrants the imposition of the same penalty on the
consequential theory that the act of one is thereby the act of all.
Also, this is an affair of substantive law which should not
be equated with the procedural rule on the discharge
of particeps criminis. This adjective device is based on other
considerations, such as the need for giving immunity to one of
them in order that not all shall escape, and the judicial
experience that the candid admission of an accused regarding
his participation is a guaranty that he will testify truthfully. For
those reasons, the Rules provide for certain qualifying criteria
which, again, are based on judicial experience distilled into a
judgmental policy.
III
The Court is reasonably convinced, and so holds, that the
other requisites for the discharge of respondent Sansaet as a
state witness are present and should have been favorably
appreciated by the Sandiganbayan.
Respondent Sansaet is the only cooperative eyewitness
to the actual commission of the falsification charged in the
criminal cases pending before respondent court, and the
prosecution is faced with the formidable task of establishing the
guilt of the two other co-respondents who steadfastly deny the
charge and stoutly protest their innocence. There is thus no
other direct evidence available for the prosecution of the case,
hence there is absolute necessity for the testimony of Sansaet
whose discharge is sought precisely for that purpose. Said
respondent has indicated his conformity thereto and has, for the
purposes required by the Rules, detailed the substance of his
projected testimony in his Affidavit of Explanations and
Rectifications.
His testimony can be substantially corroborated on its
material points by reputable witnesses, identified in the basic
petition with a digest of their prospective testimonies, as
follows: Judge Ciriaco C. Ario, Municipal Circuit Trial Court in
San Francisco, Agusan del Sur; Provincial Prosecutor and
Deputized Ombudsman Prosecutor Claudio A. Nistal; Teofilo
Gelacio, private complainant who initiated the criminal cases
through his letter-complaint; Alberto Juvilan of the Sangguniang
Bayan of San Fernando, Agusan del Sur, who participated in
the resolution asking their Provincial Governor to file the
appropriate case against respondent Paredes, and Francisco
Macalit, who obtained the certification of non-arraignment from
Judge Ario.
On the final requirement of the Rules, it does not appear
that respondent Sansaet has at any time been convicted of any
offense involving moral turpitude. Thus, with the confluence of
all the requirements for the discharge of this respondent, both
the Special Prosecutor and the Solicitor General strongly urge
and propose that he be allowed to testify as a state witness.
This Court is not unaware of the doctrinal rule that, on this
procedural aspect, the prosecution may propose but it is for the
trial court, in the exercise of its sound discretion, to determine
the merits of the proposal and make the corresponding
disposition. It must be emphasized, however, that such
discretion should have been exercised, and the disposition
taken on a holistic view of all the facts and issues herein
discussed, and not merely on the sole issue of the applicability
of the attorney-client privilege.
This change of heart and direction respondent
Sandiganbayan eventually assumed, after the retirement of two
members of its Second Division [37]and the reconstitution
thereof. In an inversely anticlimactic Manifestation and
Comment [38] dated June 14, 1995, as required by this Court in
its resolution on December 5, 1994, the chairman and new
members thereof [39]declared:
4) That the questioned Resolutions of December 22, 1993 and
March 7, 1994 upon which the Petition for Certiorari filed by the
prosecution are based, was penned by Associate Justice
Narciso T. Atienza and concurred in by the undersigned and
Associate Justice Augusto M. Amores;
5) That while the legal issues involved had been already
discussed and passed upon by the Second Division in the
aforesaid Resolution, however, after going over the arguments
submitted by the Solicitor-General and re-assessing Our
position on the matter, We respectfully beg leave of the
Honorable Supreme Court to manifest that We are amenable to
setting aside the questioned Resolutions and to grant the
prosecutions motion to discharge accused Generoso Sansaet
as state witness, upon authority of the Honorable Supreme
Court for the issuance of the proper Resolution to that effect
within fifteen (15) days from notice thereof.
WHEREFORE, the writ of certiorari prayed for is hereby
granted SETTING ASIDE the impugned resolutions and
ORDERING that the present reliefs sought in these cases by
petitioner be allowed and given due course by respondent
Sandiganbayan.
SO ORDERED.
Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco and Panganiban, JJ., concur.
Hermosisima, Jr. and Torres, Jr., JJ., on leave.
E. RULE ON MULTIPLICATION OF SUITS AND FORUM
SHOPPING
EN BANC
[A.C. No. 4058. March 12, 1998]
BENGUET ELECTRIC COOPERATIVE, INC. complainant,
vs. ATTY. ERNESTO B. FLORES, respondent.
22
DECISION
PANGANIBAN, J.:
The profession of law exacts the highest standards from
its members and brooks no violation of its code of
conduct. Accordingly, a lawyer who trifles with judicial
processes, engages in forum shopping and blatantly lies in his
pleadings must be sanctioned.
The Case
This is an administrative complaint against Atty. Ernesto
Flores filed by Benguet Electric Cooperative, Inc. (BENECO)
before this Court on July 5, 1993, seeking his removal or
suspension from the bar for forum shopping, which amounted
to grave misconduct, x x x unduly delaying the administration of
justice, and violating with impunity his oath of office and
applicable laws and jurisprudence.[1]
After the respondent submitted his Comment, dated
August 21, 1993, we referred the case to the Integrated Bar of
the Philippines (IBP) on September 27, 1993 for investigation,
report and recommendation. On August 15, 1997, we received
a resolution from the IBP Board of Governors, finding
respondent guilty of violating Canons 10 and 12 of the Code of
Professional Responsibility and recommending his suspension
from the practice of law for a period of six months, viz:
RESOLUTION NO. XII-
97-149
Adm. Case NO. 4058
Benguet Electric
Cooperative, Inc. vs.
Atty. Ernesto B. Flores
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, hereinmade [sic] part of this
Resolution/Decision as Annex A; and finding the
recommendation therein to be fully supported by the
evidence on record and the applicable laws and rules,
Respondent Atty. Ernesto Flores is hereby SUSPENDED
from the practice of law for six (6) months for violating the
provision of Canon[s] 10 and 12 of the Code of
Professional Responsibility.[2]
The Facts
Because the parties[3] agreed to dispense with the
presentation of testimonial evidence, the case was submitted
for resolution on the basis of their documentary evidence. As
found by Investigating Commissioner Plaridel C. Jose, the facts
are as follows:
x x x. On February 25, 1993, Labor Arbiter
Irenarco Rimando of the National Labor Relations
Commission, Regional Arbitration Branch, Cordillera
Administrative Region, Baguio City, issued a Writ of
Execution (x x x) in NLRC Case No. RAB-1-0313-84 to
enforce the decision rendered by the Supreme Court on
May 18, 1992 in G.R. No. 89070 (Benguet Electric
Cooperative, Inc. vs. NLRC, 209 SCRA 55). The Writ of
Execution was issued on motion of Benguet Electric
Cooperative (BENECO for short) to collect the amount
ofP344,000.00 which it paid to Peter Cosalan during the
pendency of the case before the Supreme Court, on the
basis of its decision ordering the respondent board
members to reimburse petitioner BENECO any amount
that it may be compelled to pay to respondent Cosalan by
virtue of the decision of Labor Arbiter Amado T. Adquilen.
After issuance of the writ of execution, the
respondent, as new counsel for the losing litigant-
members of the BENECO Board of Directors, filed a
Motion for Clarification with the Third Division of the
Supreme Court in G.R. No. 89070, the minute resolution
to wit: to note without action the aforesaid motion.
Thereafter, the respondent instituted a suit
docketed as Civil Case NO. 2738-R (x x x) with the
Regional Trial Court, Branch 7, Baguio City, seeking to
enjoin the defendants Clerk of Court, et al. from levying
on their properties in satisfaction of the said writ of
execution. That case, however, was dismissed by the
Presiding Judge Clarence Villanueva in his Order dated
March 18, 1993 (x x x).
Accordingly, the Office of the Clerk of Court, MTC,
Baguio City, through Sheriff III Wilfredo Mendez,
proceeded to levy on the properties of the losing board
members of BENECO. Thus, a sale at public auction was
set on June 1, 1993, at 10:00 oclock in the morning in
front of the Baguio City Hall, per Sheriffs Notice of Sale
dated May 4, 1993 (x x x), of the properties of Abundio
Awal and Nicasio Aliping[,] two of the losing members of
the Board of Directors of BENECO in the aforementioned
case.
Respondent claims in his comment (x x x) that
Branch 7, motu proprio, dismissed Civil Case No. 2738-R
for lack of jurisdiction on March 18,1993, which dismissal
was [sic] became final due to respondents failure to
perfect an appeal therefrom which claim according to the
complainant, constitute[s] deliberate misrepresentation, if
not falsehood, because the respondent indeed interposed
an appeal such that on May 11, 1993, the RTC 7 of
Baguio City transmitted the entire record of Civil Case
No. 2738-R to the Court of Appeals per certified machine
copy of the letter transmittal of same date (x x x).
While respondent never essentially intended to
assail the issuance by the NLRC of the Writ of Execution
x x x nor sought to undo it (x x x) the complaint in Civil
Case No. 2738-R which he filed prays for the immediate
issuance of a temporary restraining order and/or
preliminary writ of injunction for defendants Clerk of Court
and Ex-Officio City Sheriff to cease and desist from
enforcing the execution and levy of the writ of execution
issued by the NLRC-CAR, pending resolution of the main
action in said court (x x x) which complainant likewise
claims as an unprocedural maneuver to frustrate the
execution of the decision of the Supreme Court in G.R.
No. 89070 in complete disregard of settled jurisprudence
that regular courts have no jurisdiction to hear and decide
questions which arise and are incidental to the
enforcement of decisions, orders and awards rendered in
labor cases citing the case of Cangco vs. CA, 199 SCRA
677, a display of gross ignorance of the law.
On May 26, 1993, respondent again filed for Abundio
Awal and Nicasio Aliping with the Regional Trial Court,
Branch 9, La Trinidad, Benguet, separate complaints for
Judicial Declaration of Family Home Constituted, Ope
Lege, and thus Exempt from Levy and Execution the
subject properties with Damages, etc. docketed as Civil
Cases Nos. 93-F-0414 (x x x) and 93-F-0415 (x x x),
which are essentially similar actions to enjoin the
enforcement of the judgment rendered in NLRC Case No.
RAB-1-0313-84. He also filed an urgent Motion Ex-parte
(x x x) praying for temporary restraining order in these
two (2) cases.
23
The complainant further alleges that respondents
claim for damages against the defendant Sheriff is
another improper and unprocedural maneuver which is
likewise a violation of respondents oath not to sue on
groundless suit since the said Sheriff was merely
enforcing a writ of execution as part of his job.
Recommendation of the IBP
As noted earlier, Investigating Commissioner Plaridel C.
Jose recommended, and the IBP Board of Governors
concurred, that respondent be suspended from the bar for six
months for:
1. Falsehood, for stating in his comment before this
Court that the order of the RTC dismissing the
complaint in Civil Case No. 2738-R was not
appealed on time
2. Failure to comply with Supreme Court Circular
No. 28-91 on forum shopping
Commissioner Jose ratiocinated:
A cursory glance of (sic) x x x the complaint filed by the
respondent in Civil Case No. 2738-R before the RTC of Baguio
City, which complaint was signed and verified under oath by the
respondent, reveals that it lacks the certification required by
Supreme Court Circular No. 28-91 which took effect on January
1, 1992 to the effect that to the best of his knowledge, no such
action or proceeding is pending in the Supreme Court, Court of
Appeals or different divisions thereof or any tribunal or
agency. If there is any other action pending, he must state the
status of the same. If he should learn that a similar action or
proceeding has been filed or pending before the Supreme
Court, Court of Appeals or different divisions thereof or any
tribunal or agency[,] he should notify the court, tribunal or
agency within five (5) days from such notice.
Among the other penalties, the said circular further provides
that the lawyer may also be subjected to disciplinary
proceedings for non-compliance thereof.
In sum, it is clear that the respondent violated the provisions of
Canon[s] 10 and 12 of the Code of Professional Responsibility
under which the lawyer owes candor, fairness and good faith to
the court and exert[s] every effort and consider[s] it his duty to
assist in the speedy and efficient administration of justice.[4]
This Courts Ruling
We adopt and affirm the recommendation of the IBP
suspending the respondent from the bar, but we increase the
period from six (6) months to one (1) year and six (6) months.
Forum Shopping
Circular No. 28-91,[5] dated September 4, 1991 which
took effect on January 1, 1992, requires a certificate of non-
forum shopping to be attached to petitions filed before this
Court and the Court of Appeals. This circular was revised on
February 8, 1994. The IBP found that the respondent had
violated it, because the complaint he filed before the RTC of
Baguio City lack[ed] the certification required by Supreme Court
Circular No. 28-91.[6]
 We distinguish. Respondents failure to attach the said
certificate cannot be deemed a violation of the aforementioned
circular, because the said requirement applied only to petitions
filed with this Court and the Court of Appeals. [7] Likewise
inapplicable is Administrative Circular No. 04-94 dated
February 8, 1994 which extended the requirement of a
certificate of non-forum shopping to all initiatory pleadings filed
in all courts and quasi-judicial agencies other than this Court
and the Court of Appeals. Circular No. 04-94 became effective
only on April 1, 1994, but the assailed complaint for injunction
was filed on March 18, 1993, and the petition for the
constitution of a family home was instituted on May 26, 1993.
Be that as it may, respondent is still guilty of forum
shopping. In Chemphil Export and Import Corporation vs. Court
of Appeals,[8] this Court declared that (t)he rule against forum
shopping has long been established and subsequent
circulars[9] of this Court merely formalized the prohibition and
provided the appropriate penalties against transgressors. The
prohibition is found in Section 1(e) of Rule 16 and Section 4 of
Rule 2 of the 1964 Rules of Court, which provide:
SECTION 1. Grounds. -- Within the time for pleading, a motion
to dismiss the action may be made on any of the following
grounds:
xxx xxx xxx
(e) That there is another action pending between the same
parties for the same cause;
xxx xxx xxx[10]
SEC. 4. Effect of splitting a single cause of action. -- If two or
more complaints are brought for different parts of a single
cause of action, the filing of the first may be pleaded in
abatement of the other or others, in accordance with section 1
(e) of Rule 16, and a judgment upon the merits in any one is
available as a bar in the others.[11]
The prohibition is also contained in Circular No. 28-
91. This circular did not only require that a certification of non-
forum shopping be attached to the petitions filed before this
Court or the Court of Appeals; it also decreed that forum
shopping constituted direct contempt of court and could subject
the offending lawyer to disciplinary action. The third paragraph
thereof reads:
3. Penalties.
(a) Any violation of this Circular shall be a cause for the
summary dismissal of the multiple petition or complaint.
(b) Any willful and deliberate forum shopping by any party and
his lawyer wit the filing of multiple petitions and complaints to
ensure favorable action shall constitute direct contempt of
court.
(c) The submission of false certification under Par. 2 of the
Circular shall likewise constitute contempt of Court, without
prejudice to the filing of criminal action against the guilty
party. The lawyer may also be subjected to disciplinary
proceedings. (Underscoring supplied.)
The foregoing were substantially reproduced in Revised
Circular No. 28-91[12] and Administrative Circular No. 04-94.[13]
In a long line of cases, this Court has held that forum
shopping exists when, as a result of an adverse opinion in one
forum, a party seeks a favorable opinion (other than by appeal
or certiorari) in another,[14] or when he institutes two or more
actions or proceedings grounded on the same cause, on the
gamble that one or the other court would make a favorable
24
disposition.[15] The most important factor in determining the
existence of forum shopping is the vexation caused the courts
and parties-litigants by a party who asks different courts to rule
on the same or related causes or grant the same or
substantially the same reliefs.[16]
After this Court rendered its Decision[17] in Benguet
Electric Cooperative, Inc. vs. National Labor Relations
Commission, et al.[18] and upon motion of BENECO, Labor
Arbiter Irenarco R. Rimando issued a writ of
execution[19] ordering the clerk of court and ex officio city sheriff
of the Municipal Trial Court of Baguio City to levy on and sell at
public auction personal and real property of the members of the
Board of Directors of BENECO.
On March 18, 1993, Respondent Flores, acting as
counsel for BENECO Board Members Victor Laoyan, Nicasio
Aliping, Lorenzo Pilando and Abundio Awal, filed with the RTC
an injunction suit praying for the issuance of a temporary
restraining order (TRO) to preserve the status quo as now
obtaining between the parties, as well as a writ of preliminary
preventive injunction ordering the clerk of court and the ex
officio city sheriff of the MTC of Baguio to cease and desist
from enforcing by execution and levy the writ of execution from
the NLRC-CAR, pending resolution of the main action raised in
court.[20]
When this injunction case was dismissed, Respondent
Flores filed with another branch of the RTC two identical but
separate actions both entitled Judicial Declaration of Family
Home Constituted, ope lege, Exempt from Levy and Execution;
with Damages, etc., docketed as Civil Case Nos. 93-F-0414
and 93-F-0415.[21] The said complaints were supplemented by
an Urgent Motion Ex Parte[22] which prayed for an order to
temporarily restrain Sheriff Wilfredo V. Mendez from proceeding
with the auction sale of plaintiffs property to avoid rendering
ineffectual and functus [oficio] any judgment of the court later in
this [sic] cases, until further determined by the court.
Civil Case Nos. 93-F-0414 and 93-F-0415 are groundless
suits. Modequillo vs. Breva,[23] reiterated in Manacop vs. Court
of Appeals,[24] shows the frivolity of these proceedings:
Under the Family Code, a family home is deemed constituted
on a house and lot from the time it is occupied as a family
residence. There is no need to constitute the same judicially or
extrajudicially as required in the Civil Code. If the family actually
resides in the premises, it is, therefore, a family home as
contemplated by law. Thus, the creditors should take the
necessary precautions to protect their interest before extending
credit to the spouses or head of the family who owns the home.
xxx.
The exemption provided as aforestated is effective from the
time of the constitution of the family home as such, and lasts so
long as any of its beneficiaries actually resides therein.
Adhering to the Courts declaration in said cases, the
subject properties are deemed constituted as family homes by
operation of law under Article 153 of the Family Code.
The suits for the constitution of a family home were not
only frivolous and unnecessary; they were clearly asking for
reliefs identical to the prayer previously dismissed by another
branch of the RTC, i.e., to forestall the execution of a final
judgment of the labor arbiter. That they
were filed ostensibly for the judicial declaration of a family home
was a mere smoke screen; in essence, their real objective was
to restrain or delay the enforcement of the writ of execution. In
his deliberate attempt to obtain the same relief in two different
courts, Respondent Flores was obviously shopping for a
friendly forum which would capitulate to his improvident plea for
an injunction and was thereby trifling with the judicial
process.[25]
We remind the respondent that, under the Code of
Professional Responsibility,[26] he had a duty to assist in the
speedy and efficient administration of justice. [27] The Code also
enjoins him from unduly delaying a case by impeding the
execution of a judgment or by misusing court processes. [28]
In consonance with Millare vs. Montero[29] and Garcia vs.
Francisco,[30] respondent should be suspended from the
practice of law for one year. In Millare, the respondent filed with
different courts a total of six appeals, complaints and petitions
which frustrated and delayed the execution of a final
judgment. Holding that respondent made a mockery of the
judicial processes and disregarded canons of professional
ethics in intentionally frustrating the rights of a litigant in whose
favor a judgment in the case was rendered [and], thus, abused
procedural rules to defeat the ends of substantial justice,[31] this
Court suspended the respondent from the practice of law for
one year.
In Garcia, the respondent was also suspended for one
year from the practice of law, for violating the proscription
against forum shopping. This Court held that he deserve[d] to
be sanctioned, not only as a punishment for his misconduct but
also as a warning to other lawyers who may be influenced by
his example.[32]
Falsehood
The investigating commissioner also held respondent
liable for committing a falsehood because, in this administrative
case, he stated in his comment that he had not perfected an
appeal on the dismissal of his petition for injunction. In his said
comment, the respondent stated:
Branch 7 (of the RTC) motu proprio, dismissed the case for lack
of jurisdiction on March 18, 1993. Not having perfected an
appeal on the dismissal, the order of dismissal became final
under the Rules 15 days after its receipt by respondent on
record, or before April 6, 1993. So that today this case is no
longer pending.
xxx.
It should be noted that when Civil Case Nos. 93-F-0414 and 93-
F-0415 for family homes and damages were filed in the court
below on May 26, 1993, Civil Case NO. 2378-R which seems to
give basis to the present Complaint was deemed terminated,
there being no appeal formally taken and perfected in
accordance with the Rules.
xxx.
And that precisely was the primal reason why respondent
decided not to appeal any further anymore [sic] the order of
dismissal for lack of jurisdiction of the court below in Civil Case
No. 2738, and let it be deemed final by the Rules and
jurisprudence.[33] (Underscoring supplied.)
The indelible fact, however, is that respondent did file an
appeal which was perfected later on. The original records of the
injunction suit had been transmitted to the appellate
court.[34] Moreover, the Court of Appeals issued a resolution
dismissing the appeal.[35] Thus, in denying that he had
appealed the decision of the RTC, respondent was making a
false statement.
Respondent argues that the withdrawal of his appeal
means that no appeal was made under Section 2 of Rule 50 of
the Rules of Court.The pertinent provisions of Rule 50[36]read:
SEC. 2. Effect of dismissal.-- Fifteen (15) days after the
dismissal of an appeal, the clerk shall return to the court below
the record on appeal with a certificate under the seal of the
court showing that the appeal has been dismissed. Upon the
25
receipt of such certificate in the lower court the case shall stand
there as though no appeal had ever been taken, and the
judgment of the said court may be enforced with the additional
costs allowed by the appellate court upon dismissing the
appeal.
xxx xxx xxx
SEC. 4. Withdrawal of appeal.-- An appeal may be withdrawn
as of right at any time before the filing of appellees brief. x x
x. The withdrawal of an appeal shall have the same effect as
that of a dismissal in accordance with section 2 of this rule.
Respondents explanation misses the point. True, he
withdrew his appeal. But it is likewise true that he had actually
filed an appeal, and that this was perfected. False then is his
statement that no appeal was perfected in the injunction
suit. Worse, he made the statement before this Court in order to
exculpate himself, though in vain, from the charge of forum
shopping.
A lawyer must be a disciple of truth. Under the Code of
Professional Responsibility, he owes candor, fairness and good
faith to the courts.[37] He shall neither do any falsehood, nor
consent to the doing of any. He also has a duty not to mislead
or allow the courts to be misled by any artifice. [38]
For this offense, we suspend the respondent from the
practice of law for another year. True, in Ordonio vs.
Eduarte,[39] Porac Trucking, Inc. vs. Court of
Appeals[40] and Erectors, Inc. vs. NLRC,[41] we imposed a
suspension of only six months for a similar malfeasance. But in
Flores case, his falsehood is aggravated by its brazenness, for
it was committed in an attempt, vain as it was, to cover up his
forum shopping.
Before we close, we note that this simple case was
referred to the IBP on September 27, 1993. It was deemed
submitted for resolution per the investigating commissioners
order dated May 10, 1995. However, the investigating
commissioner submitted his report only on May 5,
1997. Moreover, the IBP transmitted its recommendation to the
Court only through a letter dated July 31, 1997, which was
received by the Office of the Bar Confidant on August 15,
1997. Why it took the IBP almost four years to finish its
investigation of the case and over two years from the date the
parties filed their last pleadings to resolve it escapes us. After
all, the case did not require any trial-type investigation, and the
parties submitted only documentary evidence to prove or rebut
their respective cases. Thus, we find it opportune to urge the
IBP to hasten the disposition of administrative cases and to
remind it that this Court gives it only ninety days to finish its
investigation, report and recommendation. Should it require
more time, it should file with the Court a request for extension,
giving the reason for such request.
WHEREFORE, for trifling with judicial processes by
resorting to forum shopping, Respondent Ernesto B. Flores is
hereby SUSPENDEDfrom the practice of law for a period of
ONE (1) YEAR and, for violating his oath and the Canon of
Professional Responsibility to do no falsehood, he
is SUSPENDED for another period of ONE (1) YEAR, resulting
in a total period of TWO (2) YEARS, effective upon finality of
this Decision. He is WARNED that a repetition of a similar
misconduct will be dealt with more severely.
Let a copy of this Decision be included in his files which
are with the Office of the Bar Confidant, and circularized to all
courts and to the Integrated Bar of the Philippines.
SO ORDERED.
Narvasa, CJ. Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza, Martinez,
Quisumbing and Purisima, JJ., concur.
FIRST DIVISION
[G.R. No. L-75349. October 13, 1986.]
ROSALINA BUAN, RODOLFO TOLENTINO, TOMAS
MERCADO, CECILIA MORALES, LIZA OCAMPO, Quiapo
Church Vendors, for themselves and all others similarly
situated as themselves, Petitioners, v. OFFICER-IN-
CHARGE GEMILIANO C. LOPEZ, JR., OFFICE OF THE
MAYOR OF MANILA, Respondent.
DECISION
NARVASA, J.:
On August 5, 1986 petitioners instituted in this Court a special
civil action for prohibition to the end that respondent Gemiliano
C. Lopez, Jr., acting as Mayor of the City of Manila, be
"perpetually prohibited from arbitrarily, whimsically and
capriciously revoking or cancelling . . . their licenses or permits
(as hawkers or street vendors) and threatening the physical
demolition of their respective business stalls in the places
specified in such licenses or permits. 1 They also sought a
temporary restraining order in view of Mayor Lopez actual
threats of physical demolition of their respective small business
establishment at 12:00 noon today." This the Court granted on
the same day. 2 factual premises, the Court en banc had occasion to condemn
Petitioners claim to be five of about 130 "licensed and duly
authorized vendors of . . . religious articles, medicine herbs and
plants around the Quiapo Church, . . . Manila," bringing suit for
themselves and all others similarly situated as themselves." 3
They allege that their licenses "were revoked or cancelled (by
respondent Mayor) for reasons unknown to them which is
tantamount to deprivation of property without due process of
laws," written notice of such cancellation having been served
on them on or about May 30 (actually May 3), 1986; that the
revocation of their licenses was beyond respondent Mayors
competence, since Section 171 (n) of the Local Government
Code (B.P. Blg. 337) authorizes the same only "for violation of
the law or ordinances or conditions upon which they have been
granted," and no such violation had been committed by them; 4
but this notwithstanding, respondent Mayor "bad given (them)
an ultimatum of 7:00 up to 12:00 oclock in the afternoon" (of
August 5, 1986) to vacate the premises where their respective
stalls are situated or suffer physical demolition thereof." 5
In the light of the facts disclosed by the pleadings 6 and at the
hearing of the case on August 13, 1986, the petition must be
given short shrift.chanroblesvirtualawlibrary
The action must in the first place be abated on the ground of lis
pendens, or more correctly, auter action pendant; pendency of
another action between the same parties for the same cause. 7
It appears that on July 7, 1986 there was filed in the Regional
Trial Court of Manila, docketed as Civil Case No. 86-36563, a
special civil action of "prohibition with preliminary injunction"
against Acting Manila City Mayor Gemiliano Lopez, Jr. 8 It was
filed by Samahang Kapatiran Sa Hanapbuhay Ng Bagong
Lipunan, Inc." (hereafter, simply "Samahan") composed,
according to the petition, of "some 300 individual owners and
operators of separate business stalls . . . mostly at the
periphery immediately beyond the fence of the Quiapo Church."
The president of the Samahan is Rosalina Buan and its Press
Relations Officer, Liza Ocampo. 9 Rosalina Buan and Liza
Ocampo are two of the five petitioners in the case at bar, 10
described in the petition before this Court as suing "for
themselves and all others similarly situated as themselves" :
i.e., vendors "around the Quiapo Church." 11 The three other
petitioners also appear to be Samahan members. 12
The petition in Case No. 86-36563 is grounded on the same
facts as those in the case at bar: the members of the Samahan
had been legitimately engaged "in their respective business of
26
selling sundry merchandise, more particularly religious articles,
flowers and ornamental plants, and medicinal herbs;" they had
been religiously paying "the corresponding license and permit
fees imposed by prevailing ordinances of the City of Manila,"
but this notwithstanding they had been given written notice
dated May 3, 1986 emanating from the Mayors Office, advising
of the cancellation of their permits and their possible relocation
to another site; and these acts "are unjust, illegal, arbitrary,
oppressive and constitute grave abuse of discretion on the part
of the Respondent."cralaw virtua1aw library
There thus exists between the action before this Court and RTC
Case No. 86-36563 identity of parties, or at least such parties
as represent the same interests in both actions, as well as
identity of rights asserted and relief prayed for, the relief being
founded on the same facts, and the identity on the two
preceding particulars is such that any judgment rendered in the
other action, will regardless of which party is successful,
amount to res adjudicata in the action under consideration: all
the requisites, in fine, of auter action pendant. 13
Indeed, the petitioners in both actions, described in their
petitions as vendors of religious articles, herbs and plants, and
sundry merchandise around the Quiapo Church or its
"periphery," have incurred not only the sanction of dismissal of
their case before this Court in accordance with Rule 16 of the
Rules of Court, but also the punitive measure of dismissal of
both their actions, that in this Court and that in the Regional
Trial Court as well. Quite recently, upon substantially identical
and penalize the act of litigants of filing the same suit in
different courts, aptly described as "forum-shopping,"
viz:jgc:chanrobles.com.ph
"The acts of petitioners constitute a clear case of forum-
shopping, an act of malpractice that is proscribed and
condemned as trifling with the courts and abusing their
processes. It is improper conduct that tends to degrade the
administration of justice. The rule has been formalized in
Section 17 of the Interim Rules and Guidelines issued by this
Court on January 11, 1983 in connection with the
implementation of the Judiciary Reorganization Act, specifically
with the grant in Section 9 of B.P. Blg. 129 of equal original
jurisdiction to the Intermediate Appellate Court to issue writs of
mandamus, prohibition, etc., and auxiliary writs or processes,
whether or not in aid of its appellate jurisdiction Thus, the cited
Rule provides that no such petition may be filed in the
Intermediate Appellate Court if another similar petition has
been filed or is still pending in the Supreme Court and vice
versa. The Rule orders that A violation of the rule shad
constitute contempt of court and shall be a cause for the
summary dismissal of both petitions, without prejudice to the
taking of appropriate action against the counsel or party
concerned. The rule applies with equal force where the party
having filed an action in the Supreme Court shops for the same
remedy of prohibition and a restraining order or injunction in the
regional trial court . . . (or vice versa). . . ." 14
As already observed, there is between the action at bar and
RTC Case No. 86-36563, an identity as regards parties, or
interests represented, rights asserted and relief sought, as well
as basis thereof, to a degree sufficient to give rise to the ground
for dismissal known as auter action pendant or lis pendens. 15
That same identity puts into operation the sanction of twin
dismissals just mentioned. The application of this sanction will
prevent any further delay in the settlement of the controversy
which might ensue from attempts to seek reconsideration of or
to appeal from the Order of the Regional Trial Court in Civil
Case No. 86-36563 promulgated on July 15, 1986, which
dismissed the petition upon grounds which appear persuasive.
16
It would seem that after the filing by Rosalina Buan and Liza
Ocampo (president and press relations officer, respectively, of
the Quiapo Church vendors association known as the
Samahan) of the petition in this case, "for themselves and all
others similarly situated as themselves" (i.e., the members of
the Samahan, who are vendors in the area of Quiapo Church)
they came to the belated realization that in view of the
pendency of the identical action filed by them in the Regional
Trial Court (Case No. 86-36563), they were vulnerable to the
accusation of "forum shopping," and thus amenable to its dire
consequences. This explains the filing in this Court by their
lawyers of a "MANIFESTATION WITH AFFIDAVIT OF
WITHDRAWAL" on August 11, 1986, 17 another
"MANIFESTATION AND MOTION" on August 29, 1986, and an
"URGENT MANIFESTATION AND MOTION TO STRIKE-OUT
THE NAME ROSALINA BUAN AND LIZA OCAMPO" on
September 13, 1986. In these manifestations the claim is made
that the five (5) petitioners in the action before this Court who
are members of the Samahan, "were forcibly brainwashed and
guarded by . . . (Atty. Reynaldo Aralar) and his associates to
accede to the invitation of the said counsel . . . to appear for
them and file the case before the Honorable Court knowingly
(sic) that he was furnished the status quo-order of the same
case pending before the Regional Trial Court Branch 45 of
Manila," and/or said Atty. Aralar and his associates had
perpetrated "piracy" of clients and "should be condemned and
suspended for committing act of shopping for courts." The
claim does not inspire belief It is so out of the ordinary as to
require clear and convincing evidence of its actuality, which is
lacking in this case. It is also belied by the fact that Rosalina
Buan and Liza Ocampo themselves were among those who
verified the petition at bar before a notary public. 18 And the
claim is undermined by the misrepresentation in Buans and
Ocampos "Joint Affidavit of Withdrawal" that the status quo
order in RTC Case No. 86-36563 was still subsisting and the
case still pending trial 19 when in truth, the case had already
been dismissed and the restraining order lifted by Order of July
27, 1986.chanrobles law library : red
Yet another reason exists for the denial of the petition. Not one
of the petitioners or the "others similarly situated as
themselves" had a valid and subsisting license or permit as of
the date of the filing of their petition in this Court, August 5,
1986, all licenses and permits having expired prior thereto. 20
This is confirmed by the few receipts submitted by petitioners
21 which all set out expiry dates before August 5, 1986. The
petitioners thus have no basis whatever to postulate a right to
ply their trade in the Quiapo area or elsewhere. The argument
that the non-renewal by the municipal authorities of their
licenses was in effect a cancellation or revocation thereof
without cause is puerile.
Finally, the action for prohibition has become moot and
academic by the occurrence of the acts sought to be inhibited.
The petitioners permits and licenses have all expired; hence,
there can be no occasion whatsoever to speak of the inhibition
of any revocation or cancellation thereof. And the "physical
demolition of their respective business stalls" has already been
consummated.
WHEREFORE, the petition is denied for lack of merit, and the
Regional Trial Court is commanded to dismiss Civil Case No.
86-36563 and to conduct no further proceedings in connection
therewith save in accordance with and in implementation of this
Decision. Costs against petitioners.
SO ORDERED.
Yap, Melencio-Herrera, Cruz and Feliciano, JJ., concur.
EN BANC
[G.R. No. 130068. October 1, 1998]
27
FAR EASTERN SHIPPING COMPANY, petitioner,
vs. COURT OF APPELAS and PHILIPPINE PORTS
AUTHORITY,respondents.
[G.R. No. 130150. October 1, 1998]
MANILA PILOTS ASSOCIATION, petitioner, vs. PHILIPPINE
PORTS AUTHORITY and FAR EASTERN
SHIPPING COMPANY, respondents.
DECISION
REGALADO, J.:
These consolidated petitions for review on certiorari seek
in unison to annul and set aside the decision[1] of respondent
Court of Appeals of November 15, 1996 and its
resolution[2] dated July 31, 1997 in CA-G.R. CV No. 24072,
entitled Philippine Ports Authority, Plaintiff-Appellee vs. Far
Eastern Shipping Company, Senen C. Gavino and Manila Pilots
Association. Defendants-Appellants, which affirmed with
modification the judgment of the trial court holding the
defendants-appellants therein solidarily liable for damages in
favor of herein private respondent.
There is no dispute about the facts as found by the
appellate court, thus --
x x x On June 20, 1980, the M/V PAVLODAR, flying under the
flagship of the USSR, owned and operated by the Far Eastern
Shipping Company (FESC for brevitys sake), arrived at the Port
of Manila from Vancouver, British Columbia at about 7:00
oclock in the morning. The vessel was assigned Berth 4 of the
Manila International Port, as its berthing space. Captain
Roberto Abellana was tasked by the Philippine Port Authority to
supervise the berthing of the vessel. Appellant Senen Gavino
was assigned by the appellant Manila Pilots Association (MPA
for brevitys sake) to conduct docking maneuvers for the safe
berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and
stationed himself in the bridge, with the master of the vessel,
Victor Kavankov, beside him. After a briefing of Gavino by
Kavankov of the particulars of the vessel and its cargo, the
vessel lifted anchor from the quarantine anchorage and
proceeded to the Manila International Port. The sea was calm
and the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the
Tondo North Harbor) one-half mile from the pier, Gavino
ordered the engine stopped. When the vessel was already
about 2,000 feet from the pier, Gavino ordered the anchor
dropped. Kavankov relayed the orders to the crew of the vessel
on the bow. The left anchor, with two (2) shackles were
dropped. However, the anchor did not take hold as
expected.The speed of the vessel did not slacken. A
commotion ensued between the crew members. A brief
conference ensued between Kavankov and the crew
members. When Gavino inquired what was all the commotion
about, Kavankov assured Gavino that there was nothing of it.
After Gavino noticed that the anchor did not take hold, he
ordered the engines half-astern. Abellana, who was then on the
pier apron, noticed that the vessel was approaching the pier
fast. Kavankov likewise noticed that the anchor did not take
hold. Gavino thereafter gave the full-astern code. Before the
right anchor and additional shackles could be dropped, the bow
of the vessel rammed into the apron of thepier causing
considerable damage to the pier. The vessel sustained damage
too. (Exhibit 7-Far Eastern Shipping). Kavankov filed his sea
protest (Exhibit 1-Vessel). Gavino submitted his report to the
Chief Pilot (Exhibit 1-Pilot) who referred the report to the
Philippine Ports Authority (Exhibit 2-Pilot) Abellana likewise
submitted his report of the incident (Exhibit B).
Per contract and supplemental contract of the Philippine Ports
Authority and the contractor for the rehabilitation of the
damaged pier, the same cost the Philippine Ports Authority the
amount of P1,126,132.25 (Exhibits D and E).[3]
On January 10, 1983, the Philippine Ports Authority (PPA,
for brevity), through the Solicitor General, filed before the
Regional Trial Court of Manila, Branch 39, a complaint for a
sum of money against Far Eastern Shipping Co., Capt. Senen
C. Gavino and the Manila Pilots Association, docketed as Civil
Case No. 83-14958,[4] praying that the defendants therein be
held jointly and severally liable to pay the plaintiff actual and
exemplary damages plus costs of suit. In a decision dated
August 1, 1985, the trial court ordered the defendants therein
jointly and severally to pay the PPA the amount
of P1,053,300.00 representing actual damages and the cost of
suit.[5]
The defendants appealed to the Court of Appeals and
raised the following issues: (1) Is the pilot of a commercial
vessel, under compulsory pilotage, solely liable for the damage
caused by the vessel to the pier, at the port of destination, for
his negligence? And (2) Would the owner of the vessel be liable
likewise if the damage is caused by the concurrent negligence
of the master of vessel and the pilot under a compulsory
pilotage?
As stated at the outset, respondent appellate court
affirmed the findings of the court a quo except that it found no
employer-employee relationship existing between herein private
respondents Manila Pilots Association (MPA, for short) and
Capt. Gavino.[6] This being so, it ruled instead that the liability of
MPA is anchored, not on Article 2180 of the Civil Code, but on
the provisions of Customs Administrative Order No. 15-
65,[7] and accordingly modified said decision of the trial court by
holding MPA, along with its co-defendants therein, still solidarily
liable to PPA but entitled MPA to reimbursement from Capt.
Gavino for such amount of the adjudged pecuniary liability in
excess of the amount equivalent to seventy-five percent (75%)
of its prescribed reserve fund.[8]
Neither Far Eastern Shipping Co. (briefly, FESC) nor
MPA was happy with the decision of the Court of Appeals and
both of them elevated their respective plaints to us via separate
petitions for review on certiorari.
In G.R. No. 130068, which was assigned to the Second
Division of this Court, FESC imputed that the Court of Appeals
seriously erred:
1. in not holding Senen C. Gavino and the Manila Pilots
Association as the parties solely responsible for the resulting
damages sustained by the pier deliberately ignoring the
established jurisprudence on the matter.
2. in holding that the master had not exercised the required
diligence demanded from him by the circumstances at the time
the incident happened;
3. in affirming the amount of damages sustained by the
respondent Philippine Ports Authority despite a strong and
convincing evidence that the amount is clearly exorbitant and
unreasonable;
4. in not awarding any amount of counterclaim prayed for by the
petitioner in its answer; and
5. in not granting herein petitioner's claim against pilot Senen
C. Gavino and Manila Pilots' Association in the event that it be
