G.R. No. 180979
NATIONAL POWER CORPORATION vs. TERESITA DIATO-BERNAL,
G.R. No. 180979
December 15, 2010
RESOLUTION
NACHURA, J.:
x x x.
On the substantive issue, the Court finds that the CA and the RTC erred in relying on the unsubstantiated and insufficient findings contained in the commissioners’ report.
In arriving at the P10,000.00 per sq m market value of the expropriated property, the commissioners utilized the following factors:
I. PROPERTY LOCATION
The property subject of the appraisal is situated along Gen. Aguinaldo Highway, Brgy. Anabu, Municipality of Imus, Province of Cavite, consisting of 946 sq. m. more or less, identified as Lot 6075-B with Flat Terrain approximately 5 kms. Distance Southwest of Imus Town proper, about 500 to 600 m. from the entrance gate of Orchard Club and San Miguel Yamamura Corp. from Southeast around 1 km. [t]o 1.5 kms. From EMI (Yasaki), Makro, and Robinsons Department Store.
II. NEGHBORHOOD DESCRIPTION
The neighborhood particularly in the immediate vicinity, is within a mixed residential and commercial area situated in the Southern Section of the Municipality of Imus which is transversed by Gen. Emilio Aguinaldo Highway w[h]ere several residential subdivisions and commercial establishments are located.
Residential houses in the area are one to two storey in height constructed of concrete and wood materials belonging to families in the middle income bracket, while commercial buildings mostly located along Gen. Emilio Aguinaldo Highway.
Some of the important landmarks and commercial establishments in the immediate vicinity are:
Newly constructed Robinsons Department Store
Makro
Caltex Gasoline station and Shell Gasoline station
Goldbomb Const. Corp.
EMI (Yasaki)
Pallas Athena Subd.
and various Commercial and Savings Banks
Community [c]enters such as school, churches, public markets, shopping malls, banks and gasoline stations are easily accessible from the subject property.
Convenience facility such as electricity, telephone service as well as pipe potable water supply system are all available along Gen. Aguinaldo Highway
x x x x
IV. VALUATION OF LAND MARKET DATA
This method of valuation involves the research and investigation of market and sales data of the properties comparable with the property under appraisal.
These other properties are compare[d] with the subject property as to location and physical characteristics. Adjustment of their selling prices [is] then made with respect to the said comparative elements as well as time compensate for the increase or decrease in value.
Based on our investigations and verifications of market sales data and price listings of the neighborhood where the property under appraisal is located indicates land value within the range of P10,000.00 to P15,000.00 per square meter for residential lots while commercial lots along Gen. E. Aguinaldo Highway are range[d] from P10,000.00 to P20,000.00 per square meters (sic).
With this data and making the proper adjustment with respect to the location, area, shape, accessibility, and the highest and best use of the subject property, we estimate the market value of the subject land at P10,000.00 per square meter, as of this date September 10, 1999.[22]
It is evident that the above conclusions are highly speculative and devoid of any actual and reliable basis. First, the market values of the subject property’s neighboring lots were mere estimates and unsupported by any corroborative documents, such as sworn declarations of realtors in the area concerned, tax declarations or zonal valuation from the Bureau of Internal Revenue for the contiguous residential dwellings and commercial establishments. The report also failed to elaborate on how and by how much the community centers and convenience facilities enhanced the value of respondent’s property.[23] Finally, the market sales data and price listings alluded to in the report were not even appended thereto.
As correctly invoked by NAPOCOR, a commissioners’ report of land prices which is not based on any documentary evidence is manifestly hearsay and should be disregarded by the court.[24]
The trial court adopted the flawed findings of the commissioners hook, line, and sinker. It did not even bother to require the submission of the alleged “market sales data” and “price listings.” Further, the RTC overlooked the fact that the recommended just compensation was gauged as of September 10, 1999 or more than two years after the complaint was filed on January 8, 1997. It is settled that just compensation is to be ascertained as of the time of the taking, which usually coincides with the commencement of the expropriation proceedings. Where the institution of the action precedes entry into the property, the just compensation is to be ascertained as of the time of the filing of the complaint.[25] Clearly, the recommended just compensation in the commissioners’ report is unacceptable.
Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the taker’s gain, but the owner’s loss. The word “just” is used to intensify the meaning of the word “compensation” and to convey thereby the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full, and ample.[26] Indeed, the “just”-ness of the compensation can only be attained by using reliable and actual data as bases in fixing the value of the condemned property.
The trial court should have been more circumspect in its evaluation of just compensation due the property owner, considering that eminent domain cases involve the expenditure of public funds.
As to the resolution of the PAC-Cavite advanced by NAPOCOR, which pegged the fair market value of the property at P3,500.00 per sq m, it can only serve as one of the factors in the judicial evaluation of just compensation, along with several other considerations.[27] NAPOCOR cannot demand that the PAC-Cavite resolution be substituted for the report of court-appointed commissioners in consonance with the firm doctrine that the determination of just compensation is a judicial function.[28]
Hence, the legal basis for the determination of just compensation being insufficient, the ruling of the RTC and the affirming Decision and Resolution of the CA ought to be set aside.
WHEREFORE, the petition is GRANTED. The January 14, 2000 Order of the Regional Trial Court, Branch 120, Imus, Cavite, and the September 28, 2007 Decision and the December 17, 2007 Resolution of the Court of Appeals are hereby Set ASIDE. This case is remanded to the trial court for the proper determination of just compensation, in conformity with this Resolution. No costs.
SO ORDERED.
Friday, December 31, 2010
Labor-only contracting prohibited.
G.R. No. 186091
EMMANUEL BABAS, DANILO T. BANAG, ARTURO V. VILLARIN, SR., EDWIN JAVIER, SANDI BERMEO, REX ALLESA, MAXIMO SORIANO, JR., ARSENIO ESTORQUE, and FELIXBERTO ANAJAO vs. LORENZO SHIPPING CORPORATION,
G.R. No. 186091
December 15, 2010
DECISION
NACHURA, J.:
x x x.
Petitioners vigorously insist that they were employees of LSC; and that BMSI is not an independent contractor, but a labor-only contractor. LSC, on the other hand, maintains that BMSI is an independent contractor, with adequate capital and investment. LSC capitalizes on the ratiocination made by the CA.
In declaring BMSI as an independent contractor, the CA, in the challenged Decision, heavily relied on the provisions of the Agreement, wherein BMSI declared that it was an independent contractor, with substantial capital and investment.
De Los Santos v. NLRC[18] instructed us that the character of the business, i.e., whether as labor-only contractor or as job contractor, should
be measured in terms of, and determined by, the criteria set by statute. The parties cannot dictate by the mere expedience of a unilateral declaration in a contract the character of their business.
In San Miguel Corporation v. Vicente B. Semillano, Nelson Mondejas, Jovito Remada, Alilgilan Multi-Purpose Coop (AMPCO), and Merlyn N. Policarpio,[19] this Court explained:
Despite the fact that the service contracts contain stipulations which are earmarks of independent contractorship, they do not make it legally so. The language of a contract is neither determinative nor conclusive of the relationship between the parties. Petitioner SMC and AMPCO cannot dictate, by a declaration in a contract, the character of AMPCO's business, that is, whether as labor-only contractor, or job contractor. AMPCO's character should be measured in terms of, and determined by, the criteria set by statute.
Thus, in distinguishing between prohibited labor-only contracting and permissible job contracting, the totality of the facts and the surrounding circumstances of the case are to be considered.
Labor-only contracting, a prohibited act, is an arrangement where the contractor or subcontractor merely recruits, supplies, or places workers to perform a job, work, or service for a principal. In labor-only contracting, the following elements are present: (a) the contractor or subcontractor does not have substantial capital or investment to actually perform the job, work, or service under its own account and responsibility; and (b) the employees recruited, supplied, or placed by such contractor or subcontractor perform activities which are directly related to the main business of the principal.[20]
On the other hand, permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out with the contractor or subcontractor the performance or completion of a specific job, work, or service within a definite or predetermined period, regardless of whether such job, work, or service is to be performed or completed within or outside the premises of the principal. [21]
A person is considered engaged in legitimate job contracting or subcontracting if the following conditions concur:
(a) The contractor carries on a distinct and independent business and undertakes the contract work on his account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of his work except as to the results thereof;
(b) The contractor has substantial capital or investment; and
(c) The agreement between the principal and the contractor or subcontractor assures the contractual employees' entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure, and social welfare benefits.[22]
Given the above standards, we sustain the petitioners’ contention that BMSI is engaged in labor-only contracting.
