Thursday, May 28, 2009

Negligence in issuing warrant of arrest

In the case of AUREO G. BAYACA vs. JUDGE TRANQUILINO V. RAMOS, A.M. No. MTJ-07-1676, January 29, 2009, the Philippine Supreme Court, inter alia, held that respondent Judge was inexcusably negligent when he issued a Warrant of Arrest and Commitment to Final Sentence despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment.

The Court stated that in the performance of his duties, respondent Judge failed to observe that diligence, prudence and circumspection which the law requires in the rendition of any public service. If only respondent Judge had exercised the requisite thoroughness and caution, he would have noted not only the modification of the monetary awards by the appellate court, but also the deletion of the penalty of imprisonment upon which the Warrant of Arrest and Commitment to Final Sentence that he signed was based, it added.

The complainant was the accused in a criminal case for arson through reckless imprudence. The case was raffled to the sala of the respondent Judge. After trial, respondent Judge found complainant guilty as charged and imposed upon him the penalty of imprisonment of four (4) months of arresto mayor as minimum and four (4) years and two (2) months of prision correccional as maximum with all the accessory penalties imposed by law and to pay costs and actual damages in the amount of P100,000.00.

Aggrieved, complainant appealed the case to the Regional Trial Court (RTC). The RTC affirmed with modification the decision of the MCTC. It merely imposed a fine of Seventy-five pesos (Php75.00). It deleted the award of P100,000.00 as actual damages. Instead, the accused was directed to pay the offended parties the total sum of P25,000.00 as temperate damages.

Despite the deletion of the penalty of imprisonment in the RTC decision, respondent Judge issued a Warrant of Arrest and Commitment on Final Sentence which led to complainant’s incarceration.

Hence, the complainant filed an administrative case against the respondent judge, alleging that the latter acted without legal basis in ordering his detention, thus displaying bias, manifest partiality, incompetence in office, gross ignorance of the law, gross misconduct, dishonesty and grave abuse of authority and discretion.

In his counter-affidavit, respondent Judge clarified that his issuance of the warrant of arrest against herein complainant was a mistake done in good faith. He added that for almost sixteen (16) years it was the practice in his sala that before acting on a motion it passed through his Clerk of Court who studied the records to determine whether or not to grant it. If it would be granted, the Clerk of Court would then request the stenographer to type the order and thereafter, he would affix his initial for respondent Judge’s signature. This was the procedure that they followed in the instant case which was unfortunately the only instance that they committed a mistake. While he apologized to complainant and his parents, the respondent maintained that the matter was merely a case of simple negligence.

The respondent judge narrated that the civil case for damages previously filed against him by complainant had been dismissed by virtue of a compromise agreement. He stated the criminal complaint for unlawful arrest and serious illegal detention pending before the Office of the Provincial Prosecutor was also dismissed after complainant filed an Affidavit of Desistance. He claimed that the administrative case was filed mainly to harass him when complainant discovered that he had filed for optional retirement as MCTC Judge. He informed the Court that he had been suffering from severe asthma and arthritis and had been bedridden and very sickly. He asked for assistance in facilitating the approval of his retirement benefits.

In its report, the Office of the Court Administrator (OCA) found respondent Judge guilty of Negligence and Conduct Prejudicial to the Best Interest of Service. The report stated that in the discharge of the functions of his office, a judge must strive to act in a manner that puts him and his conduct above reproach and beyond suspicion. He must act with extreme care for his office indeed is laden with a heavy burden of responsibility. Hence, a judge was required to pore over all documents on which he affixes his signature notwithstanding his heavy caseload.

The OCA report stated that respondent Judge made a partial payment of P250,000.00 to the complainant with a promise to pay another P500,000.00 to be paid within two months from the date when the Acknowledgment Receipt of Amicable Settlement was executed. The act of respondent Judge in giving money in exchange for the withdrawal of civil, criminal and administrative case filed against him was highly improper, the OCA said. It was a well-settled rule that administrative case could not be the subject of amicable settlement. The filing of administrative complaint could not depend upon the whims and caprices of complainant and it cannot be rendered naught by the private concessions of the parties. Hence, the withdrawal of administrative complaint would not prevent the court from deciding the case since complainants were, in a real sense, only witnesses therein.

For legal research purposes of the visitors of this blog, in the abovecited case the Supreme Court made the following doctrinal pronouncements, which were basically a reiteration of applicable Philippine jurisprudence on judicial ethics. Thus:

X x x

We have repeatedly ruled in a number of cases that mere desistance or recantation by the complainant does not necessarily result in the dismissal of an administrative complaint against any member of the bench. The withdrawal of complaints cannot divest the Court of its jurisdiction nor strip it of its power to determine the veracity of the charges made and to discipline, such as the results of its investigation may warrant, an erring respondent. Administrative actions cannot depend on the will or pleasure of the complainant who may, for reasons of his own, condone what may be detestable. Neither can the Court be bound by the unilateral act of the complainant in a matter relating to its disciplinary power. The Court’s interest in the affairs of the judiciary is of paramount concern. For sure, public interest is at stake in the conduct and actuations of officials and employees of the judiciary, inasmuch as the various programs and efforts of this Court in improving the delivery of justice to the people should not be frustrated and put to naught by private arrangements between the parties as in the instant case.

Respondent Judge should not be allowed to capitalize on the Acknowledgement Receipt dated December 3, 2006 showing that complainant and his spouse had already agreed to amicably settle the cases they previously filed against him. Apparently, respondent Judge made a partial payment of P250,000.00 to the complainant with a promise to pay another P500,000.00 within two (2) months from the date when the said Acknowledgment Receipt was executed. This deplorable act of respondent Judge in giving money in exchange for the withdrawal of the cases filed against him by the complainant cannot be countenanced, being considered by law as an obstruction of justice.

X x x.

We hold that respondent Judge was inexcusably negligent when he issued a Warrant of Arrest and Commitment to Final Sentence despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment. In the performance of his duties, respondent Judge failed to observe that diligence, prudence and circumspection which the law requires in the rendition of any public service. If only respondent Judge had exercised the requisite thoroughness and caution, he would have noted not only the modification of the monetary awards by the appellate court, but also the deletion of the penalty of imprisonment upon which the Warrant of Arrest and Commitment to Final Sentence that he signed was based.

Respondent Judge cannot pass on the blame to his Clerk of Court and/or Stenographer. A judge cannot take refuge behind the inefficiency or mismanagement of his very own court personnel. Certainly, a judge is responsible not only for the dispensation of justice but also for managing his court efficiently to ensure the prompt delivery of court services. In the discharge of the functions of his office, respondent Judge must strive to act in a manner that puts him and his conduct above reproach and beyond suspicion. He must act with extreme care for his office indeed is laden with a heavy burden of responsibility. Surely, a judge is enjoined to pore over all documents whereon he is required to affix his signature and give his official imprimatur. The negligence of respondent Judge in this case simply cannot be countenanced.

X x x.

Membership in the judiciary circumscribes one’s personal conduct and imposes upon him certain restrictions, the faithful observance of which is the price one has to pay for holding such a distinguished position. Accordingly, a magistrate of the law must comport himself in a manner that his conduct must be free of a whiff of impropriety, not only with respect to the performance of his official duties, but also to his behavior outside his sala and as a private individual. His conduct must be able to withstand the most searching public scrutiny, for the ethical principles and sense of propriety of a judge are essential to the preservation of the people’s faith in the judicial system lest public confidence in the judiciary would be eroded by the incompetent, irresponsible and negligent conduct of judges.

To recapitulate, we find respondent Judge’s act of issuing an order for the arrest of herein complainant, despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment, an act of inexcusable negligence and conduct which is prejudicial to the best interest of the service.

X x x.

Oppressive law

I find the Trust Receipts Law (P.D. No. 115), one of the obnoxious legacies of the late dictator Pres. Ferdinand Marcos to the Filipino people, to be cruel, oppressive, unreasonable, and unconstitutional for being violative of the due process clause and the equal protection clause of the 1987 Philippine Constitution.

I believe that, unless there is a clear showing of criminal fraud or deceit, any violation of the Trust Receipt Law should not be treated as a crime and that the pecuniary claim of the banks under the trust receipt agreement should be treated merely as an ordinary civil obligation of the defaulting customer. The true spirit of a trust receipt agreement is one of a secured loan obligation. The financial liability of the customer thereunder should be treated as purely civil in character.