held liable.[9]
28
Petitioner asserts that since the MV PAVLODAR was
under compulsory pilotage at the time of the incident, it was a
compulsory pilot, Capt. Gavino, who was in command and had
complete control in the navigation and docking of the vessel. It
is the pilot who supersedes the master for the time being in the
command and navigation of a ship and his orders must be
obeyed in all respects connected with her
navigation. Consequently, he was solely responsible for the
damage caused upon the pier apron, and not the owners of the
vessel. It claims that the master of the boat did not commit any
act of negligence when he failed to countermand or overrule the
orders of the pilot because he did not see any justifiable reason
to do so. In other words, the master cannot be faulted for
relying absolutely on the competence of the compulsory pilot. If
the master does not observe that a compulsory pilot is
incompetent or physically incapacitated, the master is justified
in relying on the pilot.[10]
Respondent PPA, in its comment, predictably in full
agreement with the ruling of respondent court on the solidary
liability of FESC, MPA and Capt. Gavino, stresses the
concurrent negligence of Capt. Gavino, the harbor pilot, and
Capt. Viktor Kabankov,* shipmaster of MV Pavlodar, as the
basis of their solidary liability for damages sustained by PPA. It
posits that the vessel was being piloted by Capt. Gavino with
Capt. Kabankov beside him all the while on the bridge of the
vessel, as the former took over the helm of MV Pavlodar when
it rammed and damaged the apron of the pier of Berth No. 4 of
the Manila International Port. Their concurrent negligence was
the immediate and proximate cause of the collision between the
vessel and the pier - Capt. Gavino, for his negligence in the
conduct of docking maneuvers for the safe berthing of the
vessel; and Capt. Kabankov, for failing to countermand the
orders of the harbor pilot and to take over and steer the vessel
himself in the face of imminent danger, as well as for merely
relying on Capt. Gavino during the berthing procedure. [11]
On the other hand, in G.R. No. 130150, originally
assigned to the Court's First Division and later transferred to
the Third Division, MPA, now as petitioner in this case, avers
the respondent court's errors consisted in disregarding and
misinterpreting Customs Administrative Order No. 15-65 which
limits the liability of MPA. Said pilots' association asseverates
that it should not be held solidarily liable with Capt. Gavino who,
as held by respondent court, is only a member, not an
employee, thereof. There being no employer-employee
relationship, neither can MPA be held liable for any vicarious
liability for the respective exercise of profession by its members
nor be considered a joint tortfeasor as to be held jointly and
severally liable.[12] It further argues that there was erroneous
reliance on Customs Administrative Order No. 15-65 and the
constitution and by-laws of MPA, instead of the provisions of
the Civil Code on damages which, being a substantive law, is
higher in category than the aforesaid constitution and by-laws
of a professional organization or an administrative order which
bears no provision classifying the nature of the liability of MPA
for the negligence its member pilots.[13]
As for Capt. Gavino, counsel for MPA states that the
former had retired from active pilotage services since July 28,
1994 and has ceased to be a member of petitioner pilots'
association. He is not joined as a petitioner in this case since
his whereabouts are unknown.[14]
FESC's comment thereto relied on the competence of the
Court of Appeals in construing provisions of law or
administrative orders as basis for ascertaining the liability of
MPA, and expressed full accord with the appellate court's
holding of solidary liability among itself, MPA and Capt.
Gavino. It further avers that the disputed provisions of Customs
Administrative Order No. 15-65 clearly established MPA's
solidary liability.[15]
On the other hand, public respondent PPA, likewise
through representations by the Solicitor General, assumes the
same supportive stance it took in G.R. No. 130068 in declaring
its total accord with the ruling of the Court of Appeals that MPA
is solidarily liable with Capt. Gavino and FESC for damages,
and in its application to the fullest extent of the provisions of
Customs Administrative Order No. 15-65 in relation to MPA's
constitution and by-laws which spell out the conditions of and
govern their respective liabilities. These provisions are clear
and ambiguous as regards MPA's liability without need for
interpretation or construction. Although Customs Administrative
Order No. 15-65 is a mere regulation issued by an
administrative agency pursuant to delegated legislative
authority to fix details to implement the law, it is legally binding
and has the same statutory force as any valid statute. [16]
[17]
Upon motion by FESC dated April 24, 1998 in G.R. No.
130150, said case was consolidated with G.R. No. 130068. [18]
Prefatorily, on matters of compliance with procedural
requirements, it must be mentioned that the conduct of the
respective counsel for FESC and PPA leaves much to be
desired, to the displeasure and disappointment of this Court.
Section 2, Rule 42 of the 1997 Rules of Civil
Procedure[19] incorporates the former Circular No. 28-91 which
provided for what has come to be known as the certification
against forum shopping as an additional requisite for petitions
filed with the Supreme Court and the Court of Appeals, aside
from the other requirements contained in pertinent provisions of
the Rules of Court therefor, with the end in view of
preventing the filing of multiple complaints involving the same
issues in the Supreme Court, Court of Appeals or different
divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2,
Rule 42 provides:
xxxxxxxxx
The petitioner shall also submit together with the petition a
certification under oath that he has not therefore commenced
any other action involving the same issues in the Supreme
Court, the Court of Appeals or different divisions thereof, or any
other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days
therefrom. (Italics supplied.)
For petitions for review filed before the Supreme Court, Section
4(e), Rule 45 specifically requires that such petition shall
contain a sworn certification against forum shopping as
provided in the last paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del
Rosario through its associate, Atty. Herbert A. Tria, is the
counsel of record for FESC in both G.R. No. 130068 and G.R.
No. 130150.
G.R. No. 130068, which is assigned to the Court's
Second Division, commenced with the filing by FESC through
counsel on August 22, 1997 of a verified motion for extension of
time to file its petition for thirty (30) days from August 28, 1997
or until September 27, 1997.[20] Said motion contained the
following certification against forum shopping [21] signed by Atty.
Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other
action or proceeding involving the same issues in the Supreme
Court, the Court of Appeals, or any other tribunal or agency;
that to the best of my own knowledge, no such action or
proceeding is pending in the Supreme Court, the Court of
Appeals, or any other tribunal or agency; that if I/we should
thereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, I/we undertake to
report that fact within five (5) days therefrom to this Honorable
Court.
29
This motion having been granted, FESC subsequently filed its
petition on September 26, 1997, this time bearing a "verification
and certification against forum-shopping" executed by one
Teodoro P. Lopez on September 24, 1997,[22] to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation to Section
2, Rule 42 of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn,
depose and state:
1. That I am the Manager, Claims Department of Filsov
Shipping Company, the local agent of petitioner in this case.
2. That I have caused the preparation of this Petition for Review
on Certiorari.
3. That I have read the same and the allegations therein
contained are true and correct based on the records of this
case.
4. That I certify that petitioner has not commenced any other
action or proceeding involving the same issues in the Supreme
Court or Court of Appeals, or any other tribunal or agency, that
to the best of my own knowledge, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals or any
other tribunal or agency, that I should thereafter learn that a
similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or any other tribunal
or agency, I undertake to report the fact within five (5) days
therefrom to this Honorable Court. (Italics supplied for
emphasis.)
Reviewing the records, we find that the petition filed by
MPA in G.R. No. 130150 then pending with the Third Division
was duly filed on August 29, 1997 with a copy thereof furnished
on the same date by registered mail to counsel for
FESC.[23] Counsel of record for MPA, Atty. Jesus P. Amparo, in
his verification accompanying said petition dutifully revealed to
the Court that--
xxxxxxxxx
3. Petitioner has not commenced any other action or
proceeding involving the same issues in his Honorable Court,
the Court of Appeals or different Divisions thereof, or any other
tribunal or agency, but to the best of his knowledge, there is an
action or proceeding pending in this Honorable Court, entitled
Far Eastern Shipping Co., Petitioner, vs. Philippine Ports
Authority and Court of Appeals with a Motion for Extension of
time to file Petition for Review by Certiorari filed sometime on
August 18, 1997. If undersigned counsel will come to know of
any other pending action or claim filed or pending he
undertakes to report such fact within five (5) days to this
Honorable Court.[24] (Italics supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was
posted by registered mail on August 29, 1997 and taking
judicial notice of the average period of time it takes local mail to
reach its destination, by reasonable estimation it would be fair
to conclude that when FESC filed its petition in G.R. No.
130068 on September 26, 1997, it would already have received
a copy of the former and would then have knowledge of the
pendency of the other petition initially filed with the First
Division. It was therefore incumbent upon FESC to inform the
Court of that fact through its certification against forum
shopping. For failure to make such disclosure, it would appear
that the aforequoted certification accompanying the petition in
G.R. No. 130068 is defective and could have been a ground for
dismissal thereof.
Even assuming that FESC has not yet received its copy
of MPA's petition at the time it filed its own petition and
executed said certification, its signatory did state "that if I
should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
Appeals or any other tribunal or agency, I undertake to report
the fact within five (5) days therefrom in this Honorable
Court."[25] Scouring the records page by page in this case, we
find that no manifestation concordant with such undertaking
was then or at any other time thereafter ever filed by FESC nor
was there any attempt to bring such matter to the attention of
the Court.Moreover, it cannot feign non-knowledge of the
existence of such other petition because FESC itself filed the
motion for consolidation in G.R. No. 130150 of these two cases
on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm
of Del Rosario and Del Rosario, displays an unprofessional
tendency of taking the Rules for granted, in this instance
exemplified by its pro forma compliance therewith but
apparently without full comprehension of and with less than
faithful commitment to its undertakings to this Court in the
interest of just, speedy and orderly administration of court
proceedings.
As between the lawyer and the courts, a lawyer owes
candor, fairness and good faith to the court.[26] He is an officer
of the court exercising a privilege which is indispensable in the
administration of justice.[27] Candidness, especially towards the
courts, is essential for the expeditious administration of
justice. Courts are entitled to expect only complete honesty
from lawyers appearing and pleading before them. [28] Candor in
all dealings is the very essence of honorable membership in the
legal profession.[29] More specifically, a lawyer is obliged to
observe the rules of procedure and not to misuse them to
defeat the ends of justice.[30] It behooves a lawyer, therefore, to
exert every effort and consider it his duty to assist in the speedy
and efficient administration of justice.[31] Being an officer of the
court, a lawyer has a responsibility in the proper administration
of justice. Like the court itself, he is an instrument to advance
its ends -- the speedy, efficient, impartial, correct and
inexpensive adjudication of cases and the prompt satisfaction
of final judgments. A lawyer should not only help attain these
objectives but should likewise avoid any unethical or improper
practices that impede, obstruct or prevent their realization,
charged as he is with the primary task of assisting in the
speedy and efficient administration of justice.[32]
Sad to say, the members of said law firm sorely failed to
observe their duties as responsible members of the Bar. Their
actuations are indicative of their predisposition to take lightly
the avowed duties of officers of the Court to promote respect for
law and for legal processes.[33] We cannot allow this state of
things to pass judicial muster.
In view of the fact that at around the time these petitions
were commenced, the 1997 Rules of Civil Procedure had just
taken effect, the Court treated infractions of the new Rules then
with relative liberality in evaluating full compliance
therewith. Nevertheless, it would do well to remind all
concerned that the penal provisions of Circular No. 28-91 which
remain operative provides, inter alia:
3. Penalties.-
xxxxxxxxx
(c) The submission of a false certification under Par. 2 of the
Circular shall likewise constitute contempt of court, without
prejudice to the filing of criminal action against the guilty
party. The lawyer may also be subjected to disciplinary
proceedings.
It must be stressed that the certification against forum
shopping ordained under the Rules is to be executed by the
petitioner, and not by counsel. Obviously it is the petitioner, and
not always the counsel whose professional services have been
retained for a particular case, who is in the best position to
know whether he or it actually filed or caused the filing of a
petition in that case. Hence, a certification against forum
30
shopping by counsel is a defective certification. It is clearly
equivalent to non-compliance with the requirement under
Section 2, Rule 42 in relation to Section 4, Rule 45, and
constitutes a valid cause for dismissal of the petition.
Hence, the initial certification appended to the motion for
extension of time to file petition n G.R. No. 130068 executed in
behalf of FESC by Atty. Tria is procedurally deficient. But
considering that it was a superfluity at that stage of the
proceeding, it being unnecessary to file such a certification with
a mere motion for extension, we shall disregard such error.
Besides, the certification subsequently executed by Teodoro P.
Lopez in behalf of FESC cures that defect to a certain extent,
despite the inaccuracies earlier pointed out. In the same vein,
we shall consider the verification signed in behalf of MPA by its
counsel, Atty. Amparo, in G.R. No. 130150 as substantial
compliance inasmuch as it served the purpose of the Rules of
informing the Court of the pendency of another action or
proceeding involving the same issues.
It bears stressing that procedural rules are instruments in
the speedy and efficient administration of justice. They should
be used to achieve such end and not to derail it. [34]
Counsel for PPA did not make matters any better. Despite
the fact that, save for the Solicitor General at the time, the
same legal team of the Office of the Solicitor General (OSG, for
short) composed of Assistant Solicitor General Roman G. Del
Rosario and Solicitor Luis F. Simon, with the addition of
Assistant Solicitor General Pio C. Guerrero very much later in
the proceedings, represented PPA throughout the appellate
proceedings in both G.R. No. 130068 and G.R. No. 130150 and
was presumably fully acquainted with the facts and issues of
the case, it took the OSG an inordinately and almost
unreasonably long period of time to file its comment, thus
unduly delaying the resolution of these cases. It took several
changes of leadership in the OSG -- from Silvestre H. Bello III
to Romeo C. dela Cruz and, finally, Ricardo P. Galvez -- before
the comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension
of time totaling 210 days, a warning that no further extensions
shall be granted, and personal service on the Solicitor General
himself of the resolution requiring the filing of such comment
before the OSG indulged the Court with the long required
comment on July 10, 1998.[35] This, despite the fact that said
office was required to file its comment way back on November
12, 1997.[36] A closer scrutiny of the records likewise indicates
that petitioner FESC was not even furnished a copy of said
comment as required by Section 5, Rule 42. Instead, a copy
thereof was inadvertently furnished to MPA which, from the
point of view of G.R. No. 130068, was a non-party.[37] The OSG
fared slightly better in G.R. No. 130150 in that it took only six
(6) extensions, or a total of 180 days, before the comment was
finally filed.[38] And while it properly furnished petitioner MPA
with a copy of its comment, it would have been more desirable
and expedient in this case to have furnished its therein co-
respondent FESC with a copy thereof, if only as a matter of
professional courtesy.[39]
This undeniably dilatory disinclination of the OSG to
seasonably file required pleadings constitutes deplorable
disservice to the tax-paying public and can only be categorized
as censurable inefficiency on the part of the government law
office. This is most certainly professionally unbecoming of the
OSG.
Another thing that baffles the Court is why the OSG did
not take the initiative of filing a motion for consolidation in either
G.R. No. 130068 or G.R. No. 130150, considering its familiarity
with the background of the case and if only to make its job
easier by having to prepare and file only one comment. It could
not have been unaware of the pendency of one or the other
petition because, being counsel for respondent in both cases,
petitioner is required to furnish it with a copy of the petition
under pain of dismissal of the petition for failure otherwise.[40]
Besides, in G.R. 130068, it prefaces its discussions thus -
-
Incidentally, the Manila Pilots' Association (MPA), one of the
defendants-appellants in the case before the respondent Court
of Appeals, has taken a separate appeal from the said decision
to this Honorable Court, which was docketed as G.R. No.
130150 and entitled "Manila Pilots' Association, Petitioner,
versus Philippine Ports Authority and Far Eastern Shipping Co.,
Respondents.[41]
Similarly, in G.R. No. 130150, it states -
Incidentally, respondent Far Eastern Shipping Co. (FESC) had
also taken an appeal from the said decision to this Honorable
Court, docketed as G.R. No. 130068, entitled "Far Eastern
Shipping Co. vs. Court of Appeals and Philippine Ports
Authority."[42]
We find here a lackadaisical attitude and complacency on
the part of the OSG in the handling of its cases and an almost
reflexive propensity to move for countless extensions, as if to
test the patience of the Court, before favoring it with the timely
submission of required pleadings.
It must be emphasized that the Court can resolve cases
only as fast as the respective parties in a case file the
necessary pleadings. The OSG, be needlessly extending the
pendency of these cases through its numerous motions for
extension, came very close to exhausting this Court's
forbearance and has regrettably fallen short of its duties as the
People's Tribune.
The OSG is reminded that just like other members of the
Bar, the canons under the Code of Professional Responsibility
apply with equal force on lawyers in government service in the
discharge of their official tasks.[43] These ethical duties are
rendered even more exacting as to them because, as
government counsel, they have the added duty to abide by the
policy of the State to promote a high standard of ethics in public
service.[44] Furthermore, it is incumbent upon the OSG, as part
of the government bureaucracy, to perform and discharge its
duties with the highest degree of professionalism, intelligence
and skill[45] and to extend prompt, courteous and adequate
service to the public.[46]
Now, on the merits of the case. After a judicious
examination of the records of this case, the pleadings filed, and
the evidence presented by the parties in the two petitions, we
find no cogent reason to reverse and set aside the questioned
decision. While not entirely a case of first impression, we shall
discuss the issues seriatim and, correlatively by way of a
judicial once-over, inasmuch as the matters raised in both
petitions beg for validation and updating of well worn maritime
jurisprudence. Thereby, we shall write finis to the endless
finger-pointing in this shipping mishap which has been
stretched beyond the limits of judicial tolerance.
The Port of Manila is within the Manila Pilotage District
which is under compulsory pilotage pursuant to Section 8,
Article III of Philippine Ports Authority Administrative Order No.
03-85,[47] which provides that:
SEC. 8. Compulsory Pilotage Service.- For entering a harbor
and anchoring thereat, or passing through rivers or straits within
a pilotage district, as well as docking and undocking at any
pier/wharf, or shifting from one berth or another, every vessel
engaged in coastwise and foreign trade shall be under
compulsory pilotage. x x x
In case of compulsory pilotage, the respective duties and
responsibilities of the compulsory pilot and the master have
been specified by the same regulation in this wise:
SEC. 11. Control of vessels and liability for damage. - On
compulsory pilotage grounds, the Harbor Pilot, providing the
service to a vessel shall be responsible for the damage caused
to a vessel or to life and property at ports due to his negligence
or fault. He can only be absolved from liability if the accident is
caused by force majeure or natural calamities provided he has
31
exercised prudence and extra diligence to prevent or minimize
damage.
The Master shall retain overall command of the vessel even on
pilotage grounds whereby he can countermand or overrule the
order or command of the Harbor Pilot on board. In such event,
any damage caused to a vessel or to life and property at ports
by reason of the fault or negligence of the Master shall be the
responsibility and liability of the registered owner of the vessel
concerned without prejudice to recourse against said Master.
Such liability of the owner or Master of the vessel or its pilots
shall be determined by competent authority in appropriate
proceedings in the light of the facts and circumstances of each
particular case.
SEC. 32. Duties and responsibilities of the Pilot or Pilots'
Association. - The duties and responsibilities of the Harbor Pilot
shall be as follows:
xxxxxxxxx
f) a pilot shall be held responsible for the direction of a vessel
from the time he assumes his work as a pilot thereof until he
leaves it anchored or berthed safely; Provided, however, that
his responsibility shall cease at the moment the Master
neglects or refuses to carry out his order.
Customs Administrative Order No. 15-65 issued twenty
years earlier likewise provided in Chapter I thereof for the
responsibilities of pilots:
Par. XXXIX. - A Pilot shall be held responsible for the direction
of a vessel from the time he assumes control thereof until he
leaves it anchored free from shoal; Provided, That his
responsibility shall cease at the moment the master neglects or
refuses to carry out his instructions.
xxxxxxxxx
Par. XLIV. - Pilots shall properly and safely secure or anchor
vessels under their control when requested to do so by the
master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious
error in not holding MPA and Capt. Gavino solely responsible
for the damages caused to the pier. It avers that since the
vessel was under compulsory pilotage at the time with Capt.
Gavino in command and having exclusive control of the vessel
during the docking maneuvers, then the latter should be
responsible for damages caused to the pier. [48] It likewise holds
the appellate court in error for holding that the master of the
ship, Capt. Kabankov, did not exercise the required diligence
demanded by the circumstances.[49]
We start our discussion of the successive issues bearing
in mind the evidentiary rule in American jurisprudence that
there is a presumption of fault against a moving vessel that
strikes a stationary object such as a dock or navigational aid. In
admiralty, this presumption does more than merely require the
ship to go forward and produce some evidence on the
presumptive matter. The moving vessel must show that it was
without fault or that the collision was occasioned by the fault of
the stationary object or was the result of inevitable accident.It
has been held that such vessel must exhaust every reasonable
possibility which the circumstances admit and show that in
each, they did all that reasonable care required.[50] In the
absence of sufficient proof in rebuttal, the presumption of fault
attaches to a moving vessel which collides with a fixed object
and makes a prima facie case of fault against the
vessel.[51] Logic and experience support this presumption:
The common sense behind the rule makes the burden a heavy
one. Such accidents simply do not occur in the ordinary course
of things unless the vessel has been mismanaged in some
way. It is not sufficient for the respondent to produce witnesses
who testify that as soon as the danger became apparent
everything possible was done to avoid an accident. The
question remains, How then did the collision occur?The answer
must be either that, in spite of the testimony of the witnesses,
what was done was too little or too late or, if not, then the
vessel was at fault for being in a position in which an
unavoidable collision would occur.[52]
The task, therefore, in these cases is to pinpoint who was
negligent - the master of the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and
licensed, to conduct a vessel into or out of ports, or in certain
waters. In a broad sense, the term "pilot" includes both (1)
those whose duty it is to guide vessels into or out of ports, or in
particular waters and (2) those entrusted with the navigation of
vessels on the high seas.[53] However, the term "pilot" is more
generally understood as a person taken on board at a particular
place for the purpose of conducting a ship through a river, road
or channel, or from a port.[54]
Under English and American authorities, generally
speaking, the pilot supersedes the master for the time being in
the command and navigation of the ship, and his orders must
be obeyed in all matters connected with her navigation. He
becomes the master pro hac vice and should give all directions
as to speed, course, stopping and reversing, anchoring, towing
and the like. And when a licensed pilot is employed in a place
where pilotage is compulsory, it is his duty to insist on having
effective control of the vessel, or to decline to act as
pilot. Under certain systems of foreign law, the pilot does not
take entire charge of the vessel, but is deemed merely the
adviser of the master, who retains command and control of the
navigation even on localities where pilotage is compulsory.[55]
It is quite common for states and localities to provide for
compulsory pilotage, and safety laws have been enacted
requiring vessels approaching their ports, with certain
exceptions, to take on board pilots duly licensed under local
law. The purpose of these laws is to create a body of seamen
thoroughly acquainted with the harbor, to pilot vessels seeking
to enter or depart, and thus protect life and property from the
dangers of navigation.[56]
In line with such established doctrines, Chapter II of
Customs Administrative Order No. 15-65 prescribes the rules of
compulsory pilotage in the covered pilotage districts, among
which is the Manila Pilotage District, viz. --
PARAGRAPH I. - Pilotage for entering a harbor and
anchoring thereat, as well as docking and undocking in any pier
or shifting from one berth to another shall be compulsory,
except Government vessels and vessels of foreign
governments entitled to courtesy, and other vessels engaged
solely in river or harbor work, or in a daily ferry service between
ports which shall be exempt from compulsory pilotage
provisions of these regulations: provided, however, that
compulsory pilotage shall not apply in pilotage districts whose
optional pilotage is allowed under these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV
Pavlodar into Berth 4 of the Manila International Port. Upon
assuming such office as compulsory pilot, Capt. Gavino is held
to the universally accepted high standards of care and diligence
required of a pilot, whereby he assumes to have skill and
knowledge in respect to navigation in the particular waters over
which his license extends superior to and more to be trusted
than that of the master.[57] A pilot should have a thorough
knowledge of general and local regulations and physical
conditions affecting the vessel in his charge and the waters for
which he is licensed, such as a particular harbor or river. He is
not held to the highest possible degree of skill and care, but
must have and exercise the ordinary skill and care demanded
32
by the circumstances, and usually shown by an expert in his
profession. Under extraordinary circumstances, a pilot must
exercise extraordinary care.[58]
In Atlee vs. The Northwestern Union Packet
Company,[59] Mr. Justice Miller spelled out in great detail the
duties of a pilot:
x x x (T)he pilot of a river steamer, like the harbor pilot, is
selected for his personal knowledge of the topography through
which he steers his vessel. In the long course of a thousand
miles in one of these rivers, he must be familiar with the
appearance of the shore on each side of the river as he goes
along. Its banks, towns, its landings, its houses and trees, are
all landmarks by which he steers his vessel. The compass is of
little use to him. He must know where the navigable channel is,
in its relation to all these external objects, especially in the
night. He must also be familiar with all dangers that are
permanently located in the course of the river, as sand-bars,
snags, sunken rocks or trees or abandoned vessels or
barges. All this he must know and remember and avoid. To do
this, he must be constantly informed of the changes in the
current of the river, of the sand-bars newly made, of logs or
snags, or other objects newly presented, against which his
vessel might be injured.
xxxxxxxxx
It may be said that this is exacting a very high order of
ability in a pilot. But when we consider the value of the lives and
property committed to their control, for in this they are absolute
masters, the high compensation they receive, the care which
Congress has taken to secure by rigid and frequent
examinations and renewal of licenses, this very class of skill,
we do not think we fix the standard too high.
Tested thereby, we affirm respondent court's finding that
Capt. Gavino failed to measure up to such strict standard of
care and diligence required of pilots in the performance of their
duties. Witness this testimony of Capt. Gavino:
Court:
You have testified before that the reason why the
vessel bumped the pier was because the anchor was
not released immediately or as soon as you have
given the order. Do you remember having stated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to
understand that is that anchor was released
immediately at the time you gave the order, the
incident would not have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my part
because there was a commotion between the officers
who are in charge of the dropping of the anchor and
the captain. I could not understand their language, it
was in Russian, so I presumed the anchor was not
dropped on time.
Q So, you are not sure whether it was really dropped on
time or not?
A I am not sure, your Honor.
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Q You are not even sure what could have caused the
incident. What factor could have caused the incident?
A Well, in this case now, because either the anchor was not
dropped on time or the anchor did not hold, that was
the cause of the incident, your Honor.[60]
 It is disconcertingly riddled with too much incertitude and
manifests a seeming indifference for the possibly injurious
consequences his commands as pilot may have. Prudence
required that he, as pilot, should have made sure that his
directions were promptly and strictly followed. As correctly
noted by the trial court -
Moreover, assuming that he did indeed give the
command to drop the anchor on time, as pilot he should have
seen to it that the order was carried out, and he could have
done this in a number of ways, one of which was to inspect the
bow of the vessel where the anchor mechanism was
installed. Of course, Captain Gavino makes reference to a
commotion among the crew members which supposedly
caused the delay in the execution of the command. This
account was reflected in the pilot's report prepared four hours
later, but Capt. Kavankov, while not admitting whether or not
such a commotion occurred, maintained that the command to
drop anchor was followed "immediately and precisely." Hence,
the Court cannot give much weight or consideration to this
portion of Gavino's testimony."[61]
An act may be negligent if it is done without the
competence that a reasonable person in the position of the
actor would recognize as necessary to prevent it from creating
an unreasonable risk of harm to another. [62] Those who
undertake any work calling for special skills are required not
only to exercise reasonable care in what they do but also
possess a standard minimum of special knowledge and
ability.[63]
Every man who offers his services to another, and is
employed, assumes to exercise in the employment such skills
he possesses, with a reasonable degree of diligence. In all
these employments where peculiar skill is requisite, if one offers
his services he is understood as holding himself out to the
public as possessing the degree of skill commonly possessed
by others in the same employment, and if his pretensions are
unfounded he commits a species of fraud on every man who
employs him in reliance on his public profession. [64]
Furthermore, there is an obligation on all persons to take
the care which, under ordinary circumstances of the case, a
reasonable and prudent man would take, and the omission of
that care constitutes negligence.[65] Generally, the degree of
care required is graduated according to the danger a person or
property attendant upon the activity which the actor pursues or
the instrumentality which he uses. The greater the danger the
greater the degree of care required. What is ordinary under
extraordinary of conditions is dictated by those conditions;
extraordinary risk demands extraordinary care. Similarly, the
more imminent the danger, the higher the degree of care. [66]
We give our imprimatur to the bases for the conclusion of
the Court of Appeals that Capt. Gavino was indeed negligent in
the performance of his duties:
xxxxxxxxx
x x x As can be gleaned from the logbook, Gavino
ordered the left anchor and two (2) shackles dropped at 8:30
o'clock in the morning.He ordered the engines of the vessel
stopped at 8:31 o'clock. By then, Gavino must have realized
that the anchor did not hit a hard object and was not clawed so
as to reduce the momentum of the vessel. In point of fact, the
vessel continued travelling towards the pier at the same
speed. Gavino failed to react. At 8:32 o'clock, the two (2)
tugboats began to push the stern part of the vessel from the
port side but the momentum of the vessel was not contained.
Still, Gavino did not react. He did not even order the other
anchor and two (2) more shackles dropped to arrest the
momentum of the vessel. Neither did he order full-astern. It was
only at 8:34 o'clock, or four (4) minutes, after the anchor was
dropped that Gavino reacted. But his reaction was even
(haphazard) because instead of arresting fully the momentum
of the vessel with the help of the tugboats, Gavino ordered
merely "half-astern". It took Gavino another minute to order a
33
"full-astern". By then, it was too late. The vessel's momentum
could no longer be arrested and, barely a minute thereafter, the
bow of the vessel hit the apron of the pier. Patently, Gavino
miscalculated. He failed to react and undertake adequate
measures to arrest fully the momentum of the vessel after the
anchor failed to claw to the seabed. When he reacted, the
same was even (haphazard). Gavino failed to reckon the bulk
of the vessel, its size and its cargo. He erroneously believed
that only one (1) anchor would suffice and even when the
anchor failed to claw into the seabed or against a hard object in
the seabed, Gavino failed to order the other anchor dropped
immediately. His claim that the anchor was dropped when the
vessel was only 1,000 feet from the pier is but a belated
attempt to extricate himself from the quagmire of his own
insouciance and negligence. In sum, then, Appellants' claim
that the incident was caused by "force majeure" is barren of
factual basis.
xxxxxxxxx
The harbor pilots are especially trained for this job. In the
Philippines, one may not be a harbor pilot unless he passed the
required examination and training conducted then by the
Bureau of Custom, under Customs Administrative Order No.
15-65, now under the Philippine Ports Authority under PPA
Administrative Order 63-85. Paragraph XXXIX of the Customs
Administrative Order No. 15-65 provides that "the pilot shall be
held responsible for the direction of the vessel from the time he
assumes control thereof, until he leaves it anchored free from
shoal: Provided, that his responsibility shall cease at the
moment the master neglects or refuse(s) to carry out his
instructions." The overall direction regarding the procedure for
docking and undocking the vessel emanates from the harbor
pilot. In the present recourse, Gavino failed to live up to his
responsibilities and exercise reasonable care or that degree of
care required by the exigencies of the occasion.Failure on his
part to exercise the degree of care demanded by the
circumstances is negligence (Reese versus Philadelphia & RR
Co. 239 US 463, 60 L ed. 384, 57 Am Jur. 2d 12age 418).[67]
This affirms the findings of the trial court regarding
Capt. Gavino's negligence:
This discussion should not however, divert the court from
the fact that negligence in manuevering the vessel must be
attributed to Capt.Senen Gavino. He was an experienced pilot
and by this time should have long familiarized himself with the
depth of the port and the distance he could keep between the
vessel and port in order to berth safely. [68]
The negligence on the part of Capt. Gavino is evident; but
Capt. Kabankov is no less responsible for the allision. His
unconcerned lethargy as master of the ship in the face of
troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a
pilot-is in sole command of the ship[69] and supersedes the
master for the time being in the command and navigation of a
ship and that he becomes master pro hac vice of a vessel
piloted by him,[70] there is overwhelming authority to the effect
that the master does not surrender his vessel to the pilot and
the pilot is not the master. The master is still in command of the
vessel notwithstanding the presence of a pilot. There are
occasions when the master may and should interfere and even
displace the pilot, as when the pilot is obviously incompetent or
intoxicated and the circumstances may require the master to
displace a compulsory pilot because of incompetency or
physical incapacity. If, however, the master does not observe
that a compulsory pilot is incompetent or physically
incapacitated, the master is justified in relying on the pilot, but
not blindly.[71]
The master is not wholly absolved from his duties while a
pilot is on board his vessel, and may advise with or offer
suggestions to him.He is still in command of the vessel, except
so far as her navigation is concerned, and must cause the
ordinary work of the vessel to be properly carried on and the
usual precaution taken. Thus, in particular, he is bound to see
that there is sufficient watch on deck, and that the men are
attentive to their duties, also that engines are stopped, towlines
cast off, and the anchors clear and ready to go at the pilot's
order.[72]
A perusal of Capt. Kabankov's testimony makes it
apparent that he was remiss in the discharge of his duties as
master of the ship, leaving the entire docking procedure up to
the pilot, instead of maintaining watchful vigilance over this
risky maneuver:
xxxxxxxxx
Q Will you please tell us whether you have the right to
intervene in docking of your ship in the harbor?
A No sir, I have no right to intervene in time of docking, only
in case there is imminent danger to the vessel and to
the pier.
Q Did you ever intervene during the time that your ship was
being docked by Capt. Gavino?
A No sir, I did not intervene at the time when the pilot was
docking my ship.
Q Up to the time it was actually docked at the pier, is that
correct'?
A No sir, I did not intervene up to the very moment when
the vessel was docked.
xxxxxxxxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there
anything unusual that happened during the docking?
A Yes sir, our ship touched the pier and the pier was
damaged.
Court (to the witness)
Q When you said touched the pier, are you leading the
court to understand that your ship bumped the pier?
A I believe that my vessel only touched the pier but the
impact was very weak.
Q Do you know whether the pier was damaged as a result
of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxxxxxxxx
xxxxxxxxx
Q Being most concerned with the safety of your vessel, in
the maneuvering of your vessel, to the port, did you
observe anything irregular in the maneuvering by
Capt. Gavino at the time he was trying to cause the
vessel to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver of
the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court to
understand that there was nothing irregular in the
docking of the ship?
A Yes sir, during the initial period, of the docking, there was
nothing unusual that happened.
Q What about in the last portion of the docking of the ship,
was there anything unusual or abnormal that
happened?
A None Your Honor, I believe that Capt. Gavino thought
that the anchor could keep or hold the vessel.
34
Q You want us to understand, Mr. Witness, that the
dropping of the anchor of the vessel was not timely?
A I don't know the depth of this port but I think, if the anchor
was dropped earlier and with more shackles, there
could not have been an incident.
Q So you could not precisely tell the court that the dropping
of the anchor was timely because you are not well
aware of the seabed, is that correct?
A Yes sir, that, is right.
Q Alright, Capt. Kavankov, did you come to know later
whether the anchor held its ground so much so that
the vessel could not travel?
A It is difficult for me to say definitely. I believe that the
anchor did not hold the ship.
Q You mean you don't know whether the anchor blades
stuck to the ground to stop the ship from further
moving?
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold the
vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold
the ship, did you not make any protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is
correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether
the 2 shackles were also dropped to hold the ship?
A No sir, at the beginning, I did not doubt it because I
believe Capt. Gavino to be an experienced pilot and
he should be more aware as to the depths of the
harbor and the ground and I was confident in his
actions.
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of the
vessel before the incident happened, were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from
that point of view?
A That is right.
Q Whatever the pilot can read from the panel of the bridge,
you also could read, is that correct?
A What is the meaning of panel'?
Q All indications necessary for men on the bridge to be
informed of the movements of the ship?
A That is right.
Q And whatever sound the captain... Capt. Gavino would
hear from the bridge, you could also hear?
A That is right.
 Q Now, you said that when the command to lower the Q So that you were in full accord with all of Capt. Gavino's
anchor was given, it was obeyed, is that right? orders?
A This command was executed by the third mate and A Yes sir.
boatswain.
Q Because, otherwise, you would have issued order that
Court (to the witness) would supersede his own order?
Q Mr. Witness, earlier in today's hearing, you said that you A In that case, I should take him away from his command or
did not intervene with the duties of the pilot and that, remove the command from him.
in your opinion, you can only intervene if the ship is
placed in imminent danger, is that correct? Court (to the witness)