First, petitioners worked at LSC’s premises, and nowhere else. Other than the provisions of the Agreement, there was no showing that it was BMSI which established petitioners’ working procedure and methods, which supervised petitioners in their work, or which evaluated the same. There was absolute lack of evidence that BMSI exercised control over them or their work, except for the fact that petitioners were hired by BMSI.
Second, LSC was unable to present proof that BMSI had substantial capital. The record before us is bereft of any proof pertaining to the contractor’s capitalization, nor to its investment in tools, equipment, or implements actually used in the performance or completion of the job, work, or service that it was contracted to render. What is clear was that the equipment used by BMSI were owned by, and merely rented from, LSC.
In Mandaue Galleon Trade, Inc. v. Andales,[23] we held:
The law casts the burden on the contractor to prove that it has substantial capital, investment, tools, etc. Employees, on the other hand, need not prove that the contractor does not have substantial capital, investment, and tools to engage in job-contracting.
Third, petitioners performed activities which were directly related to the main business of LSC. The work of petitioners as checkers, welders, utility men, drivers, and mechanics could only be characterized as part of, or at least clearly related to, and in the pursuit of, LSC’s business. Logically, when petitioners were assigned by BMSI to LSC, BMSI acted merely as a labor-only contractor.
Lastly, as found by the NLRC, BMSI had no other client except for LSC, and neither BMSI nor LSC refuted this finding, thereby bolstering the NLRC finding that BMSI is a labor-only contractor.
The CA erred in considering BMSI’s Certificate of Registration as sufficient proof that it is an independent contractor. In San Miguel Corporation v. Vicente B. Semillano, Nelson Mondejas, Jovito Remada, Alilgilan Multi-Purpose Coop (AMPCO), and Merlyn N. Policarpio,[24] we held that a Certificate of Registration issued by the Department of Labor and Employment is not conclusive evidence of such status. The fact of registration simply prevents the legal presumption of being a mere labor-only contractor from arising.[25]
Indubitably, BMSI can only be classified as a labor-only contractor. The CA, therefore, erred when it ruled otherwise. Consequently, the workers that BMSI supplied to LSC became regular employees of the latter.[26] Having gained regular status, petitioners were entitled to security of tenure and could only be dismissed for just or authorized causes and after they had been accorded due process.
Petitioners lost their employment when LSC terminated its Agreement with BMSI. However, the termination of LSC’s Agreement with BMSI cannot be considered a just or an authorized cause for petitioners’ dismissal. In Almeda v. Asahi Glass Philippines. Inc. v. Asahi Glass Philippines, Inc.,[27] this Court declared:
The sole reason given for the dismissal of petitioners by SSASI was the termination of its service contract with respondent. But since SSASI was a labor-only contractor, and petitioners were to be deemed the employees of respondent, then the said reason would not constitute a just or authorized cause for petitioners’ dismissal. It would then appear that petitioners were summarily dismissed based on the aforecited reason, without compliance with the procedural due process for notice and hearing.
Herein petitioners, having been unjustly dismissed from work, are entitled to reinstatement without loss of seniority rights and other privileges and to full back wages, inclusive of allowances, and to other benefits or their monetary equivalents computed from the time compensation was withheld up to the time of actual reinstatement. Their earnings elsewhere during the periods of their illegal dismissal shall not be deducted therefrom.
Accordingly, we hold that the NLRC committed no grave abuse of discretion in its decision. Conversely, the CA committed a reversible error when it set aside the NLRC ruling.
WHEREFORE, the petition is GRANTED. The Decision and the Resolution of the Court of Appeals in CA-G.R. SP. No. 103804 are REVERSED and SET ASIDE. Petitioners Emmanuel Babas, Danilo T. Banag, Arturo V. Villarin, Sr., Edwin Javier, Sandi Bermeo, Rex Allesa, and Arsenio Estorque are declared regular employees of Lorenzo Shipping Corporation. Further, LSC is ordered to reinstate the seven petitioners to their former position without loss of seniority rights and other privileges, and to pay full backwages, inclusive of allowances, and other benefits or their monetary equivalent, computed from the time compensation was withheld up to the time of actual reinstatement.