The banks are indeed very happy with the law, for it protects their multi-billion treasuries. They will collectively use all their financial and political resources to vehemently oppose and defeat any attempt to repeal the law. Fortunately for the banks, as the Philippine jurisprudence now stands, the law is fair, just, reasonable, and constitutional.

The truth of the matter is that the banks have abused and continue to abuse the law to harass their customers, thus, making our trial courts as their obedient de facto collection agencies.

The very recent case of METROPOLITAN BANK & TRUST COMPANY vs. HON. SECRETARY OF JUSTICE RAUL M. GONZALES, OLIVER T. YAO and DIANA T. YAO, G.R. No. 180165, April 7, 2009 was one such case. It involved the case of estafa under Article 315, paragraph 1(b) of the Revised Penal Code, in relation to Presidential Decree No. 115. (Trust Receipts Law).

In this case, the investigating prosecutor indicted the private respondents for the crime charged by the bank. They subsequently appealed their indictment to the Secretary of Justice, who ruled that there was no probable cause to prosecute private respondents. He declared that the legitimate transactional relationship between the parties being merely a contract of loan, violations of the terms thereunder were not covered by Presidential Decree No. 115.

Acting on the directive of the Secretary of Justice, the City Prosecutor moved for the withdrawal of the Informations. The Regional Trial Court (RTC) granted the same. The bank elevated the matter to the Court of Appeals (CA), which dismissed its petition after finding that the Secretary of Justice committed no grave abuse of discretion in ruling against the existence of probable cause to prosecute private respondents.

The CA recognized the authority of the Secretary of Justice to control and supervise the prosecutors, which included the power to reverse or modify their decisions without committing grave abuse of discretion. Unfazed by the turn of events, petitioner went up to the Supreme Court, urging it to reverse the Court of Appeals and to direct the filing of the proper criminal Informations against private respondents.

The Supreme Court found the petition to be meritorious. It concluded that there was probable cause to warrant the prosecution of private respondents for estafa. It stressed that “probable cause did not require an inquiry into whether there is sufficient evidence to procure a conviction”.

The Court held that the offense punished under Presidential Decree No. 115 is in the nature of malum prohibitum. A mere failure to deliver the proceeds of the sale or the goods, if not sold, constituted a criminal offense that caused prejudice not only to another, but more to the public interest.

The Court rejected the allegation of private respondents that they did not give much significance to the documents that they had signed. According to the Court, considering the enormous value of the transaction involved, it was highly improbable to mistake trust receipt documents for a contract of loan when the heading thereon printed in bold and legible letters reads: “Trust Receipts.” Although it said that it was “not prejudging the case on the merits”, the Court stated that “by merely glancing at the documents submitted by petitioner entitled Trust Receipts and the arguments advanced by private respondents, it was convinced that there was probable cause to file the case and to hold them for trial.”

I wish to digest the doctrinal pronouncements of the Court in the above-cited, for legal research purposes of the visitors of this blog. Thus:

X x x .

Probable cause has been defined as the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded on such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.

The term does not mean “actual or positive cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.

To determine the existence of probable cause, there is need to conduct preliminary investigation. A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case. Its purpose is to determine whether (a) a crime has been committed; and (b) whether there is a probable cause to believe that the accused is guilty thereof. It is a means of discovering which person or persons may be reasonably charged with a crime.

The conduct of preliminary investigation is executive in nature. The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutor’s function unless there is a showing of grave abuse of discretion or manifest error in his findings. Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack or excess of jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by reason of passion or personal hostility. It must have been so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.

In the present case, the abuse of discretion is patent in the act of the Secretary of Justice holding that the contractual relationship forged by the parties was a simple loan, for in so doing, the Secretary of Justice assumed the function of the trial judge of calibrating the evidence on record, done only after a full-blown trial on the merits. The fact of existence or non-existence of a trust receipt transaction is evidentiary in nature, the veracity of which can best be passed upon after trial on the merits, for it is virtually impossible to ascertain the real nature of the transaction involved based solely on the self-serving allegations contained in the opposing parties’ pleadings. Clearly, the Secretary of Justice is not in a competent position to pass judgment on substantive matters. The bases of a party’s accusation and defenses are better ventilated at the trial proper than at the preliminary investigation.

We need not overemphasize that in a preliminary investigation, the public prosecutor merely determines whether there is probable cause or sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial. It does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. The complainant need not present at this stage proof beyond reasonable doubt. A preliminary investigation does not require a full and exhaustive presentation of the parties’ evidence. Precisely, there is a trial to allow the reception of evidence for both parties to substantiate their respective claims.

Having said the foregoing, this Court now proceeds to determine whether probable cause exists for holding private respondents liable for estafa in relation to Presidential Decree No. 115.

Trust receipt transactions are governed by the provisions of Presidential Decree No. 115 which defines such a transaction as follows:

Section 4. What constitutes a trust receipt transaction. – A trust receipt transaction, within the meaning of this Decree, is any transaction by and between a person referred to in this Decree as the entruster, and another person referred to in this Decree as the entrustee, whereby the entruster, who owns or holds absolute title or security interests over certain specified goods, documents or instruments, releases the same to the possession of the entrustee upon the latter’s execution and delivery to the entruster of a signed document called a “trust receipt” wherein the entrustee binds himself to hold the designated goods, documents or instruments in trust for the entruster and to sell or otherwise dispose of the goods, documents or instruments with the obligation to turn over to the entruster the proceeds thereof to the extent of the amount owing to the entruster or as appears in the trust receipt or the goods, documents or instruments themselves if they are unsold or not otherwise disposed of, in accordance with the terms and conditions specified in the trust receipt, or for other purposes substantially equivalent to any one of the following:

1. In the case of goods or documents, (a) to sell the goods or procure their sale; or (b) to manufacture or process the goods with the purpose of ultimate sale: Provided, That, in the case of goods delivered under trust receipt for the purpose of manufacturing or processing before its ultimate sale, the entruster shall retain its title over the goods whether in its original or processed form until the entrustee has complied fully with his obligation under the trust receipt; or (c) to load, unload, ship or transship or otherwise deal with them in a manner preliminary or necessary to their sale; or

2. In the case of instruments, a) to sell or procure their sale or exchange; or b) to deliver them to a principal; or c) to effect the consummation of some transactions involving delivery to a depository or register; or d) to effect their presentation, collection or renewal.

The sale of goods, documents or instruments by a person in the business of selling goods, documents or instruments for profit who, at the outset of the transaction, has, as against the buyer, general property rights in such goods, documents or instruments, or who sells the same to the buyer on credit, retaining title or other interest as security for the payment of the purchase price, does not constitute a trust receipt transaction and is outside the purview and coverage of this Decree.

An entrustee is one having or taking possession of goods, documents or instruments under a trust receipt transaction, and any successor in interest of such person for the purpose of payment specified in the trust receipt agreement. The entrustee is obliged to (1) hold the goods, documents or instruments in trust for the entruster and shall dispose of them strictly in accordance with the terms and conditions of the trust receipt; (2) receive the proceeds in trust for the entruster and turn over the same to the entruster to the extent of the amount owed to the entruster or as appears on the trust receipt; (3) insure the goods for their total value against loss from fire, theft, pilferage or other casualties; (4) keep said goods or the proceeds therefrom whether in money or whatever form, separate and capable of identification as property of the entruster; (5) return the goods, documents or instruments in the event of non-sale or upon demand of the entruster; and (6) observe all other terms and conditions of the trust receipt not contrary to the provisions of the decree.

The entruster shall be entitled to the proceeds from the sale of the goods, documents or instruments released under a trust receipt to the entrustee to the extent of the amount owed to the entruster or as appears in the trust receipt; or to the return of the goods, documents or instruments in case of non-sale; and to the enforcement of all other rights conferred on him in the trust receipt, provided these are not contrary to the provisions of the document. A violation of any of these undertakings constitutes estafa defined under Article 315(1)(b) of the Revised Renal Code, as provided by Section 13 of Presidential Decree No. 115 viz:

Section 13. Penalty Clause. The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Article Three hundred and fifteen, paragraph one (b) of Act Numbered Three thousand eight hundred and fifteen, as amended, otherwise known as the Revised Penal Code. If the violation or offense is committed by a corporation, partnership, association or other juridical entities, the penalty provided for in this Decree shall be imposed upon the directors, officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense.

Apropos thereto, Article 315(1)(b) of the Revised Renal Code punishes estafa committed as follows:

ARTICLE 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor to reclusion temporal, as the case may be.