A That is right, I did say that. Q You were in full accord with the steps being taken by
Capt. Gavino because you relied on his knowledge,
Q In your observation before the incident actually on his familiarity of the seabed and shoals and other
happened, did you observe whether or not the ship, surroundings or conditions under the sea, is that
before the actual incident, the ship was placed in correct?
imminent danger?.
A Yes sir, that is right.
A No sir, I did not observe.
xxxxxxxxx
Q By that answer, are you leading the court to understand
that because you did not intervene and because you Solicitor Abad (to the witness)
believed that it was your duty to intervene when the
Q And so after the anchors were ordered dropped and they
vessel is placed in imminent danger to which you did
did not take hold of the seabed, you were alerted that
not observe any imminent danger thereof, you have
there was danger already on hand?
not intervened in any manner to the command of the
pilot? A No sir, there was no imminent danger to the vessel.
A That is right, sir. Q Do you mean to tell us that even if the anchor was
supposed to take hold of the bottom and it did not,
xxxxxxxxx
there was no danger to the ship?
Q Assuming that you disagreed with the pilot regarding the
A Yes sir, because the anchor dragged on the ground later.
step being taken by the pilot in maneuvering the
vessel. whose command will prevail, in case of Q And after a few moments when the anchor should have
imminent danger to the vessel? taken hold the seabed but not done (sic), as you
expected, you already were alerted that there was
A I did not consider the situation as having an imminent
danger to the ship, is that correct?
danger. I believed that the vessel will dock alongside
the pier. A Yes sir, I was alerted but there was no danger.
Q You want us to understand that you did not see an Q And you were alerted that somebody was wrong?
imminent danger to your ship, is that what you mean?
A Yes sir, I was alerted.
A Yes sir, up to the very last moment, I believed that there
was no imminent danger. Q And this alert you assumed was the ordinary alertness
that you have for normal docking?
Q Because of that, did you ever intervene in the command
of the pilot? A Yes sir, I mean that it was usual condition of any man in
time of docking to be alert.
A Yes sir, I did not intervene because I believed that the
command of the pilot to be correct. Q And that is the same alertness when the anchor did not
hold onto the ground, is that correct?
Solicitor Abad (to the witness)
A Yes sir, me and Capt. Gavino (thought) that the anchor
Q As a captain of M/V Pavlodar, you consider docking will hold the ground.
maneuvers a serious matter, is it not?
Q Since, as you said that you agreed all the while with the
A Yes sir, that is right. orders of Capt. Gavino, you also therefore agreed
with him in his failure to take necessary precaution
Q Since it affects not only the safety of the port or pier, but
against the eventuality that the anchor will not hold as
also the safety of the vessel and the cargo, is it not?
expected?
A That is right.
Atty. Del Rosario:
Q So that, I assume that you were watching Capt. Gavino
May I ask that the question ...
very closely at the time he was making his
commands? Solicitor Abad:
A I was close to him, I was hearing his command and being Never mind, I will reform the question.
executed.
xxxxxxxxx
Q And that you were also alert for any possible mistakes he
might commit in the maneuvering of the vessel? Solicitor Abad (to the witness)