No pronouncement as to costs.
SO ORDERED.
EMMANUEL BABAS, DANILO T. BANAG, ARTURO V. VILLARIN, SR., EDWIN JAVIER, SANDI BERMEO, REX ALLESA, MAXIMO SORIANO, JR., ARSENIO ESTORQUE, and FELIXBERTO ANAJAO vs. LORENZO SHIPPING CORPORATION,
G.R. No. 186091
December 15, 2010
DECISION
NACHURA, J.:
x x x.
Petitioners vigorously insist that they were employees of LSC; and that BMSI is not an independent contractor, but a labor-only contractor. LSC, on the other hand, maintains that BMSI is an independent contractor, with adequate capital and investment. LSC capitalizes on the ratiocination made by the CA.
In declaring BMSI as an independent contractor, the CA, in the challenged Decision, heavily relied on the provisions of the Agreement, wherein BMSI declared that it was an independent contractor, with substantial capital and investment.
De Los Santos v. NLRC[18] instructed us that the character of the business, i.e., whether as labor-only contractor or as job contractor, should
be measured in terms of, and determined by, the criteria set by statute. The parties cannot dictate by the mere expedience of a unilateral declaration in a contract the character of their business.
In San Miguel Corporation v. Vicente B. Semillano, Nelson Mondejas, Jovito Remada, Alilgilan Multi-Purpose Coop (AMPCO), and Merlyn N. Policarpio,[19] this Court explained:
Despite the fact that the service contracts contain stipulations which are earmarks of independent contractorship, they do not make it legally so. The language of a contract is neither determinative nor conclusive of the relationship between the parties. Petitioner SMC and AMPCO cannot dictate, by a declaration in a contract, the character of AMPCO's business, that is, whether as labor-only contractor, or job contractor. AMPCO's character should be measured in terms of, and determined by, the criteria set by statute.
Thus, in distinguishing between prohibited labor-only contracting and permissible job contracting, the totality of the facts and the surrounding circumstances of the case are to be considered.
Labor-only contracting, a prohibited act, is an arrangement where the contractor or subcontractor merely recruits, supplies, or places workers to perform a job, work, or service for a principal. In labor-only contracting, the following elements are present: (a) the contractor or subcontractor does not have substantial capital or investment to actually perform the job, work, or service under its own account and responsibility; and (b) the employees recruited, supplied, or placed by such contractor or subcontractor perform activities which are directly related to the main business of the principal.[20]
On the other hand, permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out with the contractor or subcontractor the performance or completion of a specific job, work, or service within a definite or predetermined period, regardless of whether such job, work, or service is to be performed or completed within or outside the premises of the principal. [21]
A person is considered engaged in legitimate job contracting or subcontracting if the following conditions concur:
(a) The contractor carries on a distinct and independent business and undertakes the contract work on his account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of his work except as to the results thereof;
(b) The contractor has substantial capital or investment; and
(c) The agreement between the principal and the contractor or subcontractor assures the contractual employees' entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure, and social welfare benefits.[22]
Given the above standards, we sustain the petitioners’ contention that BMSI is engaged in labor-only contracting.
First, petitioners worked at LSC’s premises, and nowhere else. Other than the provisions of the Agreement, there was no showing that it was BMSI which established petitioners’ working procedure and methods, which supervised petitioners in their work, or which evaluated the same. There was absolute lack of evidence that BMSI exercised control over them or their work, except for the fact that petitioners were hired by BMSI.
Second, LSC was unable to present proof that BMSI had substantial capital. The record before us is bereft of any proof pertaining to the contractor’s capitalization, nor to its investment in tools, equipment, or implements actually used in the performance or completion of the job, work, or service that it was contracted to render. What is clear was that the equipment used by BMSI were owned by, and merely rented from, LSC.