2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;

3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and

4th. By arresto mayor in its medium and maximum periods, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means; x x x.

As found in the Complaint-Affidavit of petitioner, private respondents were charged with failing to account for or turn over to petitioner the merchandise or goods covered by the trust receipts or the proceeds of the sale thereof in payment of their obligations thereunder. The following pieces of evidence adduced from the affidavits and documents submitted before the City Prosecutor are sufficient to establish the existence of probable cause, to wit:

First, the trust receipts bearing the genuine signatures of private respondents; second, the demand letter of petitioner addressed to respondents; and third, the initial admission by private respondents of the receipt of the imported goods from petitioner.

Prescinding from the foregoing, we conclude that there is ample evidence on record to warrant a finding that there is a probable cause to warrant the prosecution of private respondents for estafa. It must be once again stressed that probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged.

That private respondents did not sell the goods under the trust receipt but allowed it to be used by their sister company is of no moment. The offense punished under Presidential Decree No. 115 is in the nature of malum prohibitum. A mere failure to deliver the proceeds of the sale or the goods, if not sold, constitutes a criminal offense that causes prejudice not only to another, but more to the public interest. Even more incredible is the contention of private respondents that they did not give much significance to the documents they signed, considering the enormous value of the transaction involved. Thus, it is highly improbable to mistake trust receipt documents for a contract of loan when the heading thereon printed in bold and legible letters reads: “Trust Receipts.” We are not prejudging this case on the merits. However, by merely glancing at the documents submitted by petitioner entitled “Trust Receipts” and the arguments advanced by private respondents, we are convinced that there is probable cause to file the case and to hold them for trial.

All told, the evidentiary measure for the propriety of filing criminal charges has been reduced and liberalized to a mere probable cause. As implied by the words themselves, “probable cause” is concerned with probability, not absolute or moral certainty.

x x x.

Wednesday, May 27, 2009

Influence peddling by judge

The case of SYLVIA SANTOS vs. JUDGE EVELYN S. ARCAYA- CHUA, A.M. No. RTJ-07-2093 (Formerly OCA IPI No. 05-2312-RTJ), February 13, 2009, involved a trial judge in the premier financial city of the Philippines, i.e., Makati City.

The complainant Sylvia Santos, an aunt of the respondent trial judge, accused the respondent Judge Evelyn S. Arcaya-Chua, of the Regional Trial Court (RTC) Branch 144, Makati City, of serious misconduct and dishonesty.

After trial, the Philippine Supreme Court found the judge GUILTY of gross misconduct and SUSPENDED her from office for six (6) months without salary and other benefits, with the warning that the commission of the same or a similar act in the future shall merit a more severe penalty.

As was usual among administrative cases against judges and lawyers, this case involved money and influence peddling.

Let me digest the case for legal-ethics research purposes.

Complainant, an aunt of respondent's husband, alleges: In the first week of September 2002, she asked respondent's help, who was then the Presiding Judge of the Metropolitan Trial Court (MeTC), Branch 63 of Makati City, regarding the cases of complainant's friend, Emerita Muñoz, pending before the Supreme Court. Respondent, a former employee of the Court, said that she could help as she had connections with some Justices of the Court; she just needed P100, 000.00 which she would give to an employee of the Court for the speedy resolution of said cases. In the first week of October 2002, complainant gave respondent P100, 000.00 in the privacy of the latter's chamber. When complainant followed up the cases in February 2003, respondent told her that there was a problem, as the other party was offering P10 million to the Justices. Complainant asked respondent to return the P100, 000.00; however respondent could no longer be contacted.

In her Comment dated August 19, 2005, respondent denied the charges against her. She averred that when she became a judge, complainant asked a lot of favors from her, and knowing that she worked as a Court Attorney of the Supreme Court, complainant asked her to talk to a certain Mario Tolosa of the Third Division, to whom complainant had given P50, 000.00 for a favorable resolution of the Munoz cases. Respondent declined; thereafter complainant started spreading malicious imputations against her. On April 23, 2005, complainant begged respondent to talk to anyone in the Third Division to recover the money she gave Tolosa. Respondent again refused; complainant then repeatedly tried to talk to her until April 25, 2005 when complainant threatened to file a case against respondent with the Supreme Court. Complainant sent two demand letters addressed to respondent's court asking for the return of the P100, 000.00 complainant allegedly gave her. Complainant also told respondent's husband, outside respondent's house, that she was corrupt, as she asked for money in order to settle cases in court. Respondent filed cases of Grave Oral Defamation, Intriguing Against Honor and Unjust Vexation against complainant, while complainant filed an estafa case against her.

The investigating Court of Appeals associate justice who was tasked by the Supreme Court to hear the evidence of the parties conduct found that: complainant was able to present substantial evidence in support of her complaint against respondent; while respondent denied that she asked for and received from complainant P100,000.00 for the facilitation of a favorable decision on Muñoz's cases, respondent, however, admitted meeting complainant in her office in September 2002, claiming only a different reason for such meeting; that is, complainant was there to console her for the protests against respondent at the time; respondent claims to have incurred complainant's ire for declining complainant's request for favors in June 2004; however, it was respondent who asserted that the complainant asked her to talk to Mario Tolosa of the Supreme Court; complainant asserted that she had not heard of Tolosa before; however it was respondent's comment and her husband's affidavit which stated that complainant informed them on April 23, 2005 that Tolosa had gone on absence without leave; it was respondent, as a former employee of the Supreme Court who stood to know who Tolosa was; there was also a strong reason to believe that respondent knew and associated with Muñoz prior to the parties' falling out, since the affidavit of Robert Chua (Robert), respondent's husband, stated that Muñoz was introduced to them by complainant in September 2003, and that they went to Tagaytay with her in 2004; Robert claimed, however, that the topic of case-fixing never cropped up; although respondent filed a complaint for grave oral defamation, intriguing against honor and unjust vexation on June 20, 2005 before complainant filed the instant administrative complaint, it cannot be denied, however, that respondent at the time had already been served complainant's demand letters dated April 28, 2005 and May 27, 2005; respondent's failure, both as a judge and as a lawyer, to reply to complainant's first demand letter, was unusual; considering complainant's advanced age and illnesses, respondent's claim -- that complainant's motive for filing the administrative case was respondent’s refusal to give in to complainant's request to intercede in the cases of the latter’s friend -- was too paltry an explanation for complainant's willingness to expend the time, money, effort and aggravation entailed by the administrative case as well as the criminal case filed by and against her; complainant's compliance with the Court's Resolution, which directed her to show cause why she should not be held in contempt for filing an unfounded complaint against respondent, stated that the allegations in her complaint were true and based on personal knowledge, and it was only because of respondent and their family's pleas, as well as for humane reasons, that she gave up her complaint against respondent.

In deciding the complaint, the Supreme Court held that It was settled that in administrative proceedings, the quantum of proof required to establish malfeasance was not proof beyond reasonable doubt, but substantial evidence, i.e., that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In this case, the investigating justice found that substantial evidence existed to support the allegations against respondent.

Try as she might to show the implausibility of complainant's claims, respondent could not deny that she and complainant met at her office sometime in September 2002; that she and her husband knew Muñoz and associated with her on several occasions, and that it was respondent, being a former employee of the Supreme Court, who stood to know who Tolosa was. But most telling of all the circumstances pointing to respondent's guilt is the unwavering stance of complainant that respondent did solicit and receive P100, 000.00 from her in order to facilitate a favorable ruling in Muñoz's cases.

As a rule, the findings of investigating magistrates on the credibility of witnesses are generally given by this Court great weight by reason of their unmatched opportunity to see the deportment of the witnesses as they testified. In the case at bar, as the observations and findings of the investigating justice were well supported by the records, the Court found no reason to depart from such rule.

As defined, misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, willful in character, improper or wrong behavior; while “gross,” has been defined as “out of all measure; beyond allowance; flagrant; shameful; such conduct as is not to be excused.

Under Sections 8 and 11 of Rule 140, a judge found guilty of gross misconduct may be punished with any of the following sanctions: (1) dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations, provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; (2) suspension from office without salary and other benefits for more than three but not exceeding six months; or (3) a fine of more than P20,000.00 but not exceeding P40,000.00.

This was respondent's first administrative offense. In view of such circumstance and the sanctions provided under Rule 140, the Court found suspension from office without salary and other benefits for six months to be proper in this case.