A Yes sir, that is right. Q Is it not a fact that the vessel bumped the pier?

Q But at no time during the maneuver did you issue order A That is right, it bumped the pier.
contrary to the orders Capt. Gavino made?
Q For the main reason that the anchor of the vessel did not
A No sir. hold the ground as expected?
A Yes sir, that is my opinion.[73]
35
 Further, on redirect examination, Capt. Kabankov fortified
his apathetic assessment of the situation:
Q Now, after the anchor was dropped, was there any point
in time that you felt that the vessel was in imminent
danger.
A No, at that time, the vessel was not in imminent danger,
sir."[74]
This cavalier appraisal of the event by Capt. Kabankov is
disturbingly antipodal to Capt. Gavino's anxious assessment of
the situation:
Q When a pilot is on board a vessel, it is the pilot's
command which should be followed-at that moment
until the vessel is, or goes to port or reaches port?
A Yes, your Honor, but it does not take away from the
Captain his prerogative to countermand the pilot.
Q In what way?
A In any case, which he thinks the pilot is not maneuvering
correctly, the Captain always has the prerogative to
countermand the pilot's order.
Q But insofar as competence, efficiency and functional
knowledge of the seabed which are vital or decisive in
the safety (sic) bringing of a vessel to the port, he is
not competent?
A Yes, your Honor. That is why they hire a pilot in an
advisory capacity, but still, the safety of the vessel
rest(s) upon the Captain, the Master of the vessel.
Q In this case, there was not a disagreement between you
and the Captain of the vessel in the bringing of the
vessel to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here that he
was all along in conformity with the orders you gave to
him, and, as matter of fact, as he said, he obeyed all
your orders. Can you tell, if in the course of giving
such normal orders for the saf(e) docking of the MV
Pavlodar, do you remember of any instance that the
Master of the vessel did not obey your command for
the safety docking of the MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that
there was no disagreement insofar as the bringing of
the vessel safely to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do
you remember of a time during the course of the
docking that the MV Pavlodar was in imminent danger
of bumping the pier?
A When we were about more than one thousand meters
from the pier. I think, the anchor was not holding, so I
immediately ordered to push the bow at a fourth
quarter, at the back of the vessel in order to swing the
bow away from the pier and at the same time, I
ordered for a full astern of the engine."[75]
These conflicting reactions can only imply, at the very least,
unmindful disregard or, worse, neglectful relinquishment of duty
by the shipmaster, tantamount to negligence.
36
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been
charged with the task of docking the vessel in the berthing
space, it is undisputed that the master of the vessel had the
corresponding duty to countermand any of the orders made by
the pilot, aid even maneuver the vessel himself, in case of
imminent danger to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all
throughout the man(eu)vering procedures he did not notice
anything was going wrong, and even observed that the order
given to drop the anchor, was done at the proper time. He even
ventured the opinion that the accident occurred because the
anchor failed to take hold but that this did not alarm him
because there was still time to drop a second anchor.
Under normal circumstances, the above-mentioned facts
would have caused the master of a vessel to take charge of the
situation and see to the man(eu)vering of the vessel
himself. Instead, Capt. Kavankov chose to rely blindly upon his
pilot, who by this time was proven ill-equipped to cope with the
situation.
xxxxxxxxx
It is apparent that Gavino was negligent but Far Eastern's
employee Capt. Kavankov was no less responsible for as
master of the vessel he stood by the pilot during the
man(eu)vering procedures and was privy to every move the
latter made, as well as the vessel's response to each of the
commands. His choice to rely blindly upon the pilot's skills, to
the point that despite being appraised of a notice of alert he
continued to relinquish control of the vessel to Gavino, shows
indubitably that he was not performing his duties with the
diligence required of him and therefore may be charged with
negligence along with defendant Gavino.[76]
As correctly affirmed by the Court of Appeals -
We are in full accord with the findings and disquisitions of
the Court a quo.
In the present recourse, Captain Viktor Kavankov had
been a mariner for thirty-two years before the incident. When
Gavino was (in) the command of the vessel, Kavankov was
beside Gavino, relaying the commands or orders of Gavino to
the crewmembers-officers of the vessel concerned. He was
thus fully aware of the docking maneuvers and procedure
Gavino undertook to dock the vessel. Irrefragably, Kavankov
was fully aware of the bulk and size of the vessel and its cargo
as well as the weight of the vessel. Kavankov categorically
admitted that, when the anchor and two (2) shackles were
dropped to the sea floor, the claws of the anchor did not hitch
on to any hard object in the seabed. The momentum of the
vessel was not arrested. The use of the two (2) tugboats was
insufficient. The momentum of the vessel, although a little bit
arrested, continued (sic) the vessel going straightforward with
its bow towards the port (Exhibit "A-1"). There was thus a need
for the vessel to move "full-astern" and to drop the other anchor
with another shackle or two '(2), for the vessel to avoid hitting
the pier. Kavankov refused to act even as Gavino failed to
act. Even as Gavino gave mere "half-astern" order, Kavankov
supinely stood by.The vessel was already about twenty (20)
meters away from the pier when Gavino gave the 'full-astern"
order. Even then, Kavankov did nothing to prevent the vessel
from hitting the pier simply because he relied on the
competence and plan of Gavino. While the "full-astern"
maneuver momentarily arrested the momentum of the vessel, it
was, by then, too late. All along, Kavankov stood supinely
beside Gavino, doing nothing but relay the commands of
Gavino. Inscrutably, then, Kavankov was negligent.
xxxxxxxxx
The stark incompetence of Kavankov is competent evidence to
prove the unseaworthiness of the vessel. It has been held that
the incompetence of the navigator, the master of the vessel or
its crew makes the vessel unseaworthy (Tug Ocean Prince
versus United States of America, 584 F. 2nd, page
1151). Hence, the Appellant FESC is likewise liable for the
damage sustained by the Appellee."[77]
We find strong and well-reasoned support in time-tested
American maritime jurisprudence, on which much of our laws
and jurisprudence on the matter are based, for the conclusions
of the Court of Appeals adjudging both Capt. Gavino and
Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared,
through Mr. Justice Swayne, in The Steamship China vs.
Walsh,[78] that it is the duty of the master to interfere in cases of
the pilot's intoxication or manifest incapacity, in cases of danger
which he does not foresee, and in all cases of great necessity.
The master has the same power to displace the pilot that he
has to remove any subordinate officer of the vessel, at his
discretion.
In 1895, the U.S. Supreme Court, this time through Mr.
Justice Brown, emphatically ruled that:
Nor are we satisfied with the conduct of the master in
leaving the pilot in sole charge of the vessel. While the pilot
doubtless supersedes the master for the time being in the
command and navigation of the ship, and his orders must be
obeyed in all matters connected with her navigation, the master
is not wholly absolved from his duties while the pilot is on
board, and may advise with him, and even displace him in case
he is intoxicated or manifestly incompetent. He is still in
command of the vessel, except so far as her navigation is
concerned, and bound to see that there is a sufficient watch on
deck, and that the men are attentive to their duties.
xxx (N)otwithstanding the pilot has charge, it is the duty of
the master to prevent accident, and not to abandon the vessel
entirely to the pilot; but that there are certain duties he has to
discharge (notwithstanding there is a pilot on board) for the
benefit of the owners. x x x that in well conducted ships the
master does not regard the presence of a duly licensed pilot in
compulsory pilot waters as freeing him from every obligation to
attend to the safety of the vessel; but that, while the master
sees that his officers and crew duly attend to the pilot's
orders, he himself is bound to keep a vigilant eye on the
navigation of the vessel, and, when exceptional circumstances
exist, not only to urge upon the pilot to use every precaution,
but to insist upon, such being taken."[79] (Italics for emphasis.)
In Jure vs. United Fruit Co.,[80] which, like the present
petitions, involved compulsory pilotage, with a similar scenario
where at and prior to the time of injury, the vessel was in the
charge of a pilot with the master on the bridge of the vessel
beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in complete
abeyance while a pilot, who is required by law to be accepted,
is in discharge of his functions. x x x It is the duty of the master
to interfere in cases of the pilot's intoxication or manifest
incapacity, in cases of danger which he does not foresee, and
in all cases of great necessity . The master has the same power
to displace the pilot that he has to remove any subordinate
officer of the vessel. He may exercise it, or not, according to his
discretion. There was evidence to support findings that
plaintiff's injury was due to the negligent operation of the
Atenas, and that the master of that vessel was negligent in
failing to take action to avoid endangering a vessel situated as
the City of Canton was and persons or property thereon.
A phase of the evidence furnished support for the
inferences x x x that he negligently failed to suggest to the pilot
the danger which was disclosed, and means of avoiding such
danger; and that the master's negligence in failing to give timely
37
admonition to the pilot proximately contributed to the injury
complained of. We are of opinion that the evidence mentioned
tended to prove conduct of the pilot, known to the master,
giving rise to a case of danger or great necessity, calling for the
intervention of the master. A master of a vessel is not Without
fault in acquiescing in conduct of a pilot which involves
apparent and avoidable danger, whether such danger is to the
vessel upon which the pilot is, or to another vessel, or persons
or property thereon or on shore. (Italics ours.)
Still in another case involving a nearly identical setting, the
captain of a vessel alongside the compulsory pilot was deemed
to be negligent, since, in the words of the court, "he was in a
position to exercise his superior authority if he had deemed the
speed excessive on the occasion in question. I think it
was clearly negligent of him not to have recognized the
danger to any craft moored at Gravell Dock and that he should
have directed the pilot to reduce his speed as required by the
local governmental regulations. His failure amounted to
negligence and renders the respondent liable."[81] (Italics
supplied.) Though a compulsory pilot might be regarded as an
independent contractor, he is at all times subject to the ultimate
control of the ship's master.[82]
In sum, where a compulsory pilot is in charge of a ship,
the master being required to permit him to navigate it, if the
master observes that the pilot is incompetent or physically
incapable, then it is the duty of the master to refuse to permit
the pilot to act. But if no such reasons are present, then the
master is justified in relying upon the pilot, but not blindly.
Under the circumstances of this case, if a situation arose where
the master, exercising that reasonable vigilance which the
master of a ship should exercise, observed, or should have
observed, that the pilot was so navigating the vessel that she
was going, or was likely to go, into danger, and there was in the
exercise of reasonable care and vigilance an opportunity for the
master to intervene so as to save the ship from danger, the
master should have acted accordingly. [83]The master of a
vessel must exercise a degree of vigilance commensurate with
the circumstances.[84]
Inasmuch as the matter of negligence is a question of
fact,[85] we defer to the findings of the trial court, especially as
this is affirmed by the Court of Appeals. [86] But even beyond
that, our own evaluation is that Capt. Kabankov's shared
liability is due mainly to the fact that he failed to act when the
perilous situation should have spurred him into quick and
decisive action as master of the ship. In the face of imminent or
actual danger, he did not have to wait for the happenstance to
occur before countermanding or overruling the pilot. By his own
admission, Capt. Kabankov concurred with Capt. Gavino's
decisions, and this is precisely the reason why he decided not
to countermand any of the latter's orders. Inasmuch as both
lower courts found Capt. Gavino negligent, by expressing full
agreement therewith Capt. Kabankov was just as negligent as
Capt. Gavino.
In general, a pilot is personally liable for damages caused
by his own negligence or default to the owners of the vessel,
and to third parties for damages sustained in a collision. Such
negligence of the pilot in the performance of duty constitutes a
maritime tort.[87] At common law, a shipowner is not liable for
injuries inflicted exclusively by the negligence of a pilot
accepted by a vessel compulsorily.[88] The exemption from
liability for such negligence shall apply if the pilot is actually in
charge and solely in fault. Since, a pilot is responsible only for
his own personal negligence, he cannot be held accountable for
damages proximately caused by the default of others, [89] or, if
there be anything which concurred with the fault of the pilot in
producing the accident, the vessel master and owners are
liable.
Since the colliding vessel is prima facie responsible, the
burden of proof is upon the party claiming benefit of the
exemption from liability.It must be shown affirmatively that the
pilot was at fault, and that there was no fault on the part of the
officers or crew, which might have been conducive to the
damage. The fact that the law compelled the master to take the
pilot does not exonerate the vessel from liability. The parties
who suffer are entitled to have their remedy against the vessel
that occasioned the damage, and are not under necessity to
look to the pilot from whom redress is not always had for
compensation. The owners of the vessel are responsible to the
injured party for the acts of the pilot, and they must be left to
recover the amount as well as they can against him. It cannot
be maintained that the circumstance of having a pilot on board,
and acting in conformity to his directions operate as a discharge
of responsibility of the owners.[90] Except insofar as their liability
is limited or exempted by statute, the vessel or her owner are
liable for all damages caused by the negligence or other
wrongs of the owners or those in charge of the vessel. Where
the pilot of a vessel is not a compulsory one in the sense that
the owner or master of the vessel are bound to accept him, but
is employed voluntarily, the owners of the vessel are, all the
more, liable for his negligent act.[91]
In the United States, the owners of a vessel are not
personally liable for the negligent acts of a compulsory pilot, but
by admiralty law, the fault or negligence of a compulsory pilot is
imputable to the vessel and it may be held liable therefor in
rem. Where, however, by the provisions of the statute the pilot
is compulsory only in the sense that his fee must be paid, and
is not in compulsory charge of the vessel, there is no exemption
from liability. Even though the pilot is compulsory, if his
negligence was not the sole cause of the injury, but the
negligence of the master or crew contributed thereto, the
owners are liable.[92] But the liability of the ship in rem does not
release the pilot from the consequences of his own
negligence.[93] The rationale for this rule is that the master is not
entirely absolved of responsibility with respect to navigation
when a compulsory pilot is in charge. [94]
By way of validation and in light of the aforecited
guidepost rulings in American maritime cases, we declare that
our rulings during the early years of this century in City of
Manila vs. Gambe, [95] China Navigation Co., Ltd.
vs. Vidal,[96] and Yap Tico & Co. vs. Anderson, et al.[97]have
withstood the proverbial test of time and remain good and
relevant case law to this day.
City of Manila stands for the doctrine that the pilot who
was in command and complete control of a vessel, and not the
owners, must be held responsible for an accident which was
solely the result of the mistake of the pilot in not giving proper
orders, and which did not result from the failure of the owners to
equip the vessel with the most modern and improved
machinery. In China Navigation Co., the pilot deviated from the
ordinary and safe course, without heeding the warnings of the
ship captain. It was this careless deviation that caused the
vessel to collide with a pinnacle rock which, though uncharted,
was known to pilots and local navigators. Obviously, the captain
was blameless. It was the negligence of the pilot alone which
was the proximate cause of the collision. The Court could not
but then rule that -
The pilot in the case at bar having deviated from the
usual and ordinary course followed by navigators in passing
through the strait in question, without a substantial reason, was
guilty of negligence, and that negligence having been the
proximate cause of the damages, he is liable for such damages
as usually and naturally flow therefrom. x x x.
x x x (T)he defendant should have known of the existence
and location of the rock upon which the vessel struck while
under his control and management. x x x.
Consistent with the pronouncements in these two earlier
cases, but on a slightly different tack, the Court in Yap Tico &
Co. exonerated the pilot from liability for the accident where the
order's of the pilot in the handling of the ship were disregarded
by the officers and crew of the ship. According to the Court, a
pilot is "x x x responsible for a full knowledge of the channel
and the navigation only so far as he can accomplish it through
the officers and crew of the ship, and I don't see that he can be
held responsible for damage when the evidence shows, as it
38
does in this case, that the officers and crew of the ship failed to
obey his orders." Nonetheless, it is possible for a compulsory
pilot and the master of the vessel to be concurrently negligent
and thus share the blame for the resulting damage as Joint
tortfeasors,[98] but only under the circumstances obtaining in
and demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order
to render a person liable need not be the sole cause of an
injury. It is sufficient that his negligence, concurring with one or
more efficient causes other than plaintiff's, is the proximate
cause of the injury. Accordingly, where several causes combine
to produce injuries, a person is not relieved from liability
because he is responsible for only one of them, it being
sufficient that the negligence of the person charged with injury
is an efficient cause without which the injury would not have
resulted to as great an extent, and that such cause is not
attributable to the person injured. It is no defense to one of the
concurrent tortfeasors that the injury would not have resulted
from his negligence alone, without the negligence or wrongful
acts of the other concurrent tortfeasor.[99] Where several causes
producing an injury are concurrent and each is an efficient
cause without which the injury would not have happened, the
injury may be attributed to all or any of the causes and recovery
may be had against any or all of the responsible persons
although under the circumstances of the case, it may appear
that one of them was more culpable, and that the duty owed by
them to the injured person was not the same. No actor's
negligence ceases to be a proximate cause merely because it
does not exceed the negligence of other actors. Each
wrongdoer is responsible for the entire result and is liable as
though his acts were the sole cause of the injury. [100]
There is no contribution between joint tortfeasors whose
liability is solidary since both of them are liable for the total
damage. Where the concurrent or successive negligent acts or
omissions of two or more persons, although acting
independently, are in combination the direct and proximate
cause of a single injury to a third person, it is impossible to
determine in what proportion each contributed to the injury and
either of them is responsible for the whole injury. Where their
concurring negligence resulted in injury or damage to a third
party, they become joint tortfeasors and are solidarity liable for
the resulting damage under Article 2194[101] of the Civil
Code.[102]
As for the amount of damages awarded by the trial court,
we find the same to be reasonable. The testimony of Mr.
Pascual Barral, witness for PPA, on cross and redirect
examination, appears to be grounded on practical
considerations:
Q So that the cost of the two additional piles as well as the
(two) square meters is already included in this -
P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent
only for the six piles that was damaged as well as the
corresponding two piles.
A The area was corresponding, was increased by almost
two in the actual payment. That was why the contract
was decreased, the real amount wasP1,124,627.40
and the final one is P1300,999.77.
Q Yes, but that P1,300,999.77 included the additional two
new posts.
A It was increased.
Q Why was it increased?
 A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place
in 1980 and you started the repair and reconstruction
in 1982, that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing
damage in 1980 was aggravated for the 2 year period
that the damage portion was not repaired?
A I don't think so because that area was at once marked
and no vehicles can park, it was closed.
Q Even if or even natural elements cannot affect the
damage?
A Cannot, sir.
xxxxxxxxx
Q You said in the cross-examination that there were six
piles damaged by the accident, but that in the
reconstruction of the pier, PPA drove and constructed
8 piles. Will you explain to us why there was change
in the number of piles from the original number?
A In piers where the piles are withdrawn or pulled out, you
cannot re-drive or drive piles at the same point. You
have to redesign the driving of the piles. We cannot
drive the piles at the same point where the piles are
broken or damaged or pulled out. We have to
redesign, and you will note that in the reconstruction,
we redesigned such that it necessitated 8 piles.
Q Why not, why could you not drive the same number of
piles and on the same spot?
A The original location was already disturbed. We cannot
get required bearing capacity. The area is already
disturbed.
Q Nonetheless, if you drove the original number of piles,
six, on different places, would not that have sustained
the same load?
A It will not suffice, sir."[103]
We quote the findings of the lower court with approval:
With regards to the amount of damages that is to be awarded to
plaintiff, the Court finds that the amount of P1,053,300.00 is
justified. Firstly, the doctrine of res ipsa loquitur best expounded
upon in the landmark case of Republic vs. Luzon Stevedoring
Corp. (21 SCRA 279) establishes the presumption that in the
ordinary course of events the ramming of the dock would not
have occurred if proper care was used.
Secondly, the various estimates and plans justify the cost of the
port construction price. The new structure constructed not only
replaced the damaged one but was built of stronger materials to
forestall the possibility of any similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an
award of P1,053,300.00 which represents actual damages
caused by the damage to Berth 4 of the Manila International
Port. Co-defendants Far Eastern Shipping, Capt. Senen Gavino
and Manila Pilots Association are solidarity liable to pay this
amount to plaintiff.[104]
The Solicitor General rightly commented that the adjudicated
amount of damages represents the proportional cost of repair
and rehabilitation of the damaged section of the pier. [105]
Except insofar as their liability is limited or exempted by
statute, the vessel or her owners are liable for all damages
caused by the negligence or other wrongs of the owners or
those in charge of the vessel. As a general rule, the owners or
those in possession and control of a vessel and the vessel are
39
liable for all natural and proximate damages caused to persons
or property by reason of her negligent management or
navigation.[106]
FESC's imputation of PPA's failure to provide a safe and
reliable berthing place is obtuse, not only because it appears to
be a mere afterthought, being tardily raised only in this petition,
but also because there is no allegation or evidence on record
about Berth No. 4 being unsafe and unreliable, although
perhaps it is a modest pier by international standards. There
was, therefore, no error on the part of the Court of Appeals in
dismissing FESC's counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court of
Appeals erred in holding MPA jointly and solidarity liable with its
member pilot,Capt. Gavino, in the absence of employer-
employee relationship and in applying Customs Administrative
Order No. 15-65, as basis for the adjudged solidary liability of
MPA and Capt. Gavino.
The pertinent provisions in Chapter I of Customs
Administrative Order No. 15-65 are:
"PAR. XXVII.-- In all pilotage districts where pilotage is
compulsory, there shall be created and maintained by the pilots
or pilots' association, in the manner hereinafter prescribed, a
reserve fund equal to P1,000.00 for each pilot thereof for the
purpose of paying claims for damages to vessels or property
caused through acts or omissions of its members while
rendered in compulsory pilotage service. In Manila, the reserve
fund shall be P2,000.00 for each pilot.
PAR. XXVIII.-- A pilots' association shall not be liable under
these regulations for damage to any vessel, or other property,
resulting from acts of a member of an association in the actual
performance of his duty for a greater amount than seventy-five
per centum (75%) of its prescribed reserve fund; it being
understood that if the association is held liable for an amount
greater than the amount above-stated, the excess shall be paid
by the personal funds of the member concerned.
PAR. XXXI.-- If a payment is made from the reserve fund of an
association on account of damages caused by a member
thereof, and he shall have been found at fault, such member
shall reimburse the association in the amount so paid as soon
as practicable; and for this purpose, not less than twenty-five
per centum of his dividends shall be retained each month until
the full amount has been returned to the reserve fund.
PAR. XXXIV. - Nothing in these regulations shall relieve any
pilots' association or members thereof, individually or
collectively, from civil responsibility for damages to life or
property resulting from the acts of members in the performance
of their duties.
Correlatively, the relevant provisions of PPA
Administrative Order No. 03-85, which timely amended this
applicable maritime regulation, state:
Article IV
SEC. 17. Pilots' Association -- The Pilots in a Pilotage District
shall organize themselves into a Pilots' Association or firm, the
members of which shall promulgate their own By-Laws not in
conflict with the rules and regulations promulgated by the
Authority. These By-Laws shall be submitted not later than one
(1) month after the organization of the Pilots' Association for
approval by the General Manager of the Authority.Subsequent
amendments thereto shall likewise be submitted for approval.
SEC. 25. Indemnity Insurance and Reserve Fund--
a) Each Pilots' Association shall collectively
insure its membership at the rate
of P50,000.00 each member to
cover in whole or in part any
liability arising from any accident
resulting in damage to vessel(s),
port facilities and other properties
and/or injury to persons or death
which any member may have
caused in the course of his
performance of pilotage duties. x x
x.
b) The Pilotage Association shall likewise set
up and maintain a reserve fund
which shall answer for any part of
the liability referred to in the
immediately preceding paragraph
which is left unsatisfied by the
insurance proceeds, in the
following manner:
1) Each pilot in the Association shall
contribute from his own account an
amount of P4,000.00 (P6,000.00 in
the Manila Pilotage District) to the
reserve fund. This fund shall not
be considered part of the capital of
the Association nor charged as an
expense thereof.
2) Seventy-five percent (75%) of the
reserve fund shall be set aside for
use, in the payment of damages
referred to above incurred in the
actual performance of pilots' duties
and the excess shall be paid from
the personal funds of the member
concerned.
xxxxxxxxx
5) If payment is made from the reserve
fund of an Association on account
of damage caused by a member
thereof who is found at fault, he
shall reimburse the Association in
the amount so paid as soon as
practicable; and for this purpose,
not less than twenty-five
percentum (25%) of his dividend
shall be retained each month until
the full amount has been returned
to the reserve fund. Thereafter,
the pilot involved shall be entitled
to his full dividend.
6) When the reimbursement has been
completed as prescribed in the
preceding paragraph, the ten
percentum (10%) and the interest
withheld from the shares of the
other pilots in accordance with
paragraph (4) hereof shall be
returned to them.
c) Liability of Pilots' Association --
Nothing in these regulations shall
relieve any Pilots' Association or
40
members thereof, individually or
collectively, from any civil,
administrative and/or criminal
responsibility for damages to life
or property resulting from the
individual acts of its members as
well as those of the Association's
employees and crew in the
performance of their duties.
The Court of Appeals, while affirming the trial court's
finding of solidary liability on the part of FESC, MPA and
Capt. Gavino, correctly based MPA's liability not on the concept
of employer-employee relationship between Capt. Gavino and
itself, but on the provisions of Customs Administrative Order
No. 15-65:
The Appellant MPA avers that, contrary to the findings and
disquisitions of the Court a quo, the Appellant Gavino was not
and has never been an employee of the MPA but was only a
member thereof. The Court a quo, it is noteworthy,, did not
state the factual basis on which it anchored its finding that
Gavino was the employee of MPA. We are in accord with
MPA's pose. Case law teaches Us that, for an employer-
employee relationship to exist the confluence of the following
elements must be established: (1) selection and engagement of
employees; (2) the payment of wages; (3) the power of
dismissal; (4) the employer's power to control the employees
with respect to the means and method by which the work is to
be performed (Ruga versus NLRC, 181SCRA 266).
xxxxxxxxx
The liability of MPA for damages is not anchored on Article
2180 of the New Civil Code as erroneously found and declared
by the Court a quo but under the provisions of Customs
Administrative Order No. 15-65, supra, in tandem with the by-
laws of the MPA."[107]
There being no employer-employee relationship, clearly
Article 2180[108] of the Civil Code is inapplicable since there is
no vicarious liability of an employer to speak of. It is so stated in
American law, as follows:
The well-established rule is that pilot associations are immune
to vicarious liability for the tort of their members. They are not
the employer of their members and exercise no control over
them once they take the helm of the vessel. They are also not
partnerships because the members do not function as agents
for the association or for each other. Pilots' associations are
also not liable for negligently assuring, the competence of their
members because as professional associations they made no
guarantee of the professional conduct of their members to the
general public.[109]
Where under local statutes and regulations, pilot
associations lack the necessary legal incidents of responsibility,
they have been held not liable for damages caused by the
default of a member pilot.[110] Whether or not the members of a
pilots' association are in legal effect a copartnership depends
wholly on the powers and duties of the members in relation to
one another under the provisions of the governing statutes and
regulations. The relation of a pilot to his association is not that
of a servant to the master, but of an associate assisting and
participating in a common purpose. Ultimately, the rights and
liabilities between a pilots' association and an individual
member depend largely upon the constitution, articles or by-
laws of the association, subject to appropriate government
regulations.[111]
No reliance can be placed by MPA on the cited American
rulings as to immunity from liability of a pilots' association in
light of existing positive regulation under Philippine law. The
Court of Appeals properly applied the clear and unequivocal
provisions of Customs Administrative Order No. 15-65. In doing
so, it was just being consistent with its finding of the non-
existence of employer-employee relationship between MPA and
Capt. Gavino precludes the application of Article 2180 of the
Civil Code.
True, Customs Administrative Order No. 15-65 does not
categorically characterize or label MPA's liability as solidary in
nature.Nevertheless, a careful reading and proper analysis of
the correlated provisions lead to the conclusion that MPA is
solidarity liable for the negligence of its member pilots, without
prejudice to subsequent reimbursement from the pilot at fault.
Article 1207 of the Civil Code provides that there is
solidary liability only when the obligation expressly so states, or
when the law or the nature of the obligation requires
solidarity. Plainly, Customs Administrative Order No. 15-65,
which as an implementing rule has the force and effect of law,
can validly provide for solidary liability. We note the Solicitor
General's comment hereon, to wit:
x x x Customs Administrative Order No. 15-65 may be a mere
rule and regulation issued by an administrative agency
pursuant to a delegated authority to fix "the details" in the
execution or enforcement of a policy set out in the law
itself. Nonetheless, said administrative order, which adds to the
procedural or enforcing provisions of substantive law, is legally
binding and receives the same statutory force upon going into
effect. In that sense, it has equal, not lower, statutory force and
effect as a regular statute passed by the legislature." [112]
MPA's prayer for modification of the appellate court's
decision under review by exculpating petitioner MPA "from
liability beyond seventy-five percent (75%) of Reserve Fund" is
unnecessary because the liability of MPA under Par. XXVIII of
Customs Administrative Order No. 15-65 is in fact limited to
seventy-five percent (75%) of its prescribed reserve fund, any
amount of liability beyond that being for the personal account of
the erring pilot and subject to reimbursement in case of a
finding of fault by the member concerned. This is clarified by
the Solicitor General:
Moreover, contrary to petitioners pretensions, the provisions of
Customs Administrative Order No. 15-65 do not limit the liability
of petitioner as a pilots' association to an absurdly small
amount of seventy-five per centum (75%) of the member pilots'
contribution of P2,000.00 to the reserve fund. The law speaks
of the entire reserve fund required to be maintained by the
pilots' association to answer (for) whatever liability arising from
the tortious act of its members. And even if the association is
held liable for an amount greater than the reserve fund, the
association may not resist the liability by claiming to be liable
only up to seventy-five per centum (75%) of the reserve fund
because in such instance it has the right to be reimbursed by
the offending member pilot for the excess."[113]
WHEREFORE, in view of all of the foregoing, the
consolidated petitions for review are DENIED and the assailed
decision of the Court of Appeals is AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and Del
Rosario, specifically its associate, Atty. Herbert A. Tria, is
REPRIMANDED and WARNED that a repetition of the same or
similar acts of heedless disregard of its undertakings under the
Rules shall be dealt with more severely.
The original members of the legal team of the Office of
the Solicitor General assigned to this case, namely, Assistant
Solicitor General Roman G. Del Rosario and Solicitor Luis F.
Simon, are ADMONISHED and WARNED that a repetition of
the same or similar acts of unduly delaying proceedings due to
delayed filing of required pleadings shall also be dealt with
more stringently.
The Solicitor General is DIRECTED to look into the
circumstances of this case and to adopt provident measures to
avoid a repetition of this incident and which would ensure
prompt compliance with orders of this Court regarding the
41
timely filing of requisite pleadings, in the interest of just, speedy
and orderly administration of justice.
Let copies of this decision be spread upon the personal
records of the lawyers named herein in the Office of the Bar
Confidant.
SO ORDERED.
Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Panganiban, Martinez, Quisumbing and Purisima,
JJ., concur.
Narvasa, C.J., and Mendoza, J., on leave.
G. SUB-JUDICE RULE
G.R. No. L-30894 March 25, 1970
EDUARDO L. MARTELINO, CIRILO OROPESA, TEODORO
FACELO, RUPERTO AMISOTO, ALBERTO SOTECO,
SOLFERINO TITONG, ET AL., petitioners,
vs.
JOSE ALEJANDRO, RUBEN S. MONTOYA, SIXTO R.
ALHAMBRA, AVELINO C. MENEZ, EFRAIN S. MACLANG,
ET AL., respondents.
Amelito R. Mutuc for petitioners.
Colonel Manuel V. Reyes (Judge Advocate General, GSC),
Major Samuel M. Soriano (JAGS), Major Higinio E. Dacanay,
Jr. (JAGS, PC) and Solicitor General Felix V. Makasiar,
Assistant Solicitor General Crispin V. Bautista, Solicitor Jaime
M. Lantin and Guillermo Nakar, Jr. for respondents.
CASTRO, J.:
This case presents another aspect of the court-martial
proceedings against the petitioner, Major Eduardo
Martelino,alias Abdul Latif Martelino, of the Armed Forces of the
Philippines, and the officers and men under him, for violation of
the 94th and 97th Articles of War, as a result of the alleged
shooting on March 18, 1968 of some Muslim recruits then
undergoing commando training on the island of Corregidor.
Once before the question was raised before this Court whether
the general court-martial, convened on April 6, 1968 to try the
case against the petitioners, acquired jurisdiction over the case
despite the fact that earlier, on March 23, a complaint for
frustrated murder had been filed in the fiscal's office of Cavite
City by Jibin Arula (who claimed to have been wounded in the
incident) against some of the herein petitioners. The
proceedings had to be suspended until the jurisdiction issue
could be decided. On June 23, 1969 this Court ruled in favor of
the jurisdiction of the military court.1
The jurisdiction question thus settled, attention once again
shifted to the general court-martial, but no sooner had the
proceedings resumed than another hitch developed. This came
about as the petitioners, the accused in the court-martial
proceedings, in turn came to this Court, seeking relief against
certain orders of the general court-martial.
It appears that at the hearing on August 12, 1969 the petitioner
Martelino sought the disqualification of the President of the
general court-martial, following the latter's admission that he
read newspaper stories of the Corregidor incident. The
petitioner contended that the case had received such an
amount of publicity in the press and other news media and in
fact was being exploited for political purposes in connection
with the presidential election on November 11, 1969 as to
imperil his right to a fair trial. After deliberating, the military court
denied the challenge.
Thereafter the petitioners raised peremptory challenges against
Col. Alejandro, as president of the court-martial, and Col.
Olfindo, Lt. Col. Camagay, Lt. Col. Valones, Lt. Col. Blanco and
Col. Malig, as members. With regard to peremptory challenges
it was the petitioners' position that for each specification each
accused was entitled to one such challenge. They later
changed their stand and adopted that of the trial judge
advocate that "for each specification jointly tried, all of the
accused are entitled to only 1 peremptory challenge; and that
with respect to the specifications tried commonly, each one of
the accused is entitled to one peremptory challenge." They
there contended that they were entitled to a total of eleven
peremptory challenges. On the other hand the court-martial
ruled that the accused were entitled to only one peremptory
challenge as the specifications were being jointly tried.
The petitioners therefore filed this petition for certiorari and
prohibition, to nullify the orders of the court-martial denying their
challenges, both peremptory and for cause. They allege that
the adverse publicity given in the mass media to the Corregidor
incident, coupled with the fact that it became an issue against
the administration in the 1969 elections, was such as to unduly
influence the members of the court-martial. With respect to
peremptory challenges, they contend that they are entitled to
eleven such challenges, one for each specification.
On August 29, 1969 this Court gave due course to the petition,
required the respondents as members of the general court-
martial to answer and, in the meantime, restrained them from
proceeding with the case.
In their answer the respondents assert that despite the publicity
which the case had received, no proof has been presented
showing that the court-martial's president's fairness and
impartiality have been impaired. On the contrary, they claim,
the petitioner's own counsel expressed confidence in the
"integrity, experience and background" of the members of the
court. As a preliminary consideration, the respondents urge this
Court to throw out the petition on the ground that it has no
power to review the proceedings of the court-martial, "except
for the purpose of ascertaining whether the military court had
jurisdiction of the person and subject matter, and whether,
though having such jurisdiction, it had exceeded its powers in
the sentence pronounced," and that at any rate the petitioners
failed to exhaust remedies available to them within the military
justice system.
I impartiality does not meet the constitutional
It is true that civil courts as a rule exercise no supervision or
correcting power over the proceedings of courts-martial, and
that mere errors in their proceedings are not open to
consideration. "The single inquiry, the test, is jurisdiction." 2 But
it is equally true that in the exercise of their undoubted
discretion, courts-martial may commit such an abuse of
discretion what in the language of Rule 65 is referred to as
"grave abuse of discretion" as to give rise to a defect in their
jurisdiction.3 This is precisely the point at issue in this action
suggested by its nature as one for certiorari and prohibition,
namely, whether in overruling the petitioners' challenges, the
general court-martial committed such an abuse of discretion as
to call for the exercise of the corrective powers of this Court. It
is thus obvious that no other way is open to this Court by which
it may avoid passing upon the constitutional issue thrust upon
it. Nor will the fact that there may be available remedies within
the system of military justice bar review considering that the
questions raised are questions of law. 4
And so the threshold question is whether the publicity given to
the case against the petitioners was such as to prejudice their
right to a fair trial. As already stated, the petitioner Martelino
42
challenged the court-martial president on the ground that
newspaper accounts of what had come to be referred to as the
"Corregidor massacre" might unduly influence the trial of their
case. The petitioner's counsel referred to a news item
appearing in the July 29, 1969 issue of the Daily Mirror and
cited other news reports to the effect that "coffins are being
prepared for the President (of the Philippines) in Jolo," that
according to Senator Aquino "massacre victims were given sea
burial," and that Senator Magsaysay, opposition Vice President
candidate, had gone to Corregidor and "found bullet shells." In
addition the petitioners cite in this Court a Manila
Times editorial of August 26, 1969 which states that "The
Jabidah [code name of the training operations] issue was
bound to come up in the course of the election campaign. The
opposition could not possibly ignore an issue that is heavily
loaded against the administration." The petitioners argue that
under the circumstances they could not expect a just and fair
trial and that, in overruling their challenge for cause based on
this ground, the general court-martial committed a grave abuse
of discretion. In support of their contention they invoke the
rulings of the United States Supreme Court in Irvin v.
Dowd,5 Rideau vs. Louisiana,6 Estes v. Texas,7 andShepard v.
Maxwell.8
An examination of the cases cited, however, will show that they
are widely disparate from this case in a fundamental sense. In
Irvin, for instance, the Supreme Court found that shortly after
the petitioner's arrest in connection with six murders committed
in Vanderburgh County, Indiana, the prosecutor and police
officials issued press releases stating that the petitioner had
confessed to the six murders and that "a barrage of newspaper
headlines articles, cartoons and pictures was unleashed
against him during the six or seven months preceding his trial."
In reversing his conviction, the Court said:
Here the "pattern of deep and bitter
prejudice' shown to be present throughout
the community, ... was clearly reflected in
the sum total of the voir dire examination of
a majority of the jurors finally placed in the
jury box. Eight out of the 12 thought
petitioner was guilty. With such an opinion
permeating their minds, it would be difficult
to say that each could exclude this
preconception of guilt from his deliberations.
The influence that lurks in an opinion once
formed is so persistent that it unconsciously
fights detachment from the processes of the
average man. ... Where one's life is at stake
and accounting for the frailties of human
nature we can only say that in the light of
the circumstances here the finding of
standard.9
Irvin marks the first time a state conviction was struck down
solely on the ground of prejudicial publicity. 10 In the earlier
case of Shepherd v. Florida, 11 which involved elements of
publicity, the reversal of the conviction was based solely on
racial discrimination in the selection of the jury, although to
concurring Justice Jackson, who was joined by Justice
Frankfurter, "It is hard to imagine a more prejudicial influence
than a press release by the officer of the court charged with
defendants' custody stating that they had confessed, and here
just such a statement unsworn to, unseen, uncross-examined
and uncontradicted, was conveyed by the press to the jury. 12
In Rideau, the petitioner, suspect in the robbery of a bank in
Lake Charles, Louisiana and in the kidnapping of three of its
employees, and in the killing of one of them, was similarly given
"trial by publicity." Thus, the day after his arrest, a moving
picture film was taken of him in an "interview" with the sheriff.
The "interview," which lasted approximately 20 minutes,
consisted of interrogation by the sheriff and admission by
Rideau that he had perpetrated the bank robbery, kidnapping
and murder. The interview was seen and heard on television by
24,000 people. Two weeks later he was arraigned. His lawyers
promptly moved for a change of venue but their motion was
denied and Rideau was convicted and sentenced to death.
Rideau's counsel had requested that jurors be excused for
cause, having exhausted all of their peremptory challenges, but
these challenges for cause had been denied by the trial judge.
In reversing his conviction, the Court said:
[W]e hold that it was a denial of due process
of law to refuse the request for a change of
venue, after the people of Calcasieu Parish
had been exposed repeatedly and in depth
to the spectacle of Rideau personally
confessing in detail to the crimes with which
he was later to be charged. For anyone who
has ever watched television the conclusion
cannot be avoided that this spectacle, to the
tens of thousands of people who saw and
heard it, in a very real sense was Rideau's
trial at which he pleaded guilty to murder.
Any subsequent court proceedings in a
community so pervasively exposed to such
a spectacle could be but a hollow
formality. 13
In the third case, Estes, the Court voided a televised criminal
trial for being inherently a denial of due process.
The state ... says that the use of television in
the instant case was "without injustice to the
person immediately concerned," basing its
position on the fact that the petitioner has
established no isolate prejudice and that this
must be shown in order to invalidate a
conviction in these circumstances. The
State paints too broadly in this contention,
for this Court itself has found instances in
which a showing of actual prejudice is not a
prerequisite to reversal. This is such a case.
It is true that in most cases involving claims
of due process deprivations we require a
showing of identifiable prejudice to the
accused. Nevertheless, at times a
procedure employed by the State involves
such a probability that prejudice will result
that it is inherently lacking in due
process. 14
In Sheppard, the celebrated murder case of Sam Sheppard,
who was accused of the murder of his wife Marilyn, the
Supreme Court observed a "carnival atmosphere" in which
"bedlam reigned at the courthouse ... and newsmen took over
practically the entire courtroom, hounding most of the
participants in the trial, especially Sheppard." It observed that
"despite the extent and nature of the publicity to which the jury
was exposed during the trial, the judge refused defense
counsel's other requests that the jury be asked whether they
had read or heard specific prejudicial comment about the case.
... In these circumstances, we assume that some of this
material reached members of the jury." The Court held:
From the cases coming here we note that
unfair and prejudicial news comment on
pending trials has become increasingly
prevalent. Due process requires that the
accused receive a trial by an impartial jury
free from outside influences. Given the
pervasiveness of modern communications
and the difficulty of effacing prejudicial
publicity from the minds of the jurors, the
trial courts must take strong measures to
ensure that the balance is never weighed
against the accused. And appellate tribunals
have the duty to make an independent
evaluation of the circumstances. Of course,
there is nothing that proscribes the press
43
from reporting events that transpire in the
courtroom. But where there is a reasonable
likelihood that prejudicial news prior to trial
will prevent a fair trial, the judge should
continue the case until the threat abates, or
transfer it to another county not so
permeated with publicity. In addition
sequestration of the jury was something the
judge should have sua sponte with counsel.
If publicity during the proceeding threatens
the fairness of the trial, a new trial should be
ordered. But we must remember that
reversals are but palliatives; the cure lies in
those remedial measures that will prevent
the prejudice at its inception. The courts
must take such steps by rule and regulation
that will protect their processes from
prejudicial outside interference. Neither
prosecutors, counsel for defense, the
accused, witnesses, court staff nor
enforcement officers coming under the
jurisdiction of the court should be permitted
to frustrate its function. Collaboration
between counsel and the press as to
information affecting the fairness of a
criminal trial is not only subject to regulation,
but is highly censurable and worthy of
disciplinary measure. 15
In contrast the spate of publicity in this case before us did not
focus on the guilt of the petitioners but rather on the
responsibility of the Government for what was claimed to be a
"massacre" of Muslim trainees. If there was a "trial by
newspaper" at all, it was not of the petitioners but of the
Government. Absent here is a showing of failure of the court-
martial to protect the accused from massive publicity
encouraged by those connected with the conduct of the
trial 16 either by a failure to control the release of information or
to remove the trial to another venue or to postpone it until the
deluge of prejudicial publicity shall have subsided. Indeed we
cannot say that the trial of the petitioners was being held under
circumstances which did not permit the observance of those
imperative decencies of procedure which have come to be
identified with due process.
At all events, even granting the existence of "massive" and
"prejudicial" publicity, since the petitioners here do not contend
that the respondents have been unduly influenced but simply
that they might be by the "barrage" of publicity, we think that the
suspension of the court-martial proceedings has accomplished
the purpose sought by the petitioners' challenge for cause, by
postponing the trial of the petitioner until calmer times have
returned. The atmosphere has since been cleared and the
publicity surrounding the Corregidor incident has so far abated
that we believe the trial may now be resumed in tranquility.
II
Article of War 18 provides that "Each side shall be entitled to
one peremptory challenge, but the law member of the court
shall not be challenged except for cause." The general court-
martial originally interpreted this provision to mean that the
entire defense was entitled to only one peremptory challenge.
Subsequently, on August 27, 1969, it changed its ruling and
held that the defense was entitled to eight peremptory
challenges, but the petitioners declined to exercise their right to
challenge on the ground that this Court had earlier restrained
further proceedings in the court-martial.
It is the submission of the petitioners that "for every charge,
each side may exercise one peremptory challenge," and
therefore because there are eleven charges they are entitled to
eleven separate peremptory challenges. The respondents,
upon the other hand, argue that "for each specification jointly
tried, all of the accused are entitled to only one peremptory
challenge and that with respect to specifications tried commonly
each of the accused is entitled to one peremptory challenge."
Although there are actually a total of eleven specifications
against the petitioners, three of these should be considered as
merged with two other specifications, "since in fact they allege
the same offenses committed in conspiracy, thus leaving a
balance of eight specifications." The general court-martial
thereof takes the position that all the 23 petitioners are entitled
to a total of only eight peremptory challenges.
We thus inescapably confront, and therefore now address, the
issue here posed.
We are of the view that both the petitioners and the general
court-martial misapprehend the true meaning, intent and scope
of Article of War 18. As will hereinafter be
demonstrated, each of the petitioners is entitled as a matter of
right to one peremptory challenge. The number of specifications
and/or charges, and whether the accused are being jointly tried
or undergoing a common trial, are of no moment.
In the early formative years of the infant Philippine Army, after
the passage in 1935 of Commonwealth Act No. 1 (otherwise
known as the National Defense Act), except for a handful of
Philippine Scout officers and graduates of the United States
military and naval academies who were on duty with the
Philippine Army, there was a complete dearth of officers
learned in military law, this aside from the fact that the officer
corps of the developing army was numerically inadequate for
the demands of the strictly military aspects of the national
defense program. Because of these considerations it was then
felt that peremptory challenges should not in the meanwhile be
permitted and that only challenges for cause, in any number,
would be allowed. Thus Article 18 of the Articles of War
(Commonwealth Act No. 408), as worded on September 14,
1938, the date of the approval of the Act, made no mention or
reference to any peremptory challenge by either the trial judge
advocate of a court-martial or by the accused. After December
17, 1958, when the Manual for Courts-Martial 17 of the
Philippine Army became effective, the Judge Advocate
General's Service of the Philippine Army conducted a
continuing and intensive program of training and education in
military law, encompassing the length and breadth of the
Philippines. This program was pursued until the outbreak of
World War II in the Pacific on December 7, 1941. After the
formal surrender of Japan to the allies in 1945, the officer corps
of the Armed Forces of the Philippines had expanded to a very
large number, and a great many of the officers had been
indoctrinated in military law. It was in these environmental
circumstances that Article of War 18 was amended on June 12,
1948 to entitle "each side" to one peremptory challenge, with
the sole proviso that "the law member of court shall not be
challenged except for cause."
By its very inherent nature a peremptory challenge does not
require any reason or ground therefor to exist or to be stated. It
may be used before, during, or after challenges for cause, or
against a member of the court-martial unsuccessfully
challenged for cause, or against a new member if not
previously utilized in the trial. A member challenged
peremptorily is forthwith excused from duty with the court-
martial.
The right of challenge comes from the common law with the
trial by jury itself, and has always been held essential to the
fairness of trial by jury. 18
As was said by Blackstone, and repeated by
Mr. Justice Story: 'In criminal cases, or at
least in capital ones, there is in favorem
vitae, allowed to the prisoner an arbitrary
and capricious species of challenge to a
certain number of jurors, without showing
any cause at all, which is called a
peremptory challenge; a provision full of that
tenderness and humanity to prisoners, for
44
which our English laws are justly famous.
This is grounded on two reasons: 1) As
every one must be sensible, what sudden
impression and unaccountable prejudices
we are apt to conceive upon the bare looks
and gestures of another; and how necessary
it is that a prisoner (when put to defend his
life) should have a good opinion of his jury,
the want of which might totally disconcert
him; the law has conceived a prejudice even
without being able to assign a reason for his
dislike. 2) Because, upon challenges for
cause shown, if the reason assigned prove
insufficient to set aside the juror, perhaps
the bare questioning his indifference may
sometimes provoke a resentment, to
prevent all ill consequences from which, the
prisoner is still at liberty, if he pleases,
peremptorily to set him aside.' 19
The right to challenge is in quintessence the right to reject, not
to select. If from the officers who remain an impartial military
court is obtained, the constitutional right of the accused to a fair
trial is maintained. ... 20
As we have hereinbefore stated, each of the 23 petitioners
(accused before the general court-martial) is entitled to one
peremptory challenge, 21 irrespective of the number of
specifications and/or charges and regardless of whether they
are tried jointly or in common. Three overriding reasons compel
us to this conclusion.
First, a peremptory challenge is afforded to an accused who,
whether rightly or wrongly, honestly feels that the member of
the court peremptorily challenged by him cannot sit in judgment
over him, impartially. Every accused person is entitled to a fair
trial. It is not enough that objectively the members of the court
may be fair and impartial. It is likewise necessary that
subjectively the accused must feel that he is being tried by a
fair and impartial body of officers. Because the petitioners may
entertain grave doubts as to the fairness or impartiality of
distinct, separate and different individual members of the court-
martial, it follows necessarily that each of the accused is
entitled to one peremptory challenge.
Second, Article of War 18 does not distinguish between
common trials and joint trials, nor does it make the nature or
number of specifications and/or charges a determinant.
Reference is made by the respondents here to US military law,
in support of their argument that for each specification jointly
tried all of the accused are entitled to only one peremptory
challenge and with respect to all specifications tried in common
each of the accused is entitled to one peremptory challenge.
We have carefully scrutinized U.S. military law, and it is
unmistakable from our reading thereof that each accused
person, whether in a joint or common trial, unquestionably
enjoys the right to one peremptory challenge. 22
Third, a perceptive analysis of the companion articles 23 to
Article 18 convinces us that the word, "each side," as used in
the said article in reference to the defense, should be construed
to mean each accused person. Thus, Articles of War 17 (Trial
Judge Advocate to Prosecute; Counsel to Defend), 19 (Oath),
21 (Refusal or Failure to Plead), 28 (Court to Announce Action),
29 (Closed Sessions), 30 (Method of Voting), and 36
(Irregularities Effect of), unequivocally speak of and refer to
the "accused" in the singular.
ACCORDINGLY, subject to our pronouncement that each of
the 23 petitioners is entitled to one separate peremptory
challenge, the present petition is denied. The temporary
restraining order issued by this Court on August 29, 1969 is
hereby lifted. No pronouncement as to costs. .
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar,
Fernando, Teehankee, Barredo and Villamor, JJ., concur.
Dizon, J., took no part.
EN BANC
G.R. No. L-12871 July 25, 1959
TIMOTEO V. CRUZ, petitioner,
vs.
FRANCISCO G. H. SALVA, respondent.
Baizas and Balderrama for petitioner.
City Attorney Francisco G. H. Salva in his own behalf.
MONTEMAYOR, J.:
This is a petition for certiorari and prohibition with preliminary
injunction filed by Timoteo V. Cruz against Francisco G. H.
Salva, in his capacity as City Fiscal of Pasay City, to restrain
him from continuing with the preliminary investigation he was
conducting in September, 1957 in connection with the killing of
Manuel Monroy which took place on June 15, 1953 in Pasay
City. To better understand the present case and its implications,
the following facts gathered from the pleadings and the
memoranda filed by the parties, may be stated.
Following the killing of Manuel Monroy in 1953 a number of
persons were accused as involved and implicated in said crime.
After a long trial, the Court of First Instance of Pasay City found
Oscar Castelo, Jose de Jesus, Hipolito Bonifacio, Bienvenido
Mendoza, Francis Berdugo and others guilty of the crime of
murder and sentenced them to death. They all appealed the
sentence although without said appeal, in view of the imposition
of the extreme penalty, the case would have to be reviewed
automatically by this Court. Oscar Castelo sought a new trial
which was granted and upon retrial, he was again found guilty
and his former conviction of sentence was affirmed and
reiterated by the same trial court.
It seems that pending appeal, the late President Magsaysay
ordered a reinvestigation of the case. The purpose of said
reinvestigation does not appear in the record. Anyway,
intelligence agents of the Philippine Constabulary and
investigators of Malacaang conducted the investigation for the
Chief Executive, questioned a number of people and obtained
what would appear to be confession, pointing to persons, other
than those convicted and sentenced by the trial court, as the
real killers of Manuel Monroy.
Counsel for Oscar Castelo and his co-defendants wrote to
respondent Fiscal Salva to conduct a reinvestigation of the
case presumably on the basis of the affidavits and confessions
obtained by those who had investigated the case at the
instance of Malacaang. Fiscal Salva conferred with the
Solicitor General as to what steps he should take. A conference
was held with the Secretary of Justice who decided to have the
results of the investigation by the Philippine Constabulary and
Malacaang investigators made available to counsel for the
appellants.
Taking advantage of this opportunity, counsel for the appellants
filed a motion for new trial with this Tribunal supporting the
same with the so-called affidavits and confessions of some of
those persons investigated, such as the confessions of Sergio
Eduardo y de Guzman, Oscar Caymo, Pablo Canlas, and
written statements of several others. By resolution of this
Tribunal, action on said motion for new trial was deferred until
the case was studied and determined on the merits. In the
45
meantime, the Chief, Philippine Constabulary, head sent to the
Office of Fiscal Salva copies of the same affidavits and
confessions and written statements, of which the motion for
new trial was based, and respondent Salva proceeded to
conduct a reinvestigation designating for said purposes a
committee of three composed of himself as chairman and
Assistant City Attorneys Herminio A. Avendaio and Ernesto A.
Bernabe.
In connection with said preliminary investigation being
conducted by the committee, petitioner Timoteo Cruz was
subpoenaed by respondent to appear at his office on
September 21, 1957, to testify "upon oath before me in a
certain criminal investigation to be conducted at the time and
place by this office against you and Sergio Eduardo, et al., for
murder." On September 19, 1957, petitioner Timoteo Cruz
wrote to respondent Salva asking for the transfer of the
preliminary investigation from September 21, due to the fact
that this counsel, Atty. Crispin Baizas, would attend a hearing
on that same day in Naga City. Acting upon said request for
postponement, Fiscal Salva set the preliminary investigation on
September 24. On that day, Atty. Baizas appeared for petitioner
Cruz, questioned the jurisdiction of the committee, particularly
respondent Salva, to conduct the preliminary investigation in
view of the fact that the same case involving the killing of
Manuel Monroy was pending appeal in this Court, and on the
same day filed the present petition for certiorari and prohibition.
This Tribunal gave due course to the petition for certiorari and
prohibition and upon the filing of a cash bond of P200.00 issued
a writ of preliminary injunction thereby stopping the preliminary
investigation being conducted by respondent Salva.
The connection, if any, that petitioner Cruz had with the
preliminary investigation being conducted by respondent Salva
and his committee was that affidavits and confessions sent to
Salva by the Chief, Philippine Constabulary, and which were
being investigated, implicated petitioner Cruz, even picturing
him as the instigator and mastermind in the killing of Manuel
Monroy.
The position taken by petitioner Cruz in this case is that
inasmuch as the principal case of People vs. Oscar Castelo, et
al., G.R. No. L-10794, is pending appeal and consideration
before us, no court, much less a prosecuting attorney like
respondent Salva, had any right or authority to conduct a
preliminary investigation or reinvestigation of the case for that
would be obstructing the administration of justice and
interferring with the consideration on appeal of the main case
wherein appellants had been found guilty and convicted and
sentenced; neither had respondent authority to cite him to
appear and testify at said investigation.
Respondent Salva, however, contends that if he subpoenaed
petitioner Cruz at all, it was because of the latter's oral and
personal request to allow him to appear at the investigation with
his witnesses for his own protection, possibly, to controvert and
rebut any evidence therein presented against him. Salva claims
that were it not for this request and if, on the contrary, Timoteo
Cruz had expressed any objection to being cited to appear in
the investigation he (Salva) would never have subpoenaed him.
Although petitioner Cruz now stoutly denies having made such
request that he be allowed to appear at the investigation, we
are inclined to agree with Fiscal Salva that such a request had
been made. Inasmuch as he, Timoteo Cruz, was deeply
implicated in the killing of Manuel Monroy by the affidavits and
confessions of several persons who were being investigated by
Salva and his committee, it was but natural that petitioner
should have been interested, even desirous of being present at
that investigation so that he could face and cross examine said
witnesses and affiants when they testified in connection with
their affidavits or confessions, either repudiating, modifying or
ratifying the same. Moreover, in the communication, addressed
to respondent Salva asking that the investigation, scheduled for
September 21, 1957, be postponed because his attorney would
be unable to attend, Timoteo Cruz expressed no opposition to
the subpoena, not even a hint that he was objecting to his being
cited to appear at the investigation.
As to the right of respondent Salva to conduct the preliminary
investigation which he and his committee began ordinarily,
when a criminal case in which a fiscal intervened though
nominally, for according to respondent, two government
attorneys had been designed by the Secretary of Justice to
handle the prosecution in the trial of the case in the court
below, is tried and decided and it is appealed to a higher court
such as this Tribunal, the functions and actuations of said fiscal
have terminated; usually, the appeal is handled for the
government by the Office of the Solicitor General.
Consequently, there would be no reason or occasion for said
fiscal to conduct a reinvestigation to determine criminal
responsibility for the crime involved in the appeal.
However, in the present case, respondent has, in our opinion,
established a justification for his reinvestigation because
according to him, in the original criminal case against Castelo,
et al., one of the defendants named Salvador Realista y de
Guzman was not included for the reason that he was arrested
and was placed within the jurisdiction of the trial court only after
the trial against the other accused had commenced, even after
the prosecution had rested its case and the defense had begun
to present its evidence. Naturally, Realista remained to stand
trial. The trial court, according to respondent, at the instance of
Realista, had scheduled the hearing at an early date, that is in
August, 1957. Respondent claims that before he would go to
trial in the prosecution of Realista he had to chart his course
and plan of action, whether to present the same evidence, oral
and documentary, presented in the original case and trial, or, in
view of the new evidence consisting of the affidavits and
confessions sent to him by the Philippine Constabulary, he
should first assess and determine the value of said evidence by
conducting an investigation and that should he be convinced
that the persons criminally responsible for the killing of Manuel
Monroy were other than those already tried and convicted, like
Oscar Castelo and his co-accused and co-appellants, including
Salvador Realista, then he might act accordingly and even
recommend the dismissal of the case against Realista.
In this, we are inclined to agree with respondent Salva. For, as
contended by him and as suggested by authorities, the duty
and role of prosecuting attorney is not only to prosecute and
secure the conviction of the guilty but also to protect the
innocent.
We cannot overemphasize the necessity of close
scrutiny and investigation of the prosecuting officers
of all cases handled by them, but whilst this court is
averse to any form of vacillation by such officers in the
prosecution of public offenses, it is unquestionable
that they may, in appropriate cases, in order to do
justice and avoid injustice, reinvestigate cases in
which they have already filed the corresponding
informations. In the language of Justice Sutherland of
the Supreme Court of the United States,
the prosecuting officer "is the representative not of an
ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as
compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall be
done. As such, he is in a peculiar and very definite
sense the servant of the law, the twofold aim of which
is that guilt shall not escape nor innocent suffer. He
may prosecute with earnestness and vigor indeed,
he should do so. But, while he may strike had blows,
he is not at liberty to strike foul ones. It is as much his
duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every
legitimate means to bring about a just one. (69 United
States law Review, June, 1935, No. 6, p. 309, cited in
the case of Suarez vs. Platon, 69 Phil., 556)
46
With respect to the right of respondent Salva to cite petitioner to
appear and testify before him at the scheduled preliminary
investigation, under the law, petitioner had a right to be present
at that investigation since as was already stated, he was more
or less deeply involved and implicated in the killing of Monroy
according to the affiants whose confessions, affidavits and
testimonies respondent Salva was considering or was to
consider at said preliminary investigation. But he need not be
present at said investigation because his presence there
implies, and was more of a right rather than a duty or legal
obligation. Consequently, even if, as claimed by respondent
Salva, petitioner expressed the desire to be given an
opportunity to be present at the said investigation, if he latter
changed his mind and renounced his right, and even
strenuously objected to being made to appear at said
investigation, he could not be compelled to do so.
Now we come to the manner in which said investigation was
conducted by the respondent. If, as contended by him, the
purpose of said investigation was only to acquaint himself with
and evaluate the evidence involved in the affidavits and
confessions of Sergio Eduardo, Cosme Camo and others by
questioning them, then he, respondent, could well have
conducted the investigation in his office, quietly, unobtrusively
and without much fanfare, much less publicity.
However, according to the petitioner and not denied by the
respondent, the investigation was conducted not in
respondent's office but in the session hall of the Municipal
Court of Pasay City evidently, to accommodate the big crowd
that wanted to witness the proceeding, including members of
the press. A number of microphones were installed. Reporters
were everywhere and photographers were busy taking pictures.
In other words, apparently with the permission of, if not the
encouragement by the respondent, news photographers and
newsmen had a filed day. Not only this, but in the course of the
investigation, as shown by the transcript of the stenographic
notes taken during said investigation, on two occasions, the
first, after Oscar Caymo had concluded his testimony
respondent Salva, addressing the newspapermen said,
"Gentlemen of the press, if you want to ask questions I am
willing to let you do so and the question asked will be
reproduced as my own"; and the second, after Jose Maratella y
de Guzman had finished testifying and respondent Salva,
addressing the newsmen, again said, "Gentlemen of the press
is free to ask questions as ours." Why respondent was willing to
abdicate and renounce his right and prerogative to make and
address the questions to the witnesses under investigation, in
favor of the members of the press, is difficult for us to
understand, unless he, respondent, wanted to curry favor with
the press and publicize his investigation as much as possible.
Fortunately, the gentlemen of the press to whom he accorded
such unusual privilege and favor appeared to have wisely and
prudently declined the offer and did not ask questions, this
according to the transcript now before us.
But, the newspapers certainly played up and gave wide
publicity to what took place during the investigation, and this
involved headlines and extensive recitals, narrations of and
comments on the testimonies given by the witnesses as well as
vivid descriptions of the incidents that took place during the
investigation. It seemed as though the criminal responsibility for
the killing of Manuel Monroy which had already been tried and
finally determined by the lower court and which was under
appeal and advisement by this Tribunal, was being retried and
redetermined in the press, and all with the apparent place and
complaisance of respondent.
Frankly, the members of this Court were greatly disturbed and
annoyed by such publicity and sensationalism, all of which may
properly be laid at the door of respondent Salva. In this, he
committed what was regard a grievous error and poor judgment
for which we fail to find any excuse or satisfactory explanation.
His actuations in this regard went well beyond the bounds of
prudence, discretion and good taste. It is bad enough to have
such undue publicity when a criminal case is being investigated
by the authorities, even when it being tried in court; but when
said publicity and sensationalism is allowed, even encouraged,
when the case is on appeal and is pending consideration by
this Tribunal, the whole thing becomes inexcusable, even
abhorrent, and this Court, in the interest of justice, is
constrained and called upon to put an end to it and a deterrent
against its repetition by meting an appropriate disciplinary
measure, even a penalty to the one liable.
Some of the members of the Court who appeared to feel more
strongly than the others favored the imposition of a more or less
severe penal sanction. After mature deliberation, we have
finally agreed that a public censure would, for the present, be
sufficient.
In conclusion, we find and hold that respondent Salva was
warranted in holding the preliminary investigation involved in
this case, insofar as Salvador Realista is concerned, for which
reason the writ of preliminary injunction issued stopping said
preliminary investigation, is dissolved; that in view of petitioner's
objection to appear and testify at the said investigation,
respondent may not compel him to attend said investigation, for
which reason, the subpoena issued by respondent against
petitioner is hereby set aside.
DECISION
AZCUNA, J.:
This administrative case stemmed from the events of
the proceedings in Crim. Case No. 5144, entitled People v. Luis
Bucalon Plaza, heard before the sala of Presiding Judge Jose
Manuel P. Tan, Regional Trial Court (RTC) of Surigao City,
Branch 29.
Crim. Case No. 5144 was originally raffled to the sala
of Judge Floripinas C. Buyser, RTC of Surigao City, Branch 30.
In an Order dated March 14, 2002, Judge Buyser denied the
Demurrer to the Evidence of the accused, declaring that the
evidence thus presented by the prosecution was sufficient to
prove the crime of homicide and not the charge of murder.
Consequently, the counsel for the defense filed a Motion to Fix
the Amount of Bail Bond. Respondent Atty. Rogelio Z.
Bagabuyo, then Senior State Prosecutor and the deputized
prosecutor of the case, objected thereto mainly on the
ground that the original charge of murder, punishable
withreclusion perpetua, was not subject to bail under Sec. 4,
Rule 114 of the Rules of Court.[1]