In Mandaue Galleon Trade, Inc. v. Andales,[23] we held:
The law casts the burden on the contractor to prove that it has substantial capital, investment, tools, etc. Employees, on the other hand, need not prove that the contractor does not have substantial capital, investment, and tools to engage in job-contracting.
Third, petitioners performed activities which were directly related to the main business of LSC. The work of petitioners as checkers, welders, utility men, drivers, and mechanics could only be characterized as part of, or at least clearly related to, and in the pursuit of, LSC’s business. Logically, when petitioners were assigned by BMSI to LSC, BMSI acted merely as a labor-only contractor.
Lastly, as found by the NLRC, BMSI had no other client except for LSC, and neither BMSI nor LSC refuted this finding, thereby bolstering the NLRC finding that BMSI is a labor-only contractor.
The CA erred in considering BMSI’s Certificate of Registration as sufficient proof that it is an independent contractor. In San Miguel Corporation v. Vicente B. Semillano, Nelson Mondejas, Jovito Remada, Alilgilan Multi-Purpose Coop (AMPCO), and Merlyn N. Policarpio,[24] we held that a Certificate of Registration issued by the Department of Labor and Employment is not conclusive evidence of such status. The fact of registration simply prevents the legal presumption of being a mere labor-only contractor from arising.[25]
Indubitably, BMSI can only be classified as a labor-only contractor. The CA, therefore, erred when it ruled otherwise. Consequently, the workers that BMSI supplied to LSC became regular employees of the latter.[26] Having gained regular status, petitioners were entitled to security of tenure and could only be dismissed for just or authorized causes and after they had been accorded due process.
Petitioners lost their employment when LSC terminated its Agreement with BMSI. However, the termination of LSC’s Agreement with BMSI cannot be considered a just or an authorized cause for petitioners’ dismissal. In Almeda v. Asahi Glass Philippines. Inc. v. Asahi Glass Philippines, Inc.,[27] this Court declared:
The sole reason given for the dismissal of petitioners by SSASI was the termination of its service contract with respondent. But since SSASI was a labor-only contractor, and petitioners were to be deemed the employees of respondent, then the said reason would not constitute a just or authorized cause for petitioners’ dismissal. It would then appear that petitioners were summarily dismissed based on the aforecited reason, without compliance with the procedural due process for notice and hearing.
Herein petitioners, having been unjustly dismissed from work, are entitled to reinstatement without loss of seniority rights and other privileges and to full back wages, inclusive of allowances, and to other benefits or their monetary equivalents computed from the time compensation was withheld up to the time of actual reinstatement. Their earnings elsewhere during the periods of their illegal dismissal shall not be deducted therefrom.
Accordingly, we hold that the NLRC committed no grave abuse of discretion in its decision. Conversely, the CA committed a reversible error when it set aside the NLRC ruling.
WHEREFORE, the petition is GRANTED. The Decision and the Resolution of the Court of Appeals in CA-G.R. SP. No. 103804 are REVERSED and SET ASIDE. Petitioners Emmanuel Babas, Danilo T. Banag, Arturo V. Villarin, Sr., Edwin Javier, Sandi Bermeo, Rex Allesa, and Arsenio Estorque are declared regular employees of Lorenzo Shipping Corporation. Further, LSC is ordered to reinstate the seven petitioners to their former position without loss of seniority rights and other privileges, and to pay full backwages, inclusive of allowances, and other benefits or their monetary equivalent, computed from the time compensation was withheld up to the time of actual reinstatement.
No pronouncement as to costs.
SO ORDERED.
Murder
G.R. No. 192187
PEOPLE OF THE PHILIPPINES vs. ALEX LINGASA,
JORGE BI-AY, and “JOHN DOE,”
G.R. No. 192187
December 13, 2010
D E C I S I O N
MENDOZA, J.:
Challenged in this appeal is the July 16, 2009 Decision[1] of the Court of Appeals (CA) which affirmed the March 27, 2003 Decision[2] of the Regional Trial Court, Branch 61, Kabankalan City, Negros Occidental (RTC), finding accused Eliseo Bi-ay, Jr. y Sarintas alias “Gideon” guilty beyond reasonable doubt of the crime of murder.