Parenthetically, the Court emphasized as a final word that the office of a judge was sacred and imbued with public interest. The need to maintain the public’s confidence in the judiciary could not be made to depend solely on the whims and caprices of complainants. Thus, withdrawal of a complaint or desistance from a complaint would not deprive the Court of its power under the Constitution to ferret out the truth and discipline its members accordingly.

Lawyer cheats clients

In the case of MARIA ANGALAN, et. al. vs. ATTY. LEONIDO C. DELANTE, En Banc, A.C. No. 7181 (Per Curiam), February 6, 2009, the Philippine Supreme Court disbarred the respondent Atty. Leonido C. Delante for violating Canons 16 and 17 of the Code of Professional Responsibility, which provides that lawyers shall be mindful of the trust and confidence reposed in them and that that lawyers shall hold in trust all properties of their clients that may come into their possession.

In this case, the complainants alleged that they were illiterate and that the Spouses Eustaquio took advantage of them. Complainants engaged the services of respondent in the hope that he would help them recover their property. Instead of protecting the interests of complainants, respondent took advantage of complainants and transferred the title of the property to his name.

The Court stated that a person who took the 8.102-hectare property of his illiterate clients and who is incapable of telling the truth is unfit to be a lawyer.

Let me digest the salient parts thereof, for legal research purposes.

Complainants and respondent presented two different sets of facts. According to complainants, they engaged the services of respondent for the purpose of recovering their property from the Spouses Eustaquio. In violation of the trust and confidence they reposed in him, respondent transferred the title over the property to his name. According to respondent, complainants did not engage his services. His client from New York was the one who bought the property from the Spouses Eustaquio.

The Court was not impressed. Angalan and complainants went to respondent’s office not to seek advice about borrowing money but to engage his services for the purpose of recovering their property. First, after Angalan and complainants went to respondent’s office, respondent filed a complaint with the CFI praying that the Spouses Eustaquio reconvey the property to Angalan and complainants. Second, in the complaint, respondent stated that, “by reason of unwarranted refusal on the part of the defendants to reconvey the property to plaintiffs, the latter have been constrained to engage, and in fact have engaged, the services of counsel.” Third, respondent issued a receipt to complainants stating that he “RECEIVED from Mr. MACARIO CAPUL and FRANCISCA RAFAEL CAPUL the sum of ONE THOUSAND TWO HUNDRED PESOS (P1,200.00) representing full payment of professional services in regard to the recovery of Original Certificate of Title No. P-11499 in the name of Angalan (Samal).” Fourth, in respondent’s letter dated 10 January 1979 and addressed to the barrio captain of Umbay, Samal, Davao del Norte, he stated that he was the lawyer of complainants.

Complainants repurchased the property from the Spouses Eustaquio. First, complainants and the Spouses Eustaquio entered into an amicable settlement stating that complainants would repurchase the property from the Spouses Eustaquio. Second, in his letter to the barrio captain, respondent stated that complainants repurchased the property from the Spouses Eustaquio.

Respondent’s story about the client from New York is unbelievable. Respondent did not give any detail or proof to substantiate his story — the name of the alleged client, an affidavit of the alleged client, the old passport of the alleged client showing immigration stamps, or any form of correspondence between him and the alleged client. Respondent’s “vain attempt to salvage his malicious acts was flimsy to gain belief and acceptance.

In his position paper, respondent alleged that complainants executed a motion to withdraw the complaint for disbarment and an affidavit of desistance. This was immaterial. Section 5, Rule 139-B of the Rules of Court states that, “No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of charges, or failure of the complainant to prosecute the same.”

Respondent violated Canons 16 and 17 of the Code of Professional Responsibility. Canon 16 states that lawyers shall hold in trust all properties of their clients that may come into their possession. Respondent should have held in trust TCT No. T-9926 and returned the property to complainants upon demand. Instead of holding in trust the property of complainants, respondent (1) transferred the title of the property to his name, (2) refused to return the property to complainants, and (3) referred to complainants’ charges as malicious and untruthful.

Violation of Canons 16 and 17 constitutes gross misconduct. Section 27, Rule 138 of the Rules of Court states that a member of the bar may be disbarred or suspended from his office as attorney by the Court for gross misconduct. In Hernandez v. Go, the Court disbarred a lawyer for transferring the titles over the properties of his client to his name without the knowledge of his client. In Hernandez, the Court held that:

Considering the depravity of respondent’s offense, we find the penalty recommended by the IBP too light. It bears reiterating that a lawyer who takes advantage of his client’s financial plight to acquire the latter’s properties for his own benefit is destructive of the confidence of the public in the fidelity, honesty, and integrity of the legal profession. Thus, for violation of Canon 16 and Canon 17 of the Code of Professional Responsibility, which constitutes gross misconduct, and consistent with the need to maintain the high standards of the Bar and thus preserve the faith of the public in the legal profession, respondent deserves the ultimate penalty, that of expulsion from the esteemed brotherhood of lawyers.

Abuse of court procedures

In the case of PLUS BUILDERS, INC., and EDGARDO C. GARCIA vs. ATTY. ANASTACIO E. REVILLA, JR., , En Banc, A.C. No. 7056, February 11, 2009, the respondent lawyer filed a motion for reconsideration of the decision of the Philippine Supreme Court, finding respondent guilty of gross misconduct for committing a willful and intentional falsehood before the court, misusing court procedure and processes to delay the execution of a judgment and collaborating with non-lawyers in the illegal practice of law.

The Court PARTIALLY GRANTED the motion for reconsideration. The decision was MODIFIED in that respondent was SUSPENDED from the practice of law for a period of six (6) months, effective upon receipt of the resolution. The original suspension period was two (2) years.

Let me digest the case below for legal research purposes.

On November 15, 1999, a decision was rendered by the Provincial Adjudicator of Cavite (PARAD) in favor of complainant, Plus Builders, Inc. and against the tenants/farmers Leopoldo de Guzman, et. al., who were the clients of respondent Atty. Anastacio E. Revilla, Jr. The PARAD found that respondent’s clients were mere tenants and not rightful possessors/owners of the subject land. The case was elevated all the way up to the Supreme Court, with this Court sustaining complainant’s rights over the land. Continuing to pursue his clients’ lost cause, respondent was found to have committed intentional falsehood; and misused court processes with the intention to delay the execution of the decision through the filing of several motions, petitions for temporary restraining orders, and the last, an action to quiet title despite the finality of the decision. Furthermore, he allowed non-lawyers to engage in the unauthorized practice of law – holding themselves out as his partners/associates in the law firm.

Respondent maintains that he did not commit the acts complained of. The courses of action he took were not meant to unduly delay the execution of the DARAB Decision dated November 19, 1999, but were based on his serious study, research and experience as a litigation lawyer for more than 20 years and on the facts given to him by his clients in the DARAB case. He believes that the courses of action he took were valid and proper legal theory designed to protect the rights and interests of Leopoldo de Guzman, et. al. He stresses that he was not the original lawyer in this case. The lawyer-client relationship with the former lawyer was terminated because Leopoldo de Guzman, et. al. felt that their former counsel did not explain/argue their position very well, refused to listen to them and, in fact, even castigated them. As the new counsel, respondent candidly relied on what the tenants/farmers told him in the course of his interview. They maintained that they had been in open, adverse, continuous and notorious possession of the land in the concept of an owner for more than 50 years. Thus, the filing of the action to quiet title was resorted to in order to determine the rights of his clients respecting the subject property. He avers that he merely exhausted all possible remedies and defenses to which his clients were entitled under the law, considering that his clients were subjected to harassment and threats of physical harm and summary eviction by the complainant. He posited that he was only being protective of the interest of his clients as a good father would be protective of his own family, and that his services to Leopoldo de Guzman, et. al were almost pro bono.

Finally, he submitted that if he was indeed guilty of violating the rules in the courses of action he took in behalf of his clients, he apologizes and supplicates the Court for kind consideration, pardon and forgiveness. He reiterated that he did not deserve the penalty of two years’ suspension, considering that the complaint failed to show him wanting in character, honesty, and probity; in fact, he had been a member of the bar for more than 20 years, served as former president of the IBP Marinduque Chapter, a legal aide lawyer of IBP Quezon City handling detention prisoners and pro bono cases, and is also a member of the Couples for Christ, and had had strict training in the law school he graduated from and the law offices he worked with. He was the sole breadwinner in the family with a wife who was jobless, four (4) children who were in school, a mother who was bedridden and a sick sister to support. The family’s only source of income was respondent’s private practice of law, a work he had been engaged in for more than twenty-five (25) years.