In view of the foregoing, the petition for certiorari and prohibition
is granted in part and denied in part. Considering the
conclusion arrived at by us, respondent Francisco G. H. Salva
is hereby publicly reprehended and censured for the uncalled
for and wide publicity and sensationalism that he had given to
and allowed in connection with his investigation, which we
consider and find to be contempt of court; and, furthermore, he
is warned that a repetition of the same would meet with a more
severe disciplinary action and penalty. No costs.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador,
Concepcion and Barrera, JJ., concur.
In an Order dated August 30, 2002,[2] Judge Buyser
inhibited himself from further trying the case because of the
harsh insinuation of Senior Prosecutor Rogelio Z. Bagabuyo
that he lacks the cold neutrality of an impartial magistrate, by
allegedly suggesting the filing of the motion to fix the amount of
bail bond by counsel for the accused.
The case was transferred to Branch 29 of the RTC of
Surigao City, presided by Judge Jose Manuel P. Tan. In an
Order datedNovember 12, 2002, Judge Tan favorably
resolved the Motion to Fix the Amount of Bail Bond, and fixed
the amount of the bond atP40,000.
Respondent filed a motion for reconsideration of the
Order dated November 12, 2002, which motion was denied for
lack of merit in an Order dated February 10, 2003. In October,
2003, respondent appealed from the Orders dated November
12, 2002 andFebruary 10, 2003, to the Court of Appeals (CA).