On March 31, 1997, an information for Murder was filed against accused Eliseo Bi-ay, Jr. (Eliseo) and his co-accused, Jorge Bi-ay and Alex Lingasa, which reads as follows:
That on or about the 26th day of December, 1996, in the Municipality of Cauayan, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, in company of their other co-accused, whose true name is still unknown and herein designated only as “JOHN DOE,” armed with a bolo, conspiring, confederating and mutually helping one another, with evident premeditation and treachery, with intent to kill, did then and there, willfully, unlawfully and feloniously attack, assault, and hack one RODRIGO CLARO, thereby inflicting multiple fatal hack wounds upon the body of the latter which caused his death.
CONTRARY TO LAW.[3]
When arraigned on April 3, 2000, Eliseo pleaded not guilty to the charge. Trial proceeded but only with respect to him as his co-accused were then at-large.
The respective positions of the parties were succinctly recited in the subject decision of the CA as follows:
On December 26, 1996, at around 7:00 in the evening, the victim Rodrigo Claro, together with his son Baby Boy Claro, were in the house of the victim’s father, Francisco Claro, in Sitio, Barangay Caliling, Cauayan, Negros Occidental. While Rodrigo and Francisco were talking with each other, accused Jorge Bi-ay, Alex Lingasa, and appellant Eliseo Bi-ay, Jr. alias “Gideon” arrived. Accused Jorge Bi-ay, being the eldest in the group, then approached Francisco near the side of the house and asked for coffee. Francisco readily accommodated his visitors by getting coffee and sugar from the store of his younger sister nearby his house, and boiled some water. When the coffee was ready, accused Jorged [sic] requested the victim Rodrigo to serve coffee to his two companions, accused Alex and appellant Eliseo, who were waiting outside, which Rodrigo acceded.
Rodrigo then went out of the house and while carrying the two (2) cups of coffee, he noticed that his 10 year-old son, Baby Boy Claro, was following him. He turned his back and told his son to stay behind. When he was about to proceed, appellant Eliseo who was ahead of him, suddenly hacked him on the nape which caused him to lose his balance and fall to the ground. Accused Alex followed suit and stabbed Rodrigo at the back by thrusting a bladed instrument. Accused Jorge also went towards Rodrigo and stabbed him.
Witnessing the vicious assault on his father, Baby Boy Claro ran and shouted to his grandfather for help who then went out from his house with a bolo. Within ten (10) meters away, Francisco saw appellant delivering hacking blows on his son who was then lying on the ground face up, while accused Jorge and Alex immediately withdrew and fled as Francisco nearly approached them. Thereafter, appellant also ran away after all of them took turns in hacking the victim.
By the time Francisco finally reached his bloodied son, the victim already succumbed to the multiple stab wounds he sustained which caused his untimely death.
After the incident, Dr. Lorna V. Transmontero, Municipal Health Officer of Cauayan, Negros Occidental conducted an autopsy and yielded the following post mortem findings: x x x.
On the other hand, appellant Eliseo denies the accusation against him and interposed the defense of alibi. He claims that on December 26, 1996, at around 5:00 in the afternoon, he and Jerry Siblag were in Sitio Kalapisan, Barangay Inayawan, Cauayan, Negros Occidental, to rent a sound system from Uldarico Alipan to be used in celebrating the birth anniversary of his deceased grandmother. Together with Uldarico, they left the latter’s house and brought the sound system to his father’s house at Sitio Kantyang, about seven (7) kilometers away, and arrived at around 7:00 in the evening. He stayed at the house of his father the entire evening and never left the place.[4]
On March 27, 2003, the RTC rendered a decision finding the accused guilty beyond reasonable doubt of murder, the dispositive portion of which reads:
WHEREFORE, the Court finds accused Eliseo Bi-ay, Jr. alias “Gideon” guilty beyond reasonable doubt of the crime of murder as charged qualified by treachery and hereby sentences him to a penalty of imprisonment of reclusion perpetua and to indemnify the heirs of Rodrigo Claro the amount of P50, 000.00 by reason of his death and to pay the costs. x x x.
Aggrieved, Eliseo appealed the RTC Decision to the CA assigning this lone error:
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY AS PRINCIPAL IN THE COMMISSION OF THE CRIME CHARGED WHEN HE IS ONLY LIABLE AS AN ACCOMPLICE.