It is the rule that when a lawyer accepts a case, he is expected to give his full attention, diligence, skill and competence to the case, regardless of its importance and whether he accepts it for a fee or for free. A lawyer’s devotion to his client’s cause not only requires but also entitles him to deploy every honorable means to secure for the client what is justly due him or to present every defense provided by law to enable the latter’s cause to succeed. In this case, respondent may not be wanting in this regard. On the contrary, it is apparent that the respondent’s acts complained of were committed out of his over-zealousness and misguided desire to protect the interests of his clients who were poor and uneducated. We are not unmindful of his dedication and conviction in defending the less fortunate. Taking the cudgels from the former lawyer in this case is rather commendable, but respondent should not forget his first and foremost responsibility as an officer of the court. In support of the cause of their clients, lawyers have the duty to present every remedy or defense within the authority of the law. This obligation, however, is not to be performed at the expense of truth and justice. This is the criterion that must be borne in mind in every exertion a lawyer gives to his case. Under the Code of Professional Responsibility, a lawyer has the duty to assist in the speedy and efficient administration of justice, and is enjoined from unduly delaying a case by impeding execution of a judgment or by misusing court processes.

At any rate, the Court showed compassion to the respondent in the presence of mitigating factors, such as the respondent’s length of service, acknowledgment of his or her infractions and feeling of remorse, family circumstances, humanitarian and equitable considerations, and respondent’s advanced age, among other things, which have varying significance in the Court’s determination of the imposable penalty.

Thus, after a careful consideration of herein respondent’s motion for reconsideration and humble acknowledgment of his misfeasance, the Court was persuaded to extend a degree of leniency towards the respondent by reducing his suspension period from two years to six months.

Solicitations by court workers

In the case of OFFICE OF THE COURT ADMINISTRATOR vs. SHEELA NOBLEZA, etc., En Banc, A.M. No. P-08-2510 (per curiam), April 24, 2009, the Office of the Court Administrator (OCA), charged Rolando H. Hernandez, Executive Assistant I, Legal Office, OCA, for dishonesty through improper solicitations from bonding companies accredited by the Court, and unauthorized use of an improvised letterhead of the Court, in connection with the 5th National Convention on May 5 to 7, 2008 at the Quezon Convention Center, Lucena City. In Administrative Matter No. P-08-2510, the OCA charged Sheela R. Nobleza, Court Stenographer, Metropolitan Trial Court, Branch 23, Manila for the same offense as the solicitations were made in her behalf. After an investigation, the Philippine Supreme Court DISMISSED them from service with forfeiture of all retirement benefits, except accrued leave credits, and with prejudice to reemployment in any branch or instrumentality of the government, including government-owned or controlled corporations.

I wish to digest the resolution of the Court in the above-cited case, for future reference and legal research purposes of lawyers and court personnel visiting this blog.

The functions of the Legal Office, Office of the Court Administrator, where respondent Hernandez worked, included, among others, the monitoring and collection of forfeited surety bonds, and issues certifications to insurance companies engaged in the bonding business. The personnel of the said division where respondent Hernandez was assigned interacted with people transacting business with the said office such as bonding companies and employees of the lower courts.

Both respondents admitted that on different dates and occasions, they personally went together and brought solicitation letters to the offices of bonding companies and actually solicited money. So that the letters would appear to be official and authorized for the said purpose, respondents used improvised letterheads of the Supreme Court and the Metropolitan Trial Court Stenographers Association (MeTCSA), Manila Chapter. Using the improvised solicitation letters, respondents solicited cash from eight (8) bonding companies, ranging from P1, 000.00 to P2, 000.00. Respondents admitted that they actually received the amount solicited.

Respondents contended that soliciting money from any person is allowed so long as the donor has no pending cases before the courts. But the Court reminded the respondents that it had previously issued to OCA Circular No. 4-91 strictly enjoining all personnel of the lower courts under the Administrative supervision of the Office of the Court Administrator from making “any form of solicitation for contributions as it is strictly prohibited by law” and that all those found soliciting and/or receiving contributions, in cash or in kind, “from any person, whether or not a litigant or lawyer, will be dealt with severely.” The Court stated that it prohibited any form of solicitations of gift or other pecuniary or material benefits or receipts of contributions for himself/herself from any person, whether or not a litigant or lawyer, to avoid any suspicion that the major purpose of the donor is to influence the court personnel in performing official duties.

It turned out that respondents did not attend the convention of court stenographers on May 5 to 7, 2008. And when asked what happened to the money they had collected, they replied that they used the money for their children. The Court held that the improper conduct exhibited by respondents, aggravated by the fact that she never returned the money and appropriated it instead to personal use, clearly constituted unacceptable conduct for judicial employees, a form of “dishonestly and gross misconduct” which are grave offenses punishable under Civil Service Rules.

The Court made the following doctrinal pronouncements:

“Soliciting is prohibited under The Code of Conduct for Court Personnel. Section 2, Canon I thereof provides that “[c]ourt personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their official actions;” while Section 2(e), Canon III states that “Court personnel shall not x x x solicit or accept any gift, loan, gratuity, discount, favor, hospitality or service under circumstances from which it could reasonably be inferred that a major purpose of the donor is to influence the court personnel in performing official duties.” Such acts are strictly prohibited to avoid the perception that in exchange for certain favors, court personnel can be influenced to act in favor of a certain party or person. Thus, in Villaros v. Orpiano, the Court emphasized that:

Time and time again, we have stressed that the behavior of all employees and officials involved in the administration of justice, from judges to the most junior clerks, is circumscribed with a heavy responsibility. Their conduct must be guided by strict propriety and decorum at all times in order to merit and maintain the public’s respect for and trust in the judiciary. Needless to say, all court personnel must conduct themselves in a manner exemplifying integrity, honesty and uprightness.

The respondent's act of demanding money from the complainant hardly meets the foregoing standard. Improper solicitation from litigants is a grave offense that carries an equally grave penalty.

Again, in De Leon-Dela Cruz v. Recacho, the following pronouncement was made:

The Court reiterates its policy not to tolerate or condone any conduct, act or omission that falls short of the exacting norms of public office, especially on the part of those expected to preserve the image of the judiciary. Thus, it will not shirk from its responsibility of imposing discipline upon its employees in order not to diminish the people's faith in our justice system.

The Court stressed that improper solicitation carried a “grave penalty”. Under Section 52(A) (11) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service, dismissal is the penalty for improper solicitation at the first offense. Section 58(a) of the same Rule provides that the penalty of dismissal shall carry with it the cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification for reemployment in the government service, unless otherwise provided in the decision.

Saturday, May 23, 2009

Buddhism and the lawyer

As a Buddhist, I wish to share the basic Buddhist tenets that apply to the ethical standards of the law profession.

Siddhata Gotama, the Buddha, taught four noble truths: the truth of suffering; the truth of the cause of suffering; the truth of the cessation of suffering; and the truth of the path leading to the cessation of suffering.

He taught the noble eight-fold path that leads to the cessation of suffering: right understanding; right thought; right speech; right action; right livelihood; right effort; right meditation; and right concentration.

Rebirth means suffering. As long as mind and matter exist, i.e., the psycho-physical conditions and process of life in all sentient beings in all realms of existence, desire exists. Desire is the cause of suffering. Detachment means cessation of suffering.

Greed, hate, and ignorance are grounded on psycho-physical processes of mind and body that produces desire and sensation. Supplemented by envy, jealousy, and conceit, they all collectively constitute the causes of suffering of all sentient beings in all realms of existence, regardless of one’s status, race, creed, religion, gender, and profession. They are the five poisons of the mind.

Suffering is universal. Its causes are universal. And liberation from suffering is possible.

Unless one masters the mind by meditation and concentration – which develop detachment, awareness and equanimity under all circumstances -- he would continue to be stuck in the quagmire of suffering, caused by greed, hate, ignorance, envy, jealousy, and pride.

The four qualities of a pure mind are loving kindness, compassion, sympathetic joy, and equanimity.

Loving kindness is selflessness of the mind and heart. Compassion is mercy for suffering sentient beings in all realms of existence. Sympathetic joy is happiness in the success and good fortunes of others. Equanimity is detached awareness and observation of the workings of mind and body. It masters the causes of suffering by observing, with detachment and non-reaction, the psycho-physical phenomena that manifest in the form of sensations in the body.