Instead of availing himself only of judicial remedies,

respondent caused the publication of an article regarding the
EN BANC Order granting bail to the accused in the August 18, 2003 issue
of the Mindanao Gold Star Daily. The article, entitled Senior
prosecutor lambasts Surigao judge for allowing murder suspect
to bail out, reads:
RE : SUSPENSION OF ATTY. ADM. CASE No. 7006
ROGELIO Z. BAGABUYO, FORMER SENIOR state prosecutor has
SENIOR STATE PROSECUTOR Present: lashed at a judge in Surigao City for allowing
a murder suspect to go out on bail.
PUNO, C.J.,
QUISUMBING, Senior state prosecutor Rogelio
YNARES-SANTIAGO, Bagabuyo lambasted Judge Manuel Tan of
SANDOVAL-GUTIERREZ. the Regional Trial Court (RTC) Branch 29
CARPIO, based inSurigao City for ruling on a
AUST motion that sought a bailbond
RIA- for Luis Plaza who stands charged with
MART murdering a policeman . . . .
INEZ,
CORONA, Plaza reportedly posted a P40-
CARPIO MORALES, thousand bail bond.
AZCUNA,
TINGA, Bagabuyo argued that the crime of
CHICO-NAZARIO, murder is a non-bailable offense. But
GARCIA, Bagabuyo admitted that a judge could still
VELASCO, JR., opt to allow a murder suspect to bail out in
NACHURA, and cases when the evidence of the prosecution
REYES, JJ. is weak.

Promulgated: But in this murder case, Bagabuyo

October 9, 2007 said the judge who previously handled it,
X ------------------------------------------------------------------------------------------ X Judge F[lori]pinas B[uy]ser, described the

47
 evidence to be strong. B[uy]ser inhibited
from the case for an unclear reason.
xxx
Bagabuyo said he would contest
Tans decision before the Court of Appeals
and would file criminal and administrative
charges ofcertiorari against the judge.
Bagabuyuo said he was not afraid
of being cited in contempt by Judge Tan.
This is the only way that the public
would know that there are judges there who
are displaying judicial arrogance. he said. [3]
In an Order dated August 21, 2003, the RTC of
Surigao City, Branch 29, directed respondent and the writer of
the article, Mark Francisco of the Mindanao Gold Star Daily, to
appear in court on September 20, 2003 to explain why they
should not be cited for indirect contempt of court for the
publication of the article which degraded the court and its
presiding judge with its lies and misrepresentation.
The said Order stated that contrary to the statements
in the article, Judge Buyser described the evidence for the
prosecution as not strong, but sufficient to prove the guilt of the
accused only for homicide. Moreover, it was not true that Judge
Buyser inhibited himself from the case for an unclear
reason. Judge Buyser, in an Order dated August 30, 2002,
declared in open court in the presence of respondent that he
was inhibiting himself from the case due to the harsh
insinuation of respondent that he lacked the cold neutrality of
an impartial judge.
On the scheduled hearing of the contempt charge,
Mark Francisco admitted that the Mindanao Gold Star Daily
caused the publication of the article. He disclosed that
respondent, in a press conference, stated that the crime of
murder is non-bailable. When asked by the trial court why he
printed such lies, Mr. Francisco answered that his only source
was respondent.[4] Mr. Francisco clarified that in the statement
alleging that Judge Buyser inhibited himself from the case for
an unclear reason, the phrase for an unclear reason, was
added by the newspapers Executive Editor Herby S. Gomez.[5]
Respondent admitted that he caused the holding of
the press conference, but refused to answer whether he made
the statements in the article until after he shall have filed a
motion to dismiss. For his refusal to answer, the trial court
declared him in contempt of court pursuant to Sec. 3, Rule 71
of the Rules of Court.[6] The Courts Order dated September 30,
2003 reads:
ORDER
Mr. Mark Francisco for publishing
this article which is a lie clothed in half truth
to give it a semblance of truth is hereby
ordered to pay a fine of P10,000. Prosecutor
Bagabuyo, for obstinately refusing to explain
why he should not be cited for contempt and
admitting that the article published in the
Mindanao Gold Star Daily on August 18,
2003 and quoted in the Order of this Court
dated August 21, 2003 which is
contemptuous was caused by him to be
published, is hereby adjudged to have
committed indirect contempt of Court
pursuant to Section 3 of Rule 71 of the
Rules of Court and he is hereby ordered to
suffer the penalty of 30 days in jail. The
BJMP is hereby ordered to arrest
Prosecutor Rogelio Z. Bagabuyo if he does
not put up a bond of P100,000.00.
SO ORDERD.[7]
48
Respondent posted the required bond and was
released from the custody of the law. He appealed the indirect
contempt order to the CA.
Despite the citation of indirect contempt, respondent
presented himself to the media for interviews in Radio Station
DXKS, and again attacked the integrity of Judge Tan and the
trial courts disposition in the proceedings of Crim. Case No.
5144.
In an Order dated October 20, 2003, the RTC of
Surigao City, Branch 29, required respondent to explain and to
show cause within five days from receipt thereof why he should
not be held in contempt for his media interviews that degraded
the court and the presiding judge, and why he should not be
suspended from the practice of law for violating the Code of
Professional Responsibility, specifically Rule 11.05 of Canon
11[8] and Rule 13.02 of Canon 13.[9]
In the Order, the trial court stated that respondent was
interviewed by Jun Clergio, and that the interview was
repeatedly aired on September 30, 2003 and in his news
program between 6:00 and 8:00 a.m. on October 1, 2003. He
was also interviewed by Tony Consing on October 1 and 2,
2003, between 8:00 and 9:00 a.m. in his radio program. In
those radio interviews, respondent allegedly called Judge Tan a
judge who does not know the law, a liar, and a dictator who
does not accord due process to the people.
The hearing for the second contempt charge was set
on December 4, 2003.
On November, 20, 2003, respondent filed an Urgent
Motion for Extension of Time to File Answer to Contempt
alleging that he was saddled with work of equal importance and
needed ample time to answer the same. He also prayed for a
bill of particulars in order to properly prepare for his defense.
In an Order dated November 20, 2003, the trial court
denied the motion. It stated that a bill of particulars is not
applicable in contempt proceedings, and that
respondents actions and statements are detailed in the Order of
October 20, 2003.
On the scheduled hearing of December 4,
2003 respondent neither appeared in court nor informed the
court of his absence.The trial court issued an Order dated
December 4, 2003 cancelling the hearing to give Prosecutor
Bagabuyo all the chances he asks for, and ordered him to
appear on January 12, 2004 to explain in writing or orally why
he should not be cited in contempt of court pursuant to the facts
stated in the Order dated October 20, 2003. However,
respondent did not appear in the scheduled hearing of January
12, 2004.
On January 15, 2004, the trial court received
respondents Answer dated January 8, 2004. Respondent
denied the charge that he sought to be interviewed by radio
station DXKS. He, however, stated that right after the hearing
of September 30, 2003, he was approached by someone who
asked him to comment on the Order issued in open court, and
that his comment does not fall within the concept of indirect
contempt of court. He also admitted that he was interviewed by
his friend, Tony Consing, at the latters instance.He justified his
response during the interview as a simple exercise of his
constitutional right of freedom of speech and that it was not
meant to offend or malign, and was without malice.
On February 8, 2004, the trial court issued an Order,
the dispositive portion of which reads:
WHEREFORE, finding
preponderant evidence that Prosecutor
Bagabuyo has grossly violated the Canons
of the legal profession and [is] guilty of
grave professional misconduct, rendering
him unfit to continue to be entrusted with the
duties and responsibilities belonging to the
 office of an attorney, he is hereby disbarred.
SUSPENDED from the practice of law. Thats it.)

Likewise, he is also found guilty of xxx

indirect contempt of court, for which he is
hereby ordered to suffer the penalty of BAGABUYO : Mao kana ang tinuod, Ton, ug
IMPRISONMENT for ninety (90) days to be kining
served at the Surigao City Jail and to pay akong
the maximum fine of THIRTY THOUSAND guibatonan
PESOS (P30,000.00). Future acts of karon nga
contempt will be dealt with more severely. hunahuna
mahitungo
Let copies of the relevant records d nianang
be immediately forwarded to the Supreme mga
Court for automatic review and for further Huwes
determination of grounds for [the] nga dili
disbarment of Prosecutor Rogelio Z. kahibalo
Bagabuyo.[10] sa balaod,
magkadug
The trial court found respondents denials to be lame ay
as the tape of his interview on October 2, 2003, duly magkalami
transcribed, showed disrespect of the court and its officers, . Kada
thus: adlao
nagatoon
TONY CONSING: Fiscal, nanglabay ang ako. Naga
mga oras, basa ako
nanglabay sa mga
ang gamay bag-
ng ongjurispru
panahon dence ug
ang samad sa atong
sa imong balaod
kasingkasi aron sa
ng pagsiguro
nagpabilin gayod nga
pa ba ni. O inigsang-at
ingnon unya nako
nato duna sa kaso
na bay nga disbar
pagbag-o mentniinin
sa imong g di
huna-huna mahibalo
karon? nga
Huwes,
(Fiscal, after the lapse of time, are you still sigurado
hurt? Or gayod ako
have you nga
not katangtang
changed an siya sa
your mind lisensiya . .
yet?) . . Ang kini
nga
BAGABUYO : Ang akong huna-huna kon Huwes
aduna nga dili
man mahibalo
ugaling sa balaod,
pagbag-o pagatangt
ang angon na,
pagsiguro, dili lamang
ang mga sa pagka-
Huwes Huwes kon
nga dili dili sa
mahibalo pagka-
sa balaod abogado.
tangtango Tan-awa
n pagka ra gyod
abogado, kining
mao kana. iyang
gibuhat
(If my mind has changed at all, it is that I nga Order,
ensure Ton,
that all ang iyang
judges pagkabaka
who are kon . . . .
ignorant of
the law (Thats true, Ton, and this conviction I have
should be now about
judges
49
 who are states that
ignorant of this Order
the law is was given
made in open
firmer by court,
time. I and in
study Gods merc
everyday. I y, he did
read new not
jurispruden state the
ce and the amount
law to of P100,00
insure that 0.00 as bai
when I file l bond. . .
the .)
disbarment
case BAGABUYO : Kay dili man lagi mahibalo sa
against thi balaod, ak
s Judge o
who does siyang gui-ingnan, Your Honor, I have the
notknow right to
his law, I appeal. Mi
am certain balik
that he dayon, ug
loses his miingon
license. . . siya, BJM
. This P arrest
judge who Bagabuyo.
is ignorant
of the (Because
law should he does
not only be not know
removed the law, I
as a judge said, Your
but should Honor, I
also be have the
disbarred. right to
Just take a appeal. Th
look at his en he
Order, came back
Ton, and said,
and see BJMP,
what a liar arrest
he is . . . .) Bagabuyo.
)
xxx
xxx
BAGABUYO : Yes, nag-ingon ang
iyang Orde BAGABUYO : . .
r. . . . P100,000.00 ang iyang guipapiyansa.
. Ngano Naunsa
nga na? Dinhi
nakaingon makita
ako nimo ang
nga bakak iyang
on kini, pagka gros
nag-ingon s
nga kini ignorance
konong or of the law.
der given ...
in open
court, ang (He imposed a bail of P100,000.00. How
kalooy sa come? Thi
dios, ang s is where
iyang orde you will
r sa Korte see his
wala siya gross
mag-ingon ignorance
ug of the law.
kantidad ...)
nga P100,
000.00nga xxx
bail bond.
... TONY CONSING : So karon, unsay plano nimo
karon?
(Yes, his Order said that . . . . Why did I say
that he is a (So what is your plan now?)
liar? It
50
BAGABUYO : Sumala sa akong gui-ingon BAGABUYO : Ah, mi sit
moundang down sab
lang ako ako, conte
kon mpt ra ba
matangtan kadto . . . .
g na siya Mao kana,
sa pagka pero unsa
abogado. . may iyang
.. katuyoan
ang iyang
(As I have said, I will only stop if he is katuyoan
already nga ipa-
disbarred. adto ako
. . .) didto kay
didto, iya
xxx akong
pakauwaw
BAGABUYO : Nasuko siya niini kay an kay iya
hambuger kong
o kuno, sikopon,
pero iya kong
angayan ipa-priso,
niyang pero kay di
hibaw-an man lagi
nga ang mahibalo
trabajo sa sa balaod,
Huwes dili ang iyang
ang gui
pagtan-aw orderan
kon ang BJMP,
tawo intawon
hambuger por dios
o . . . . Ug por Santo,
ang akong Mr. Tan,
gisulti mao pagbasa
lamang intawon ug
ang balaod balaod,
nga siya in naunsa ka
fact at that ba Mr.
time I said Tan? Unsa
he is not may imong
conversant hunahuna
of the law, nga kon
with ikaw
regards to Huwes,
the case of ikaw na
murder. . . ang
. diktador, n
o way, no
(He got angry because I was allegedly sir, ours is
bragging a
but he democratic
should country
know that where all
it is not for and
a judge to everyone
determine is entitled
if a person to due
is a process of
braggart. . law you
. .And did not
what I said accord me
was based due
on the process of
law. In law . . . .
fact, at that
time, I said (I sat down. . . . Thats it. But what was his
he is not purpose?
conversant He made
of the law, me come
with in order to
regards to humiliate
the case of me
murder . . . because
.) he wanted
me
xxx arrested,
he wanted
51
 me sa balaod
imprisoned pagatangt
, but angon
because gayod sa
he is ilang
ignorant of pagka
the law, he Huwes. . .
ordered . Apan
the unsa man
BMJP. For intawon
Gods ang balaod
sake, Mr. ang iyang
Tan, whats gibasa
wrong with niini
you, Mr. nadungga
Tan? Plea n ko nga
se read kini kuno
the siya
law. What madjonger
is your o, mao
thinking? T bitaw
hat when na, madjon
you are a g ang
judge, you iyang
are also a guitunan?
dictator? N
o way, no (I am not worried because I have a truckload
sir, ours is of
a jurispruden
democratic ce that
country judges
where all who are
and ignorant of
everyone the law
is entitled must be
to due removed
process of from the
law you Bench. But
did not what law
accord me has he
due been
process of reading? I
law. . . .) heard that
he is a
TONY CONSING: So mopasaka mahjong af
kang disba icionado (
rment, mal mahjonger
aumon kita o) and that
nga is why he
maaksiyon is studying
an mahjong.[1
1]
kini, with
all this
problem sa
Korte
Suprema.
The trial court concluded that respondent, as a
(So you are filing a disbarment case? We member of the bar and an officer of the court, is duty bound to
hope that uphold the dignity and authority of the court, and should
this be not promote distrust in the administration of justice.
given
action with The trial court stated that it is empowered to suspend
all the respondent from the practice of law under Sec. 28, Rule 138 of
problems the Rules of Court[12] for any of the causes mentioned in Sec.
in the 27[13] of the same Rule. Respondent was given the opportunity
Supreme to be heard, but he opted to be silent. Thus, it held that the
Court.) requirement of due process has been duly satisfied.

BAGABUYO : Dili ako mabalaka niana

kay usa ka
truck ang
akong juris
prudence,
nga ang
mga
Huwes
nga di
mahibalo
52
 In accordance with the provisions of Sec. 29, [14] Rule
138 and Sec. 9,[15] Rule 139 of the Rules of Court, the RTC of
Surigao City, Branch 29, transmitted to the Office of the Bar
Confidant the Statement of Facts of respondents suspension
from the practice of law, dated July 14, 2005, together with the
order of suspension and other relevant documents.
In its Report dated January 4, 2006, the Office of the
Bar Confidant found that the article in the August 18, 2003
issue of the Mindanao Gold Star Daily, which maligned the
integrity and independence of the court and its officers, and
respondents criticism of the trial courts Order dated November
12, 2002, which was aired in radio station DXKS, both in
connection with Crim. Case No. 5144, constitute grave violation
of oath of office by respondent. It stated that the requirement of
due process was complied with when respondent was given an
opportunity to be heard, but respondent chose to remain silent.
The Office of the Bar Confidant recommended the
implementation of the trial courts order of suspension dated
February 8, 2004, and that respondent be suspended from the
practice of law for one year, with a stern warning that
the repetition of a similar offense will be dealt with more
severely.
The Court approves the recommendation of the Office
of the Bar Confidant. It has been reiterated in Gonzaga v.
Villanueva, Jr.[16] that:
A lawyer may be disbarred or
suspended for any violation of his oath, a
patent disregard of his duties, or an odious
deportment unbecoming an
attorney. Among the grounds enumerated in
Section 27, Rule 138 of the Rules of Court
are deceit; malpractice; gross misconduct in
office; grossly immoral conduct; conviction
of a crime involving moral turpitude; any
violation of the oath which he is required to
take before admission to the practice of law;
willful disobedience of any lawful order of a
superior court; corrupt or willful appearance
as an attorney for a party to a case
without authority to do so. The grounds are
not preclusive in nature even as they are
broad enough as to cover practically any
kind of impropriety that a lawyer does or
commits in his professional career or in his
private life. A lawyer must at no time be
wanting in probity and moral fiber which are
not only conditions precedent to his
entrance to the Bar, but are likewise
essential demands for his continued
membership therein.
Lawyers are licensed officers of the courts who are
empowered to appear, prosecute and defend; and upon whom
peculiar duties, responsibilities and liabilities are devolved by
law as a consequence.[17] Membership in the bar imposes upon
them certain obligations.[18] Canon 11 of the Code of
Professional Responsibility mandates a lawyer to observe and
maintain the respect due to the courts and to judicial officers
and [he] should insist on similar conduct by others. Rule 11.05
of Canon 11 states that a lawyer shall submit grievances
against a judge to the proper authorities only.
Respondent violated Rule 11.05 of Canon 11 when he
admittedly caused the holding of a press conference where he
made statements against the Order dated November 12,
2002 allowing the accused in Crim. Case No. 5144 to be
released on bail.
Respondent also violated Canon 11 when he
indirectly stated that Judge Tan was displaying judicial
arrogance in the article entitled, Senior prosecutor lambasts
Surigao judge for allowing murder suspect to bail out, which
appeared in the August 18, 2003issue of the Mindanao Gold
53
Star Daily. Respondents statements in the article, which were
made while Crim. Case No. 5144 was still pending in court, also
violated Rule 13.02 of Canon 13, which states that a lawyer
shall not make public statements in the media regarding a
pending case tending to arouse public opinion for or against a
party.
In regard to the radio interview given to Tony Consing,
respondent violated Rule 11.05 of Canon 11 of the Code of
Professional Responsibility for not resorting to the proper
authorities only for redress of his grievances against Judge
Tan.Respondent also violated Canon 11 for his disrespect of
the court and its officer when he stated that Judge Tan was
ignorant of the law, that as a mahjong aficionado, he was
studying mahjong instead of studying the law, and that he was
a liar.
Respondent also violated the Lawyers Oath, as he
has sworn to conduct [himself] as a lawyer according to the
best of [his] knowledge and discretion with all good fidelity as
well to the courts as to [his] clients.
As a senior state prosecutor and officer of the court,
respondent should have set the example of observing and
maintaining the respect due to the courts and to judicial
officers. Montecillo v. Gica[19] held:
It is the duty of the lawyer to
maintain towards the courts a respectful
attitude. As an officer of the court, it is his
duty to uphold the dignity and authority of
the court to which he owes fidelity,
according to the oath he has taken. Respect
for the courts guarantees the stability of our
democratic institutions which, without such
respect, would be resting on a very shaky
foundation.
The Court is not against lawyers raising grievances
against erring judges but the rules clearly provide for the proper
venue and procedure for doing so, precisely because respect
for the institution must always be maintained.
WHEREFORE, in view of the foregoing, Atty. Rogelio
Z. Bagabuyo is found guilty of violating Rule 11.05, Canon 11
and Rule 13.02, Canon 13 of the Code of Professional
Responsibility, and of violating the Lawyers Oath, for which he
is SUSPENDEDfrom the practice of law for one (1) year
effective upon finality of this Decision, with
a STERN WARNING that the repetition of a similar offense
shall be dealt with more severely.
Let copies of this Decision be furnished the Office of
the Bar Confidant to be appended to respondents personal
record as an attorney, the Integrated Bar of the Philippines, the
Department of Justice, and all courts in the country for their
information and guidance.
No costs.
SO ORDERED.
H. FINANCIAL ACCOUNTABILITY
EN BANC
A.C. No. 6288 June 16, 2006
MARILI C. RONQUILLO, ALEXANDER RONQUILLO and
JON ALEXANDER RONQUILLO, represented by their
Attorney-in-Fact SERVILLANO A.
CABUNGCAL, Complainants,
vs.
ATTY. HOMOBONO T. CEZAR, Respondent.
DECISION
PUNO, J.:
Complainants seek the disbarment or suspension of
respondent from the practice of law for unlawful, dishonest,
immoral and deceitful conduct. They allege that respondent
sold them a piece of property over which he has no right nor
interest, and that he refuses to return to them the amount they
have paid him for it.
Complainant Marili C. Ronquillo is a Filipino citizen currently
residing in Cannes, France, together with her minor children,
Alexander and Jon Alexander.
In May 1999, complainants and respondent entered into a Deed
of Assignment.1 For the price of P1.5M, respondent transferred,
in favor of the complainants, his rights and interests over a
townhouse unit and lot, located at 75 Granwood Villas Subd.,
BF Homes, Quezon City. Respondent also obligated himself to
deliver to complainants a copy of the Contract to Sell he
executed with Crown Asia, the townhouse developer, dated
April 19, 1996. Upon full payment of the purchase price,
respondent further undertook to have Crown Asia execute a
Deed of Absolute Sale over the property in favor of the
complainants.
Respondent received from complainants P750,000.00 upon
execution of the Deed of Assignment. The balance was to be
paid by complainants in four equal quarterly installments
of P187,500.00 each. Thus, complainants issued in favor of
respondent four postdated checks in the amount
of P187,500.00 each. Respondent was able to encash the first
check dated August 17, 1999.2
Complainants subsequently received information from Crown
Asia that respondent has not paid in full the price of the
townhouse at the time he executed the Deed of Assignment.
Respondent also failed to deliver to complainants a copy of the
Contract to Sell he allegedly executed with Crown Asia. For
these reasons, complainant Marili Ronquillo ordered the bank
to stop payment on the second check she issued to respondent
in the amount of P187,500.00.
On March 6, 2000, complainants, through their counsel, wrote
respondent, informing him that they were still willing to pay the
balance of the purchase price of the townhouse on the
condition that respondent work on Crown Asias execution of
the Deed of Absolute Sale in their favor. In the alternative,
complainants demanded the return of the amount
of P937,500.00, plus legal interest, within ten days. 3 The
amount of P937,500.00 represents theP750,000.00 down
payment and the first quarterly installment of P187,500.00
which complainants paid respondent.
In a letter dated May 2, 2000, addressed to
complainants,4 respondent claimed that he was "working now
on a private project which hopefully will be realized not long
from now," and requested for "a period of twenty days from May
15, 2000 within which to either completely pay Crown Asia or
return the money at your (complainants) option." The period
lapsed but respondent did not make good his promise to pay
Crown Asia in full, or return the amount paid by complainants.
On February 21, 2002, complainants counsel sent respondent
a second letter5 demanding the return of the amount
of P937,500.00, including legal interest, for failing to comply
with his promise. The demand was unheeded.
Hence, this administrative complaint 6 that respondent engaged
in unlawful, dishonest, immoral or deceitful conduct. Allegedly,
respondent violated his oath under Rule 1.01, Canon 1 of the
54
Code of Professional Responsibility and he ought to be
disbarred or suspended from the practice of law.
Integrated Bar of the Philippines (IBP) Investigating
Commissioner Milagros V. San Juan, to whom the instant
disciplinary case was assigned for investigation, report and
recommendation, found respondent guilty of dishonest and
deceitful conduct proscribed under Rule 1.01, Canon 1 of the
Code of Professional Responsibility. In her Report dated
October 9, 2003, she recommended that respondent be
suspended from the practice of law for a period of three (3)
years. The IBP Board of Governors, through Resolution No.
XVI-2003-226, dated October 25, 2003, approved the
recommendation of Commissioner San Juan.
We agree.
Under Section 27, Rule 138 of the Revised Rules of Court, a
member of the Bar may be disbarred or suspended on any of
the following grounds: (1) deceit; (2) malpractice or other gross
misconduct in office; (3) grossly immoral conduct; (4)
conviction of a crime involving moral turpitude; (5) violation of
the lawyers oath; (6) willful disobedience of any lawful order of
a superior court; and (7) willfully appearing as an attorney for a
party without authority. Rule 1.01, Canon 1 of the Code of
Professional Responsibility provides that "A lawyer shall not
engage inunlawful, dishonest, immoral or deceitful
conduct." "Conduct," as used in this rule, does not refer
exclusively to the performance of a lawyers professional duties.
This Court has made clear in a long line of cases7 that a lawyer
may be disbarred or suspended for misconduct, whether in his
professional or private capacity, which shows him to be wanting
in moral character, honesty, probity and good demeanor, or
unworthy to continue as an officer of the court.
In the instant case, respondent may have acted in his private
capacity when he entered into a contract with complainant
Marili representing to have the rights to transfer title over the
townhouse unit and lot in question. When he failed in his
undertaking, respondent fell short of his duty under Rule 1.01,
Canon 1 of the Code of Professional Responsibility. It cannot
be gainsaid that it was unlawful for respondent to transfer
property over which one has no legal right of ownership.
Respondent was likewise guilty of dishonest and deceitful
conduct when he concealed this lack of right from
complainants. He did not inform the complainants that he has
not yet paid in full the price of the subject townhouse unit and
lot, and, therefore, he had no right to sell, transfer or assign
said property at the time of the execution of the Deed of
Assignment. His acceptance of the bulk of the purchase price
amounting to Nine Hundred Thirty-Seven Thousand Five
Hundred Pesos (P937,500.00), despite knowing he was not
entitled to it, made matters worse for him.
Respondents adamant refusal to return to complainant Marili
Ronquillo the money she paid him, which was the fruit of her
labor as an Overseas Filipino Worker for ten (10) years, is
morally reprehensible. By his actuations, respondent failed to
live up to the strict standard of morality required by the Code of
Professional Responsibility and violated the trust and respect
reposed in him as a member of the Bar, and an officer of the
court.
Respondents culpability is therefore clear. He received a letter
from complainants counsel demanding the execution of the
Deed of Absolute Sale in favor of the complainants, or, in the
alternative, the return of the money paid by complainants. In
reply to said letter, respondent acknowledged his obligation,
and promised to settle the same if given sufficient time, thus:
xxx
I am working now on a private project which hopefully will be
realized not long from now but I need a little time to fix some
things over. May I please request for a period of 20 days from
May 15, 2000 within which to either completely pay Crown
Asia or return the money at your option. (Emphasis supplied)
In no uncertain terms, respondent admitted not having full
ownership over the subject townhouse unit and lot, as he has
yet to completely pay Crown Asia. Respondent even failed to
produce the Contract to Sell he allegedly executed with Crown
Asia over the subject unit, which would show the extent of his
right of ownership, if any, over the townhouse unit and lot in
question.
To be sure, complainants gave respondent sufficient time to
fulfill his obligation. It was only after almost two years had
passed, after respondent promised to pay Crown Asia or return
to complainants the amount they paid him, that complainants
sent respondent a second letter8 demanding solely the return of
the amount of P937,500.00, including legal interest. By this
time, it was indubitable that respondent would not be able to
perform his end of their agreement.
The practice of law is not a right but a privilege. It is granted
only to those of good moral character.9 The Bar must maintain
a high standard of honesty and fair dealing. 10 Lawyers must
conduct themselves beyond reproach at all times, whether they
are dealing with their clients or the public at large, 11 and a
violation of the high moral standards of the legal profession
justifies the imposition of the appropriate penalty, including
suspension and disbarment.12
Be that as it may, we cannot grant complainants prayer that
respondent be directed to return the money he received from
them in the amount of P937,500.00. Disciplinary proceedings
against lawyers do not involve a trial of an action, but rather
investigations by the court into the conduct of one of its officers.
The only question for determination in these proceedings is
whether or not the attorney is still fit to be allowed to continue
as a member of the Bar.13 Thus, this Court cannot rule on the
issue of the amount of money that should be returned to the
complainants.
IN VIEW WHEREOF, respondent Atty. Homobono T. Cezar
is SUSPENDED from the practice of law for a period ofTHREE
(3) YEARS, effective immediately. Let a copy of this Decision
be furnished the Office of the Bar Confidant, the Integrated Bar
of the Philippines, and all courts for their information and
guidance.
SO ORDERED.
EN BANC
DOLORES C. BELLEZA, A.C. No. 7815
Complainant,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
CORONA,
CARPIO MORALES,
- v e r s u s - CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRI
ON,*
PE
RALTA and
BERSAMIN, JJ.
55
ATTY. ALAN S. MACASA,
Respondent. Promulgated:
July 23, 2009
x------------------------------------------------
----x
RESOLUTION
Per Curiam:
This treats of the complaint for disbarment filed by complainant
Dolores C. Belleza against respondent Atty. Alan S. Macasa for
unprofessional and unethical conduct in connection with the
handling of a criminal case involving complainants son.
On November 10, 2004, complainant went to see respondent
on referral of their mutual friend, Joe Chua. Complainant
wanted to avail of respondents legal services in connection with
the case of her son, Francis John Belleza, who was arrested by
policemen of Bacolod City earlier that day for alleged violation
of Republic Act (RA) 9165.[1] Respondent agreed to handle the
case for P30,000.
The following day, complainant made a partial payment
of P15,000 to respondent thru their mutual friend Chua. On
November 17, 2004, she gave him an additional P10,000. She
paid the P5,000 balance on November 18, 2004. Both
payments were also made thru Chua. On all three occasions,
respondent did not issue any receipt.
On November 21, 2004, respondent received P18,000 from
complainant for the purpose of posting a bond to secure the
provisional liberty of her (complainants) son. Again, respondent
did not issue any receipt. When complainant went to the court
the next day, she found out that respondent did not remit the
amount to the court.
Complainant demanded the return of the P18,000 from
respondent on several occasions but respondent ignored her.
Moreover, respondent failed to act on the case of complainants
son and complainant was forced to avail of the services of the
Public Attorneys Office for her sons defense.
Thereafter, complainant filed a verified complaint [2] for
disbarment against respondent in the Negros Occidental
chapter of the Integrated Bar of the Philippines (IBP). Attached
to the verified complaint was the affidavit [3] of Chua which read:
I, JOE CHUA, of legal age, Filipino and
resident of Purok Sawmill, Brgy. Bata,
Bacolod City, after having been sworn to in
accordance with law, hereby depose and
state:
1. That I am the one who
introduce[d] Mrs. Dolores C. Belleza [to]
Atty. Alan Macasa when she looked for a
lawyer to help her son in the case that the
latter is facing sometime [i]n [the] first week
of November 2004;
2. That by reason of my mutual
closeness to both of them, I am the one
who facilitated the payment of Mrs.
DOLORES C. BELLEZA to Atty. Alan
Macasa;
3. That as far as I know, I received
the following amount from Mrs. Dolores
Belleza as payment for Atty. Alan Macasa:
Date Amount
November 11, 2004 P15,000.00
A week after 10,000.00
November 18, 2004 5,000.00
4. That the above-mentioned
amounts which I supposed as Attorneys
 Fees were immediately forwarded by me to so, he failed to observe Rule 12.03 of the Code of Professional
Atty. [Macasa]; Responsibility:

5. That I am executing this Rule 12.03 A lawyer shall not, after

affidavit in order to attest to the truth of all
the foregoing statements.
x x x x x x x x x[4]
In a letter dated May 23, 2005,[5] the IBP Negros
Occidental chapter transmitted the complaint to the IBPs
Commission on Bar Discipline (CBD).[6]
In an order dated July 13, 2005,[7] the CBD required respondent
to submit his answer within 15 days from receipt thereof.
Respondent, in an urgent motion for extension of time to file an
answer dated August 10, 2005,[8] simply brushed aside the
complaint for being baseless, groundless and malicious without,
however, offering any explanation. He also prayed that he be
given until September 4, 2005 to submit his answer.
Respondent subsequently filed urgent motions [9] for second and
third extensions of time praying to be given until November 4,
2005 to submit his answer. He never did.
When both parties failed to attend the mandatory conference on
April 19, 2006, they were ordered to submit their respective
position papers.[10]
In its report and recommendation dated October 2, 2007, [11] the
CBD ruled that respondent failed to rebut the charges against
him. He never answered the complaint despite several chances
to do so.
The CBD found respondent guilty of violation of Rule 1.01 of
the Code of Professional Responsibility which provides:
Rule 1.01 A lawyer shall not
engage in unlawful, dishonest, immoral, or
deceitful conduct.
It also found him guilty of violation of Rules 16.01 and
16.02 of the Code of Professional Responsibility:
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 others kept by him.
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.
Respondent also ignored the CBDs directive for him
to file his position paper. His propensity to flout the orders of the
CBD showed his lack of concern and disrespect for the
proceedings of the CBD. He disregarded the oath he took when
he was accepted to the legal profession to obey the laws and
the legal orders of the duly constituted legal authorities. He
displayed insolence not only to the CBD but also to this Court
which is the source of the CBDs authority.
Respondents unjustified disregard of the lawful orders
of the CBD was not only irresponsible but also constituted utter
disrespect for the judiciary and his fellow lawyers. [13] His
conduct was unbecoming of a lawyer who is called upon to
obey court orders and processes and is expected to stand
foremost in complying with court directives as an officer of the
court.[14] Respondent should have known that the orders of the
CBD (as the investigating arm of the Court in administrative
cases against lawyers) were not mere requests but directives
which should have been complied with promptly and
completely.[15]
RESP
OND
ENT
GRO
SSLY
NEG
LECT
ED
THE
CAU
SE
OF
HIS
CLIE
NT
Respondent undertook to defend the criminal case
against complainants son. Such undertaking imposed upon him
the following duties:

The CBD ruled that respondent lacked good moral CANON 17 A LAWYER OWES FIDELITY
character and that he was unfit and unworthy of the privileges TO THE CAUSE OF HIS CLIENT AND HE
conferred by law on him as a member of the bar. The CBD SHALL BE MINDFUL OF THE TRUST
recommended a suspension of six months with a stern warning AND CONFIDENCE REPOSED IN HIM.
that repetition of similar acts would merit a more severe
sanction. It also recommended that respondent be ordered to CANON 18 A LAWYER SHALL SERVE
return to complainant theP18,000 intended for the provisional HIS CLIENT WITH COMPETENCE AND
liberty of the complainants son and the P30,000 attorneys fees. DILIGENCE.

The Board of Governors of the IBP adopted and approved the xxxxxxxxx
report and recommendation of the CBD with the modification
that respondent be ordered to return to complainant only the Rule 18.03 A lawyer shall not neglect a
amount of P30,000 which he received as attorneys fees.[12] legal matter entrusted to him, and his
negligence in connection therewith shall
We affirm the CBDs finding of guilt as affirmed by the IBP render him liable.
Board of Governors but we modify the IBPs recommendation
as to the liability of respondent. xxxxxxxxx

RESPONDENT DISRESPECTED CANON 19 A LAWYER SHALL

LEGAL PROCESSES REPRESENT HIS CLIENT WITH ZEAL
WITHIN THE BOUNDS OF THE LAW.