When one observes and is aware at all times of the sensations in his body and the thoughts in his mind, he realizes that all phenomena are transient, temporary, and impermanent, and that it is ignorant and stupid of him to crave for and cling to things, thoughts, views, and phenomena that do not last.

Nothing lasts forever. Nothing is eternal. Everything is impermanent.

In daily life, one must practice the Five Precepts: to abstain from killing any being; , to abstain from stealing; to abstain from sexual misconduct; to abstain from wrong speech; and to abstain from all intoxicants. They are the most basic rules of Buddhist morality and ethics.

A practitioner of the Truth trains himself by mastering the morality of his conduct, by practicing meditation and concentration with discipline, and by aiming for ultimate enlightenment that will liberate him from suffering.

It is enlightenment that liberates sentient beings from the cycles of rebirths and suffering.

An enlightened being is guided by the three characteristics of existence and phenomena: impermanence, suffering, and non-self. Realizing their truth, he attains wisdom.

An enlightened sentient being works hard to achieve the ten mental perfections: renunciation; morality; effort; tolerance; truthfulness; strong determination; wisdom; equanimity; selfless love; and generosity.

Atty. Manuel J. Laserna Jr.

Bar reforms; my advocacy moves on.



In Re: Letter of Atty. Manuel J. Laserna Jr. Bar Matter No. 1696
Re: Campaign to Introduce Certain Amendments
To Rule 139-A and the IBP Charter and By-Laws.


THE UNDERSIGNED proponent of structural, policy and program reforms in the Integrated Bar of the Philippines (IBP), in compliance with the Resolution, dated April 14, 2009, a copy of which he received on May 22, 2009, respectfully states:

1. On March 23, 2009, the IBP filed a COMPLIANCE, dated March 20, 2009, stating, inter alia, that it would include the discussion of the reforms subject matter of this matter in the IBP National Convention of Lawyers held on March 26-28, 2009 in Bacolod City; that it intended to sound out the members of the IBP chapters; that radical IBP reforms should start from the grassroots level, not imposed by the Court; and that it agreed with the undersigned that IBP chapter representatives and consultants from law NGOs and law schools be invited to participate in the deliberations of the Supreme Court Committee

on Bar Matters in connection with the proposed reforms and other related matters.

2. Without attributing anything negative, the undersigned proponent was gratified when he received a copy of the said IBP Compliance, after almost two (2) years of failure on its part to comment on the matter.

At least, this matter is now moving.

3. On April 24, 2009, the undersigned received a copy of a MANIFESTATION, dated Apr9l 17, 2009, of the IBP, with a copy of the Agenda of the IBP board meeting held on March 26, 2009 in Bacolod City, stating, inter alia, that this matter was not discussed during the said board meeting for lack of time.

It assured the Court that the matter shall be included in the agenda of the IBP board meeting on May 15, 2009, which was last week.

4. The IBP charter (circa 1970s) and Rule 139-A (circa 1980s) must be radically and genuinely reformed and updated by the Court, in consultation with the IBP and the major local Voluntary Bar Associations in various towns, cities and provinces, such as the Las Pinas City Bar Association, which the undersigned founded in Mach 2001, to be truly relevant to the common lawyers and the basic sectors in the field, in the interest of more effectively uniting and inspiring the legal professionals working in dire straits in the farthest rural areas and in the interest of more courageously promoting the rule of law and the administration of justice in the poverty-stricken and oppression-infected barangays of the country.

5. The IBP must commit itself to beneficial, realistic, and modern structural, policy and program reforms, guided by the wisdom of the Court, if it desires to be truly loyal to its institutional objectives and to be relevant to the chaotic Philippine society and its confused, demoralized and poverty-burdened peasants, laborers, and middle class.

As a respected and noble social institution, the IBP must move with wisdom and speed, under the enlightened shepherding of the Court.

WHEREFORE, it is respectfully prayed that the IBP be ordered to submit an updated Compliance-Report covering the discussions by the IBP board of the reforms proposed in this pending matter and as well as all other relevant IBP reforms it may creatively and comprehensively explore, within 10 days from receipt of such order.
Further, it is respectfully prayed that the IBP be given a deadline of until the end of the third quarter of this year to complete its grassroots-level consultations and to submit its Report-Recommendations to the Court, for immediate study by the Supreme Court Committee on Bar Matters and for subsequent final discussion and approval by the Court En Banc.
Las Pinas City, May 22, 2009.


Proponent of IBP Reforms
Roll No. 33640, 4/27/85
IBP Lifetime Member No. 1907
IBP PPLM Chapter
PTR 9400055, 1/5/07, Las Pinas
MCLE Compliance No. III-0002280


Current Counsel for the
Integrated Bar of the Phils.
IBP Bldg., Dona Julia Vargas Ave.
Ortigas Center, Pasig City
Reg. Rec. No.
Date PO

Atty. Hector Hofilena
and Atty. Brian Keith Hosaka
Past Counsel for the
Integrated Bar of the Phils.
IBP Bldg., Dona Julia Vargas Ave.
Ortigas Center, Pasig City
Reg. Rec. No.
Date PO

Atty. Ma. Cristina Layusa
Bar Confidant
Supreme Court
Reg. Rec. No.
Date PO

Current Chairman and President
Las Pinas City Bar Assn Inc.
74 Dama de Noche St.
Rainbow Village
Talon 5, Las Piñas City

Atty. Antonio Manzano
Past Chairman, Las Piñas City
Bar Assn
And Current Director, IBP PPLM Chapter
E. Pascual St. corner M. Yllana St.
BF Resort Village, Las Piñas City



A copy hereof is served on the IBP counsel and the Bar Confidant by registered mail due to the lack of personnel of undersigned party and the distance of the offices of the aforementioned parties to that of the undersigned party.

Manuel J. Laserna Jr.

Judicial compassion

One of the most embarrassing experiences in recent years of the Institute of Law of Far Eastern University (FEU), my beloved alma matter (high school and law degree), was summarized in the very recent case of “RE: 2003 BAR EXAMINATIONS, ATTY. DANILO DE GUZMAN, Petitioner, En Banc, B.M. No. 1222, April 24, 2009”, wherein the Philippine Supreme Court partially granted the Petition for Judicial Clemency and Compassion and commuted the disbarment of Atty. DANILO G. DE GUZMAN, a former law student leader and honor student of FEU, from the practice of law to seven years suspension from the practice of law, reckoned from February 4, 2004.

Personally, I thank the Court for having judiciously exercised the virtue of compassion on the petitioner in order to save the good future ahead of him as a young, competent, and civic-spirited legal professional.

I wish to digest the decision hereinbelow, for purposes of legal research of the visitors of this blog.

On February 4, 2004, the Court promulgated a Resolution, in B.M. No. 1222, which resolved to DISBAR Atty. DANILO DE GUZMAN from the practice of law.

The subject of the Resolution was the leakage of questions in Mercantile Law during the 2003 Bar Examinations. Petitioner at that time was employed as an assistant lawyer in the law firm of Balgos & Perez, one of whose partners, Marcial Balgos, was the examiner for Mercantile Law during the said bar examinations. The Court had adopted the findings of the Investigating Committee, which identified petitioner as the person who had downloaded the test questions from the computer of Balgos and faxed them to other persons.

The Office of the Bar Confidant (OBC) has favorably recommended the reinstatement of petitioner in the Philippine Bar.

The petitioner was the President of the Student Council of the Institute of Law of the Far Eastern University (FEU), which was conferred on him an Academic Excellence Award upon his graduation in Bachelor of Laws. Upon admission to the bar in April 1999, petitioner immediately entered government service as a Legal Officer assigned at the Sangguniang Bayan of Taguig. Simultaneously, he also rendered free legal services to less fortunate residents of Taguig City who were then in need of legal assistance. In March 2000, petitioner was hired as one of the Associate Lawyers at the Balgos and Perez Law Offices. Despite having entered private practice, he continued to render free legal services to his fellow Taguigeños.

Then in February 2004, by a sudden twist of fate, petitioner’s flourishing career was cut short as he was stripped of his license to practice law for his alleged involvement in the leakage in the 2003 Bar Examinations.

On March 2004, however, petitioner was given a new lease in life when he was taken as a consultant by the City Government of Taguig. Later, he was designated as a member of the Secretariat of the People’s Law Enforcement Board (PLEB). For the next five (5) years, petitioner concentrated mainly on rendering public service.

Petitioner humbly acknowledged the damaging impact of his act which unfortunately, compromised the integrity of the bar examinations. Petitioner averred that he has since learned from his mistakes and has taken the said humbling experience to make him a better person.

As part of his Petition, petitioner submitted to the Court various testimonials and endorsements of various individuals and entities all attesting to his good moral character, e.g. parish priests of Taguig, Rizal, local voluntary bar associations in Taguig, law offices in Taguig, local government executives and the city council of Taguig, homeowners associations in Taguig, civic organizations and other non-governmental organizations in Taguig, and many others.
Petitioner pleaded that he be afforded judicial kindness and compassion in order that his promising future may not be perpetually foreclosed.

In the case of Re: Petition of Al Argosino to Take the Lawyer’s Oath (Bar Matter 712), the Court said in allowing Mr. Argosino to take the lawyer’s oath, the Court recognized that Mr. Argosino was not inherently of bad moral fiber. On the contrary, the various certifications show that he was a devout Catholic with a genuine concern for civic duties and public service. The Court was persuaded that Mr. Argosino had exerted all efforts, to atone for the death of Raul Camaligan. We are prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating.

In the case of Rodolfo M. Bernardo vs. Atty. Ismael F. Mejia (Administrative Case No. 2984), the Court, in deciding whether or not to reinstate Atty. Mejia to the practice of law, took into consideration the applicant’s character and standing prior to the disbarment, the nature and character of the charge/s for which he was disbarred, his conduct subsequent to the disbarment and the time that has elapsed in between the disbarment and the application for reinstatement. Petitioner was barely thirty (30) years old and had only been in the practice of law for five (5) years when he was disbarred from the practice of law.

In the said case, the Court stated that it was of no doubt that petitioner had a promising future ahead of him where it not for the decision of the Court stripping off his license. Petitioner was also of good moral repute, not only before but likewise, after his disbarment, as attested to overwhelmingly by his constituents, colleagues as well as people of known probity in the community and society. Way before the petitioner was even admitted to the bar, he had already manifested his intense desire to render public service as evidenced by his active involvement and participation in several social and civic projects and activities. Likewise, even during and after his disbarment, which could be perceived by some as a debilitating circumstance, petitioner still managed to continue extending his assistance to others in whatever means possible. This only proves petitioner’s strength of character and positive moral fiber.

In the case at bar, the report of the Bar Confidant stated that it was of no question that petitioner’s act in copying the examination questions from Atty. Balgos’ computer without the latter’s knowledge and consent, and which questions later turned out to be the bar examinations questions in Mercantile Law in the 2003 Bar Examinations, is not at all commendable. While we do believe that petitioner sincerely did not intend to cause the damage that his action ensued, still, he must be sanctioned for unduly compromising the integrity of the bar examinations as well as of this Court. However, the Court convinced that petitioner had since reformed and had sincerely reflected on his transgressions. Thus, in view of the circumstances and likewise for humanitarian considerations, the penalty of disbarment may now be commuted to suspension. Considering the fact, however, that petitioner had already been disbarred for more than five (5) years, the same may be considered as proper service of said commuted penalty and thus, may now be allowed to resume practice of law.

In fine, the Court stated that the recommendation of the Office of the Bar Confidant was well-taken in part. It deemed petitioner worthy of clemency to the extent of commuting his penalty to seven (7) years suspension from the practice of law, inclusive of the five (5) years he had already served his disbarment. According to the Court, penalties, such as disbarment, are imposed not to punish but to correct offenders. While the Court was ever mindful of its duty to discipline its erring officers, it also knew how to show compassion when the penalty imposed had already served its purpose. In cases where the Court had deigned to lift or commute the supreme penalty of disbarment imposed on the lawyer, it had taken into account the remorse of the disbarred lawyer and the conduct of his public life during his years outside of the bar.

For example, in Valencia v. Antiniw, the Court held that the long period of respondent's disbarment gave him the chance to purge himself of his misconduct, to show his remorse and repentance, and to demonstrate his willingness and capacity to live up once again to the exacting standards of conduct demanded of every member of the bar and officer of the court. During respondent's disbarment for more than fifteen (15) years to date for his professional infraction, he had been persistent in reiterating his apologies and pleas for reinstatement to the practice of law and unrelenting in his efforts to show that he had regained his worthiness to practice law, by his civic and humanitarian activities and unblemished record as an elected public servant, as attested to by numerous civic and professional organizations, government institutions, public officials and members of the judiciary.

In the case at bar, the Court held that petitioner had sufficiently demonstrated the remorse expected of him considering the gravity of his transgressions. Even more to his favor, petitioner had redirected focus since his disbarment towards public service, particularly with the People’s Law Enforcement Board. The attestations submitted by his peers in the community and other esteemed members of the legal profession, such as retired Court of Appeals Associate Justice Oscar Herrera, Judge Hilario Laqui, Professor Edwin Sandoval and Atty. Loreto Ata, and the ecclesiastical community such as Rev. Fr. Paul Balagtas testified to his positive impact on society at large since the unfortunate events of 2003.

The Court added that petitioner’s subsequent track record in public service affords the Court some hope that if he were to reacquire membership in the Philippine bar, his achievements as a lawyer would redound to the general good and more than mitigate the stain on his record. Compassion to the petitioner was warranted, the Court concluded.

Tuesday, May 19, 2009

Freedom of information and justice

Justice is an impossible dream and an illusion in a regime of secrecy and exclusion and in a culture of hidden agendas and non-disclosure.

I understand that for some years now concerned non-governmental organizations have been heroically but silently pushing for the passage by Congress of a Freedom of Information Act of the Philippines, but their efforts seemed to have been drowned in the deep sea of selfish noise created by the Cha-Cha (charter change) moves of obedient congressmen under the flock of their shepherd Pres. Gloria Arroyo and by the tensions, jealousies, in-fighting, and positioning among our mercenary-type politicians created by the coming 2010 general elections.

All the loud and bombastic speeches and press releases of our corrupt and inutile politicians, legislators and bureaucrats about the fantasies of democracy, freedom, justice and development are useless, empty, hypocritical and delusional, because our Government refuses or neglects to adopt a Freedom of Information Act that will truly give flesh to the purifying principles of transparency, good governance and accountability.

I regret to say this, but, in general, Filipinos do not seem to appreciate the long-term value, significance, relevance and wisdom of a Freedom of Information Act, a sad fact that explains why they have failed to exert enough pressure on their parasitic and lazy legislators and political leaders to push for the passage of such a monumental Act.

Let me digest the salient parts of the Freedom of Information Act of the United States (5 U.S.C. 552).

The spirit of the law is full disclosure and transparency with respect to public information, agency rules, opinions, orders, records, and proceedings. Genuine democracy is founded on the honest concepts of openness, not secrecy, and inclusion, not exclusion.

Under the said law, each agency shall separately state and currently publish in the US Federal Register for the guidance of the public:

1. Descriptions of its central and field organization and the established places at which, the employees from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

2. Statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

3. Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

4. Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

5. Each amendment, revision, or repeal of the foregoing.

Lack of publication gives immunity to citizens. The law provides that except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.

The law further provides that each agency, in accordance with published rules, shall make available for public inspection and copying:

1. Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

2. Those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and

3. Administrative staff manuals and instructions to staff that affect a member of the public; unless the materials are promptly published and copies offered for sale.

To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction. However, in each case the justification for the deletion shall be explained fully in writing.

Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication.

A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if it has been indexed and either made available or published; or the party has actual and timely notice of the terms thereof.

Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests and establishing procedures and guidelines for determining when such fees should be waived or reduced in connection with document search, duplication, and review, when records are requested for commercial use. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies.

It must be stressed that documents shall be furnished without any charge or at a charge reduced below the fees established under clause if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section.

Judicial relief may be had to assert ones right sunder the said law.

On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in the law.

The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding.

In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.

Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.

Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall determine within ten days after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and make a determination with respect to any appeal within twenty days after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination.

The agency may seek a judicial extension of the period within which is shall disclose the documents requested under "unusual circumstances" such as the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.

If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records.

Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request.