Respondent was given more than enough opportunity
to answer the charges against him. Yet, he showed indifference
to the orders of the CBD for him to answer and refute the
accusations of professional misconduct against him. In doing
56
A lawyer who accepts the cause of a client commits to
devote himself (particularly his time, knowledge, skills and
effort) to such cause. He must be ever mindful of the trust and
confidence reposed in him, constantly striving to be worthy
thereof. Accordingly, he owes full devotion to the interest of his
client, warm zeal in the maintenance and defense of his clients
rights and the exertion of his utmost learning, skill and ability to
ensure that nothing shall be taken or withheld from his client,
save by the rules of law legally applied. [16]
A lawyer who accepts professional employment from
a client undertakes to serve his client with competence and
diligence.[17] He must conscientiously perform his duty arising
from such relationship. He must bear in mind that by accepting
a retainer, he impliedly makes the following representations:
that he possesses the requisite degree of learning, skill and
ability other lawyers similarly situated possess; that he will exert
his best judgment in the prosecution or defense of the litigation
entrusted to him; that he will exercise reasonable care and
diligence in the use of his skill and in the application of his
knowledge to his clients cause; and that he will take all steps
necessary to adequately safeguard his clients interest.[18]
A lawyers negligence in the discharge of his
obligations arising from the relationship of counsel and client
may cause delay in the administration of justice and prejudice
the rights of a litigant, particularly his client. Thus, from the
perspective of the ethics of the legal profession, a lawyers
lethargy in carrying out his duties to his client is both
unprofessional and unethical.[19]
If his clients case is already pending in court, a lawyer
must actively represent his client by promptly filing the
necessary pleading or motion and assiduously attending the
scheduled hearings. This is specially significant for a lawyer
who represents an accused in a criminal case.
The accused is guaranteed the right to counsel under
the Constitution.[20] However, this right can only be meaningful if
the accused is accorded ample legal assistance by his lawyer:
... The right to counsel proceeds from the
fundamental principle of due process which
basically means that a person must be
heard before being condemned. The due
process requirement is a part of a person's
basic rights; it is not a mere formality that
may be dispensed with or performed
perfunctorily.
The right to counsel must be
more than just the presence of a lawyer in
the courtroom or the mere propounding of
standard questions and objections. The
right to counsel means that the accused is
amply accorded legal assistance extended
by a counsel who commits himself to the
cause for the defense and acts accordingly.
The right assumes an active involvement
by the lawyer in the proceedings,
particularly at the trial of the case, his
bearing constantly in mind of the basic
rights of the accused, his being well-versed
on the case, and his knowing the
fundamental procedures, essential laws
and existing jurisprudence.[21]
[T]he right of an accused to counsel is
beyond question a fundamental right.
Without counsel, the right to a fair trial itself
would be of little consequence, for it is
through counsel that the accused secures
his other rights. In other words, the right to
counsel is the right to effective assistance
of counsel.[22]
The right of an accused to counsel finds substance in
the performance by the lawyer of his sworn duty of fidelity to his
client.[23] Tersely put, it means an effective, efficient and truly
decisive legal assistance, not a simply perfunctory
representation.[24]
In this case, after accepting the criminal case against
complainants son and receiving his attorneys fees, respondent
57
did nothing that could be considered as effective and efficient
legal assistance. For all intents and purposes, respondent
abandoned the cause of his client. Indeed, on account of
respondents continued inaction, complainant was compelled to
seek the services of the Public Attorneys Office. Respondents
lackadaisical attitude towards the case of complainants son
was reprehensible. Not only did it prejudice complainants son, it
also deprived him of his constitutional right to counsel.
Furthermore, in failing to use the amount entrusted to him for
posting a bond to secure the provisional liberty of his client,
respondent unduly impeded the latters constitutional right to
bail.
RESPONDENT FAILED TO RETURN
HIS CLIENTS MONEY
The fiduciary nature of the relationship between
counsel and client imposes on a lawyer the duty to account for
the money or property collected or received for or from the
client.[25]
When a lawyer collects or receives money from his
client for a particular purpose (such as for filing fees,
registration fees, transportation and office expenses), he should
promptly account to the client how the money was spent. If he
does not use the money for its intended purpose, he must
immediately return it to the client.[26] His failure either to render
an accounting or to return the money (if the intended purpose of
the money does not materialize) constitutes a blatant disregard
of Rule 16.01 of the Code of Professional Responsibility. [27]
Moreover, a lawyer has the duty to deliver his clients
funds or properties as they fall due or upon demand. [28] His
failure to return the clients money upon demand gives rise to
the presumption that he has misappropriated it for his own use
to the prejudice of and in violation of the trust reposed in him by
the client.[29] It is a gross violation of general morality as well as
of professional ethics; it impairs public confidence in the legal
profession and deserves punishment.[30] Indeed, it may border
on the criminal as it may constitute a prima facie case of
swindling or estafa.
Respondent never denied receiving P18,000 from
complainant for the purpose of posting a bond to secure the
provisional liberty of her son. He never used the money for its
intended purpose yet also never returned it to the client. Worse,
he unjustifiably refused to turn over the amount to complainant
despite the latters repeated demands.
Moreover, respondent rendered no service that would
have entitled him to the P30,000 attorneys fees. As a rule, the
right of a lawyer to a reasonable compensation for his services
is subject to two requisites: (1) the existence of an attorney-
client relationship and (2) the rendition by the lawyer of services
to the client.[31] Thus, a lawyer who does not render legal
services is not entitled to attorneys fees. Otherwise, not only
would he be unjustly enriched at the expense of the client, he
would also be rewarded for his negligence and irresponsibility.
RESPONDENT FAILED TO UPHOLD THE INTEGRITY AND
DIGNITY OF THE LEGAL PROFESSION
For his failure to comply with the exacting ethical
standards of the legal profession, respondent failed to obey
Canon 7 of the Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL
TIMES UPHOLD THE INTEGRITY AND
THE DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED BAR.
(emphasis supplied)
 Indeed, a lawyer who fails to abide by the Canons and III FOR THE LIVE MEDIA COVERAGE OF THE CARPIO,
Rules of the Code of Professional Responsibility disrespects MAGUINDANAO MASSACRE TRIAL.
the said Code and everything that it stands for. In so doing, he CARPIO MOR
disregards the ethics and disgraces the dignity of the legal
profession. VELASCO, JR

LEONARDO-D
Lawyers should always live up to the ethical
standards of the legal profession as embodied in the Code of BRION,
Professional Responsibility. Public confidence in law and in
lawyers may be eroded by the irresponsible and improper PERALTA,
conduct of a member of the bar.[32] Thus, every lawyer should
act and comport himself in a manner that would promote public BERSAMIN,
confidence in the integrity of the legal profession.[33]
DEL CASTILLO
Respondent was undeserving of the trust reposed in
ABAD,
him. Instead of using the money for the bond of the
complainants son, he pocketed it. He failed to observe candor, VILLARAMA, J
fairness and loyalty in his dealings with his client. [34] He failed to
live up to his fiduciary duties. By keeping the money for himself PEREZ,
despite his undertaking that he would facilitate the release of
complainants son, respondent showed lack of moral MENDOZA, an
principles. His transgression showed him to be a swindler, a
deceitful person and a shame to the legal profession. SERENO, JJ.

WHEREFORE, respondent Atty. Alan S. Macasa is hereby

found GUILTY not only of dishonesty but also of professional
Promulgated:
misconduct for prejudicing Francis John Bellezas right to
counsel and to bail under Sections 13 and 14(2), Article III of
the Constitution, and for violating Canons 1, 7, 17, 18 and 19
and Rules 12.03, 16.01, 16.02, 16.03 and 18.03 of the Code of June 14, 2011
Professional Responsibility. He is therefore DISBARRED from
the practice of law effective immediately.

Respondent is hereby ORDERED to return to complainant

Dolores C. Belleza the amounts of P30,000 and P18,000 with
interest at 12% per annum from the date of promulgation of this
decision until full payment. Respondent is further DIRECTED to A.M. No. 10-11
submit to the Court proof of payment of the amount within ten
days from payment. Failure to do so will subject him to criminal
prosecution.

Let copies of this resolution be furnished the Office of the Bar

Confidant to be entered into the records of respondent Atty. x-----------------------------------------------------------------------------------
Alan S. Macasa and the Office of the Court Administrator to be -----x
furnished to the courts of the land for their information and
guidance.

SO ORDERED.

RE: PETITION FOR RADIO AND TELEVISION A.M. No. 10-11-5-SC

COVERAGE OF THE MULTIPLE MURDER CASES RESOLUTION
AGAINST MAGUINDANAO GOVERNOR ZALDY
AMPATUAN, ET AL.,

x ----------------------------------- x CARPIO MORALES, J.:

RE: PETITION FOR THE CONSTITUTION OF THE

PRESENT COURT HANDLING THE TRIAL OF THE
On November 23, 2009, 57 people including 32 journalists and
MASSACRE OF 57 PERSONS, INCLUDING 32
media practitioners were killed while on their way to Shariff
JOURNALISTS, IN AMPATUAN, MAGUINDANAO
Aguak in Maguindanao. Touted as the worst election-related
INTO A SPECIAL COURT HANDLING THIS CASE
violence and the most brutal killing of journalists in recent
ALONE FOR THE PURPOSE OF ACHIEVING
history, the tragic incident which came to be known as the
GENUINE SPEEDY TRIAL and FOR THE SETTING
Maguindanao Massacre spawned charges for 57 counts of
UP OF VIDEOCAM AND MONITOR JUST OUTSIDE
murder and an additional charge of rebellion against 197
A.M. No. 10-11-6-SC
THE COURT FOR JOURNALISTS TO COVER AND
accused, docketed as Criminal Case Nos. Q-09-162148-72, Q-
FOR THE PEOPLE TO WITNESS THE TRIAL OF THE
09-162216-31, Q-10-162652-66, and Q-10-163766, commonly
DECADE TO MAKE IT TRULY PUBLIC AND
entitled People v. Datu Andal Ampatuan, Jr., et al. Following
IMPARTIAL AS COMMANDED BY THE
the transfer of venue and the reraffling of the cases, the cases
CONSTITUTION,
are being tried by Presiding Judge Jocelyn Solis-Reyes of
Present: Branch 221 of the Regional Trial Court (RTC) of Quezon
x ---------------------------------x
City inside Camp Bagong Diwa in Taguig City.

CORONA,* C.J.,
Almost a year later or on November 19, 2010, the National
RE: LETTER OF PRESIDENT BENIGNO S. AQUINO Union of Journalists of the Philippines (NUJP), ABS-CBN
58
Broadcasting Corporation, GMA Network, Inc., relatives of the
victims,[1] individual journalists[2] from various media entities,
and members of the academe[3] filed a petition before this Court
praying that live television and radio coverage of the trial in
these criminal cases be allowed, recording devices (e.g., still
cameras, tape recorders) be permitted inside the courtroom to
assist the working journalists, and reasonable guidelines be
formulated to govern the broadcast coverage and the use of
devices.[4] The Court docketed the petition as A.M. No. 10-11-
5-SC.

In a related move, the National Press Club of the

Philippines[5] (NPC) and Alyansa ng Filipinong
Mamamahayag[6] (AFIMA) filed on November 22, 2010 a
petition praying that the Court constitute Branch 221 of RTC-
Quezon City as a special court to focus only on the
Maguindanao Massacre trial to relieve it of all other pending
cases and assigned duties, and allow the installation inside the
courtroom of a sufficient number of video cameras that shall
beam the audio and video signals to the television monitors
outside the court.[7] The Court docketed the petition as A.M. No.
10-11-6-SC.

President Benigno S. Aquino III, by letter of November 22,

2010[8] addressed to Chief Justice Renato Corona, came out in
support of those who have petitioned [this Court] to permit
television and radio broadcast of the trial." The President
expressed earnest hope that [this Court] will, within the many
considerations that enter into such a historic deliberation,

59
attend to this petition with the dispatch, dispassion and
humaneness, such a petition merits.[9] The Court docketed the
matter asA.M. No. 10-11-7-SC.
By separate Resolutions of November 23, 2010, [10] the
Court consolidated A.M. No. 10-11-7-SC with A.M. No. 10-11-5-
SC. The Court shall treat in a separate Resolution A.M. No. 10-
11-6-SC.
Meanwhile, various groups[11] also sent to the Chief Justice
their respective resolutions and statements bearing on these
matters.
The principal accused in the cases, Andal Ampatuan, Jr.
(Ampatuan), filed a Consolidated Comment of December 6,
2010 in A.M. No. 10-11-5-SC and A.M. No. 10-11-7-SC. The
President, through the Office of the Solicitor General (OSG),
and NUJP, et al. filed their respective Reply of January 18,
2011 and January 20, 2011. Ampatuan also filed a Rejoinder
of March 9, 2011.
On Broadcasting the Trial of the Maguindanao Massacre
Cases
Petitioners seek the lifting of the absolute ban on live television
and radio coverage of court proceedings. They principally urge
the Court to revisit the 1991 ruling in Re: Live TV and Radio
Coverage of the Hearing of President Corazon C. Aquinos Libel
Case[12]and the 2001 ruling in Re: Request Radio-TV Coverage
of the Trial in the Sandiganbayan of the Plunder Cases Against
the Former President Joseph E. Estrada[13] which rulings, they
contend, violate the doctrine that proposed restrictions on
constitutional rights are to be narrowly construed and outright
prohibition cannot stand when regulation is a viable alternative.
Petitioners state that the trial of the Maguindanao Massacre
cases has attracted intense media coverage due to the
gruesomeness of the crime, prominence of the accused, and
the number of media personnel killed. They inform that
reporters are being frisked and searched for cameras,
recorders, and cellular devices upon entry, and that under strict
orders of the trial court against live broadcast coverage, the
number of media practitioners allowed inside the courtroom has
been limited to one reporter for each media institution.
The record shows that NUJP Vice-Chairperson Jose Jaime
Espina, by January 12, 2010 letter [14] to Judge Solis-Reyes,
requested a dialogue to discuss concerns over media coverage
of the proceedings of the Maguindanao Massacre cases. Judge
Solis-Reyes replied, however, that matters concerning media
coverage should be brought to the Courts attention through
appropriate motion.[15]Hence, the present petitions which assert
the exercise of the freedom of the press, right to information,
right to a fair and public trial, right to assembly and to petition
the government for redress of grievances, right of free access
to courts, and freedom of association,subject to regulations to
be issued by the Court.
The Court partially GRANTS pro hac vice petitioners prayer
for a live broadcast of the trial court
proceedings, subject to the guidelines which shall be
enumerated shortly.
60
Putts Law[16] states that technology is dominated by two types
of people: those who understand what they do not manage, and
those who manage what they do not understand. Indeed,
members of this Court cannot strip their judicial robe and don
the experts gown, so to speak, in a pretense to foresee and
fathom all serious prejudices or risks from the use of technology
inside the courtroom.
A decade after Estrada and a score after Aquino, the Court is
once again faced with the same task of striking that delicate
balance between seemingly competing yet
certainly complementary rights.
The indication of serious risks posed by live media coverage to
the accuseds right to due process, left unexplained and
unexplored in the era obtaining in Aquino and Estrada, has left
a blow to the exercise of press freedom and the right to public
information.
The rationale for an outright total prohibition was
shrouded, as it is now, inside the comfortable cocoon of a
feared speculation which no scientific study in the
Philippine setting confirms, and which fear, if any, may be
dealt with by safeguards and safety nets under existing
rules and exacting regulations.
In this day and age, it is about time to craft a win-win
situation that shall not compromise rights in the criminal
administration of justice, sacrifice press freedom and allied
rights, and interfere with the integrity, dignity and solemnity of
judicial proceedings.Compliance with regulations, not
curtailment of a right, provides a workable solution to the
concerns raised in these administrative matters, while, at the
same time, maintaining the same underlying principles upheld
in the two previous cases.
The basic principle upheld in Aquino is firm [a] trial of any
kind or in any court is a matter of serious importance to all
concerned and should not be treated as a means of
entertainment[, and t]o so treat it deprives the court of the
dignity which pertains to it and departs from the orderly and
serious quest for truth for which our judicial proceedings are
formulated. The observation that [m]assive intrusion of
representatives of the news media into the trial itself can so
alter and destroy the constitutionally necessary atmosphere
and decorum stands.
The Court concluded in Aquino:
Considering the prejudice it poses to the defendant's right to
due process as well as to the fair and orderly administration of
justice, and considering further that the freedom of the press
and the right of the people to information may be served and
satisfied by less distracting, degrading and prejudicial means,
live radio and television coverage of court proceedings shall not
be allowed. Video footages of court hearings for news purposes
shall be restricted and limited to shots of the courtroom, the
judicial officers, the parties and their counsel taken prior to the
commencement of official proceedings. No video shots or
photographs shall be permitted during the trial proper.
Accordingly, in order to protect the parties' right to due process,
to prevent the distraction of the participants in the proceedings
and in the last analysis, to avoid miscarriage of justice, the
Court resolved to PROHlBIT live radio and television coverage
of court proceedings. Video footage of court hearings for news
purposes shall be limited and restricted as above indicated. [17]
The Court had another unique opportunity in Estrada to revisit
the question of live radio and television coverage of court
proceedings in a criminal case. It held that [t]he propriety of
granting or denying the instant petition involve[s] the weighing
out of the constitutional guarantees of freedom of the press and
the right to public information, on the one hand, and the
fundamental rights of the accused, on the other hand, along
with the constitutional power of a court to control its
proceedings in ensuring a fair and impartial trial. The Court
disposed:
The Court is not all that unmindful of recent technological and
scientific advances but to chance forthwith the life or liberty of
any person in a hasty bid to use and apply them, even before
ample safety nets are provided and the concerns heretofore
expressed are aptly addressed, is a price too high to pay.
WHEREFORE, the petition is DENIED.
SO ORDERED.[18]
In resolving the motion for reconsideration, the Court
in Estrada, by Resolution of September 13, 2001, provided a
glimmer of hope when it ordered the audio-visual recording of
the trial for documentary purposes, under the following
conditions:
x x x (a) the trial shall be recorded in its entirety, excepting such
portions thereof as the Sandiganbayan may determine should
not be held public under Rule 119, 21 of the Rules of Criminal
Procedure; (b) cameras shall be installed inconspicuously
inside the courtroom and the movement of TV crews shall be
regulated consistent with the dignity and solemnity of the
proceedings; (c) the audio-visual recordings shall be made for
documentary purposes only and shall be made without
comment except such annotations of scenes depicted therein
as may be necessary to explain them; (d) the live broadcast of
the recordings before the Sandiganbayan shall have rendered
its decision in all the cases against the former President shall
be prohibited under pain of contempt of court and other
sanctions in case of violations of the prohibition; (e) to ensure
that the conditions are observed, the audio-visual recording of
the proceedings shall be made under the supervision and
control of the Sandiganbayan or its Division concerned and
shall be made pursuant to rules promulgated by it; and (f)
simultaneously with the release of the audio-visual recordings
for public broadcast, the original thereof shall be deposited in
the National Museum and the Records Management and
Archives Office for preservation and exhibition in accordance
with law.[19]
Petitioners note that the 1965 case of Estes v.
Texas[20] which Aquino and Estrada heavily cited, was borne
out of the dynamics of a jury system, where the considerations
for the possible infringement of the impartiality of a jury, whose
members are not necessarily schooled in the law, are different
from that of a judge who is versed with the rules of
evidence. To petitioners, Estes also does not represent the
most contemporary position of the United States in the wake of
latest jurisprudence[21] and statistical figures revealing that as of
61
2007 all 50 states, except the District of Columbia, allow
television coverage with varying degrees of openness.
Other jurisdictions welcome the idea of media coverage. Almost
all the proceedings of United Kingdoms Supreme Court are
filmed, and sometimes broadcast.[22] The International Criminal
Court broadcasts its proceedings via video streaming in the
internet.[23]
On the media coverages influence on judges, counsels and
witnesses, petitioners point out that Aquino and Estrada,
like Estes, lack empirical evidence to support the sustained
conclusion. They point out errors of generalization where the
conclusion has been mostly supported by studies on American
attitudes, as there has been no authoritative study on the
particular matter dealing with Filipinos.
Respecting the possible influence of media coverage on the
impartiality of trial court judges, petitioners correctly explain that
prejudicial publicity insofar as it undermines the right to a fair
trial must pass the totality of circumstances test, applied
in People v. Teehankee, Jr.[24] and Estrada v. Desierto,[25] that
the right of an accused to a fair trial is not incompatible to a free
press, that pervasive publicity is not per se prejudicial to the
right of an accused to a fair trial, and that there must be
allegation and proof of the impaired capacity of a judge to
render a bias-free decision. Mere fear of possible undue
influence is not tantamount to actual prejudice resulting in the
deprivation of the right to a fair trial.
Moreover, an aggrieved party has ample legal remedies. He
may challenge the validity of an adverse judgment arising from
a proceeding that transgressed a constitutional right. As pointed
out by petitioners, an aggrieved party may early on move for a
change of venue, for continuance until the prejudice from
publicity is abated, for disqualification of the judge, and for
closure of portions of the trial when necessary. The trial court
may likewise exercise its power of contempt and issue gag
orders.
One apparent circumstance that sets the Maguindanao
Massacre cases apart from the earlier cases is the impossibility
of accommodating even the parties to the cases the private
complainants/families of the victims and other witnesses inside
the courtroom. On public trial, Estrada basically discusses:
An accused has a right to a public trial but it is a right that
belongs to him, more than anyone else, where his life or liberty
can be held critically in balance. A public trial aims to ensure
that he is fairly dealt with and would not be unjustly condemned
and that his rights are not compromised in secrete conclaves of
long ago. A public trial is not synonymous with publicized trial; it
only implies that the court doors must be open to those who
wish to come, sit in the available seats, conduct themselves
with decorum and observe the trial process. In the constitutional
sense, a courtroom should have enough facilities for a
reasonable number of the public to observe the proceedings,
not too small as to render the openness negligible and not too
large as to distract the trial participants from their proper
functions, who shall then be totally free to report what they have
observed during the proceedings.[26] (underscoring supplied)
Even before considering what is a reasonable number of the
public who may observe the proceedings, the peculiarity of the
subject criminal cases is that the proceedings already
necessarily entail the presence of hundreds of families. It
cannot be gainsaid that the families of the 57 victims and of the
197 accused have as much interest, beyond mere curiosity, to
attend or monitor the proceedings as those of the impleaded
parties or trial participants. It bears noting at this juncture that
the prosecution and the defense have listed more than 200
witnesses each.
The impossibility of holding such judicial proceedings in a
courtroom that will accommodate all the interested parties,
whether private complainants or accused, is unfortunate
enough. What more if the right itself commands that a
reasonable number of the general public be allowed to witness
the proceeding as it takes place inside the
courtroom. Technology tends to provide the only solution to
break the inherent limitations of the courtroom, to satisfy the
imperative of a transparent, open and public trial.
In so allowing pro hac vice the live broadcasting by radio and
television of the Maguindanao Massacre cases, the Court lays
down the following guidelines toward addressing the concerns
mentioned in Aquino and Estrada:
(a) An audio-visual recording of the Maguindanao massacre
cases may be made both for documentary purposes and for
transmittal to live radio and television broadcasting.
(b) Media entities must file with the trial court a letter of
application, manifesting that they intend to broadcast the audio-
visual recording of the proceedings and that they have the
necessary technological equipment and technical plan to carry
out the same, with an undertaking that they will faithfully comply
with the guidelines and regulations and cover the entire
remaining proceedings until promulgation of judgment.
No selective or partial coverage shall be allowed. No media
entity shall be allowed to broadcast the proceedings without an
application duly approved by the trial court.
(c) A single fixed compact camera shall be installed
inconspicuously inside the courtroom to provide a single wide-
angle full-view of the sala of the trial court. No panning and
zooming shall be allowed to avoid unduly highlighting or
downplaying incidents in the proceedings. The camera and the
necessary equipment shall be operated and controlled only by
a duly designated official or employee of the Supreme
Court. The camera equipment should not produce or beam any
distracting sound or light rays. Signal lights or signs showing
the equipment is operating should not be visible.A limited
number of microphones and the least installation of wiring, if not
wireless technology, must be unobtrusively located in places
indicated by the trial court.
The Public Information Office and the Office of the Court
Administrator shall coordinate and assist the trial court on the
physical set-up of the camera and equipment.
(d) The transmittal of the audio-visual recording from inside the
courtroom to the media entities shall be conducted in such a
way that the least physical disturbance shall be ensured in
keeping with the dignity and solemnity of the proceedings and
the exclusivity of the access to the media entities.
62
The hardware for establishing an interconnection or link with
the camera equipment monitoring the proceedings shall be for
the account of the media entities, which should employ
technology that can (i) avoid the cumbersome snaking cables
inside the courtroom, (ii) minimize the unnecessary ingress or
egress of technicians, and (iii) preclude undue commotion in
case of technical glitches.
If the premises outside the courtroom lack space for the set-up
of the media entities facilities, the media entities shall access
the audio-visual recording either via wireless technology
accessible even from outside the court premises or from one
common web broadcasting platform from which streaming can
be accessed or derived to feed the images and sounds.
At all times, exclusive access by the media entities to the real-
time audio-visual recording should be protected or encrypted.
(e) The broadcasting of the proceedings for a particular day
must be continuous and in its entirety, excepting such portions
thereof where Sec. 21 of Rule 119 of the Rules of
Court[27] applies, and where the trial court excludes, upon
motion, prospective witnesses from the courtroom, in instances
where, inter alia, there are unresolved identification issues or
there are issues which involve the security of the witnesses and
the integrity of their testimony (e.g., the dovetailing of
corroborative testimonies is material, minority of the witness).
The trial court may, with the consent of the parties, order only
the pixelization of the image of the witness or mute the audio
output, or both.
(f) To provide a faithful and complete broadcast of the
proceedings, no commercial break or any other gap shall be
allowed until the days proceedings are adjourned, except
during the period of recess called by the trial court and during
portions of the proceedings wherein the public is ordered
excluded.
(g) To avoid overriding or superimposing the audio output from
the on-going proceedings, the proceedings shall be broadcast
without any voice-overs, except brief annotations of scenes
depicted therein as may be necessary to explain them at the
start or at the end of the scene. Any commentary shall observe
the sub judice rule and be subject to the contempt power of the
court;
(h) No repeat airing of the audio-visual recording shall be
allowed until after the finality of judgment, except brief footages
and still images derived from or cartographic sketches of
scenes based on the recording, only for news purposes, which
shall likewise observe the sub judice rule and be subject to the
contempt power of the court;
(i) The original audio-recording shall be deposited in
the National Museum and the Records Management and
Archives Office for preservation and exhibition in accordance
with law.
(j) The audio-visual recording of the proceedings shall be made
under the supervision and control of the trial court which may
issue supplementary directives, as the exigency requires,
including the suspension or revocation of the grant of
application by the media entities.

(k) The Court shall create a special committee which shall

forthwith study, design and recommend appropriate
arrangements, implementing regulations, and administrative
matters referred to it by the Court concerning the live broadcast
of the proceedings pro hac vice, in accordance with the above-
outlined guidelines. The Special Committee shall also report
and recommend on the feasibility, availability and affordability
of the latest technology that would meet the herein
requirements. It may conduct consultations with resource
persons and experts in the field of information and
communication technology.

(l) All other present directives in the conduct of the proceedings

of the trial court (i.e., prohibition on recording devices such as
still cameras, tape recorders; and allowable number of media
practitioners inside the courtroom) shall be observed in addition
to these guidelines.

Indeed, the Court cannot gloss over what advances technology

has to offer in distilling the abstract discussion of key
constitutional precepts into the workable
context. Technology per se has always been neutral. It is the
use and regulation thereof that need fine-tuning. Law and
technology can work to the advantage and furtherance of the
various rights herein involved, within the contours of defined
guidelines.

WHEREFORE, in light of the foregoing disquisition, the

Court PARTIALLY GRANTS PRO HAC VICE the request for
live broadcast by television and radio of the trial court
proceedings of the Maguindanao Massacre cases, subject to
the guidelines herein outlined.

SO ORDERED.

63