The provisions of the law do not apply to matters that are:

1. Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order;

2. Related solely to the internal personnel rules and practices of an agency;

3. Specifically exempted from disclosure by statute, provided that such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types of matter to be withheld;

4. Trade secrets and commercial or financial information obtained from a person and privileged or confidential;

5. Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

6. Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

7. Records or information compiled for law enforcement purposes, but to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings, would deprive a person of a right to a fair trial or an impartial adjudication, could reasonably be expected to constitute an unwarranted invasion of personal privacy, could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or could reasonably be expected to endanger the life or physical safety of any individual;

8. Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

9. Geological and geophysical information and data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.

Whenever a request is made which involves access to records and the investigation or proceeding involves a possible violation of criminal law; and there is reason to believe that the subject of the investigation or proceeding is not aware of its pendency, and disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to disclosure.

Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to disclosure unless the informant's status as an informant has been officially confirmed.

Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation (FBI) pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information, the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

The exclusionary rule is not authority to withhold information from Congress.

What is noteworthy about the law is how consciously it affirms and preserves the oversight powers of the US Congress over the status of compliance by government agencies with the provisions of the law. It provides that on or before March 1 of each calendar year, each agency shall submit a report covering the preceding calendar year to the Speaker of the House of Representatives and President of the Senate for referral to the appropriate committees of the Congress. The report shall include:

1. The number of determinations made by such agency not to comply with requests for records made to such agency and the reasons for each such determination;

2. The number of appeals made by persons, the result of such appeals, and the reason for the action upon each appeal that results in a denial of information;

3. The names and titles or positions of each person responsible for the denial of records requested under this section, and the number of instances of participation for each;

4. The results of each proceeding conducted in connection with the disciplinary action taken against the officer or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken;

5. A copy of every rule made by such agency regarding this section;

6. A copy of the fee schedule and the total amount of fees collected by the agency for making records available under this section; and

7. Such other information as indicates efforts to administer fully this section.

Compliance with the law is administratively monitored and enforced by the US Department of Justice. The Attorney General shall submit an annual report on or before March 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under the law, the exemption involved in each case, the disposition of such case, and the cost, fees, and penalties assessed. Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.

For purposes of the law, the term "agency" includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

Atty. Manuel J. Laserna Jr.

Friday, May 8, 2009

IBP rotation rule

On April 27, 2007, Atty. Ramon Edison C. Batacan, Integrated Bar of the Philippines (IBP) Governor for Eastern Mindanao Region, wrote the Supreme Court, claiming that the election of Atty. Rogelio Vinluan, IBP Governor for Southern Luzon, as Executive Vice-President for the term 2007 to 2009, was null and void on the ground that it violated the “rotation rule.” (IN RE: COMPLIANCE OF IBP CHAPTERS WITH ADM. ORDER NO. 16-2007, LETTER-COMPLIANCE OF ATTY. RAMON EDISON C. BATACAN, En Banc, A.M. No. 07-3-13-SC, February 27, 2008).

As EVP for 2007-2009, Atty. Vinluan would be the next IBP national president for the current term 2009-2011, under the “automatic succession rule” of the IBP By-Laws.

Atty. Batacan asserted that under the “rotation rule,” embodied in Section 47, Article VII of the IBP By-Laws, all IBP regions must take turns in having a representative as EVP, who shall automatically succeed to the IBP Presidency. He posited that since Atty. Pura Angelica Y. Santiago of IBP Southern Luzon was validly elected as EVP on June 13, 2005, said region was disqualified from fielding another candidate for EVP until all the regions have taken turns in holding the position. Considering that Atty. Vinluan comes from IBP Southern Luzon and the other regions had not yet taken their turn in fielding an EVP, Atty. Vinluan's election as EVP on April 25, 2007 was null and void as it contravened the rotation rule, Atty. Batacan added.

Atty. Batacan further argued since he, as Governor of the Eastern Mindanao Region, was the remaining candidate who was qualified and was voted upon to the position, he was rightfully entitled to assume the EVP position. He stated that the said region was denied meaningful participation in the rotation rule when Atty. Leonard De Vera of Eastern Mindanao was removed by the Supreme Court as EVP in 2005.

In its Comment, the IBP National Office through its Deputy General Counsel Atty. Rodolfo G. Urbiztondo, stated that the election of Atty. Vinluan representing Southern Luzon was a violation of the rotation rule since the election of Atty. Santiago of Southern Luzon began a new cycle of rotation and it was only after the rotation was completed that a Governor from the Southern Luzon Region could be elected again.

In his Comment, Atty. Vinluan averred that his election as EVP on April 25, 2007 was valid for the following reasons: Atty. Santiago never took her oath of office; she never assumed the position of EVP; she did not function as EVP at any time; neither did she have the chance to serve out her term as evidenced by the fact that 12 days after her election, Atty. Jose Vicente B. Salazar of the IBP Bicol Region was elected EVP and eventually assumed the IBP Presidency beginning 2005.

Atty. Vinluan further maintains that the election of Atty. Santiago did not trigger the beginning of a new rotation cycle and that it was only with the term of Atty. Salazar of IBP Bicol Region, who was elected after Atty. Santiago, and who eventually served out his term for 2005 to 2007, as EVP that the new cycle began. Atty. Vinluan argued that Atty. Batacan's invocation of the Court's statement in Velez “that the rotation rule had been completed despite the non-assumption by Atty. De Vera to the IBP Presidency” was misplaced since Atty. De Vera had in fact served as EVP for the term 2003 to 2005, while the same cannot be said in the case of Atty. Santiago. IBP Southern Luzon has not been represented yet in the new rotation cycle for EVPs, he added

It will be noted that Section 47, Article VII of the By-Laws of the IBP, as amended, provides:

Sec. 47. National Officers. - The Integrated Bar of the Philippines shall have a President and Executive Vice President to be chosen by the Board of Governors from among nine (9) regional governors, as much as practicable, on a rotation basis. The governors shall be ex officio Vice President for their respective regions. There shall also be a Secretary and Treasurer of the Board of Governors to be appointed by the President with the consent of the Board. (As amended pursuant to Bar Matter 491).

The Executive Vice President shall automatically become President for the next succeeding term. The Presidency shall rotate among the nine Regions. [Emphasis and underscoring supplied]

(See Bar Matter No. 491 dated October 6, 1989, In the Matter of the Inquiry into the 1989 Elections of the Integrated Bar of the Philippines).

Bar Matter No. 491 restored the former system of having the IBP President and Executive Vice-President elected by the Board of Governors from among themselves as well as the right of automatic succession by the Executive Vice-President to the presidency upon the expiration of their two-year term.

The Court introduced the rotation rule in order to give all the regions and chapters their respective turns, each for a term of two years, in having a representative in the top positions, with the aim of restoring the non-political character of the IBP and reducing the temptation of electioneering for the said posts.

The principal question was whether the election on June 13, 2005 of Atty. Santiago of IBP Southern Luzon for the term 2005 to 2007 as EVP constituted one turn under the rotation rule; corollarily, whether Atty. Vinluan who comes from the same IBP region was barred from being elected as EVP for the term 2007 to 2009.

The Court’s answer was in the negative.

On June 13, 2005, Atty. Santiago of Southern Luzon was elected as EVP. On June 20, 2005, seven days after her election, she tendered her resignation, which resignation was approved by the IBP in a Resolution dated June 25, 2005. On the same day, Atty. Salazar of the IBP Bicol Region was elected as EVP, replacing Atty. Santiago.

Based on these circumstances, one can readily see that the election of Atty. Santiago as EVP did not result in any meaningful representation of the Southern Luzon Region which would satisfy the spirit of the rotation rule. The proximity of the dates, from the time that she was elected to the time she tendered her resignation (seven days) and the time the same was accepted by the IBP (five days) shows that there was no sufficient opportunity for her to discharge the duties of an EVP. Atty. Santiago did not take her oath of office.

According to the Court there was no merit to Atty. Batacan’s claim that in view of the removal of Atty. Leonardo de Vera, IBP Eastern Mindanao Region was denied meaningful participation.

In Velez, the Court held that “the rotation rule had been completed despite the non-assumption by Atty. De Vera to the IBP Presidency.” Atty. De Vera's removal from the position of EVP took place on the twenty-third month of his term for 2003 to 2005. Only a month short of completing his term, it is clear that he had effectively exercised the functions of an EVP as representative of the IBP Eastern Mindanao Region.

Moreover, the Court held in Velez that Section 47 of the IBP Rules used the phrase “as much as practicable” to clearly indicate that the rotation rule was not a rigid and inflexible rule as to bar exceptions in compelling and exceptional circumstances.

There being no grave abuse of discretion or gross error in the conduct of said election, the Court upheld the election of Atty. Vinluan as EVP for the term 2007 to 2009.