The CA noted that Eliseo raised the defense of denial and alibi during the trial of the case at the RTC but, on appeal, he argued that he could only be liable as an accomplice, and not as a principal. In his Brief,[6] Eliseo assailed the RTC for finding him guilty as principal by direct participation in the commission of the crime of murder against the victim. He claimed that the prosecution failed to show clear proof that he conspired with his co-accused in the killing of the victim. His alleged cooperation in the assault on the victim was not indispensable, thus, he could only be held liable as an accomplice. Moreover, the credibility of the prosecution witnesses was doubtful because of the glaring inconsistencies and lapses in their narration of their version of the incident.
On the other hand, the prosecution counters that the role of the accused as principal by direct participation in the execution of the crime was clearly established. Moreover, the questioned discrepancies and inconsistencies in the prosecution witnesses’ testimonies are minor and trivial.
On July 16, 2009, the CA rendered a decision affirming with modification the RTC Decision x x x.
Hence, this petition raising this lone
ISSUE
WHETHER OR NOT THE ACCUSED-APPELLANT ELISEO-BI-AY, JR. y SARINTAS alias “GIDEON” IS GUILTY BEYOND REASONABLE DOUBT OF MURDER.
The accused argues that the facts established by the prosecution failed to show the existence of conspiracy in the killing of the victim. It was rather proven that he did not have any direct participation in the slaying because his initial hacking of the victim did not mortally wound him. The victim died after he was fatally stabbed in the back by his co-accused. Hence, he can only be liable as an accomplice because his participation was not indispensable compared with those of his co-accused.
Moreover, the accused claims that Francisco Claro (Francisco), testified on direct examination that he saw all the accused hacking his son. On cross-examination, however, his testimony was to the effect that he saw the other assailants fleeing away from the scene of the crime and the accused was the only one holding a weapon and stabbing the victim.
The Court finds no merit in the appeal.
It is a well-entrenched doctrine that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and note their demeanor, conduct and attitude under grilling examination.[8] The trial court has the singular opportunity to observe the witnesses “through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sign, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien.”[9]
This rule admits of exceptions, however, such as when the trial court’s findings of facts and conclusions are not supported by the evidence on record, or when certain facts of substance and value likely to change the outcome of the case have been overlooked by the lower court, or when the assailed decision is based on a misapprehension of facts.[10]
In the case at bench, the Court has not come across any misapprehension of facts. The prosecution witnesses, Francisco and Baby Boy Claro (Baby Boy), saw with their own eyes the brutal killing of the victim. The Court finds no indication that either Francisco or Baby Boy was lying.
Thus, in the absence of any of these exceptions warranting the reversal of the decisions of the courts below, the general rule applies. In addition, the Court notes that the trial court’s findings have been affirmed by the appellate court which, therefore, makes said findings generally conclusive and binding upon this Court.
Strangely, the accused interposed inconsistent defenses, as noted by the CA. In the RTC, he claimed denial and alibi. On appeal, he put up the defense that his participation in the murder was merely that of an accomplice instead of that of a principal by direct participation. Clearly, his change of defense strategy rendered his defense impotent.
Indeed, the accused is guilty as principal by direct participation. By his own admission, he delivered the first blow on the unwary victim. He initiated the deadly assault by hacking the hapless victim on the nape, causing the latter to immediately lose his balance and fall to the ground. Right after his initial attack, his co-accused rushed towards the poor and helpless victim and stabbed him several times in the back until he died. As confirmed by the autopsy report of Dr. Lorna V. Transmontero, the Municipal Health Officer of Cauayan, Negros Occidental, the victim died of multiple stab wounds inflicted on several parts of his body.
Considering the above circumstances, the Court cannot hold the accused liable as a mere accomplice because his active and direct involvement in the brutal killing of the victim was too obvious.
For said reason, it is not even important to find out if conspiracy attended the commission of the crime. The conviction of the accused was not because of any conspiracy. He was convicted because he was positively identified by the eyewitnesses, Francisco and Baby Boy, as one of the assailants who actively and directly participated in the killing of Rodrigo Claro.
At any rate, the records clearly prove that there was conspiracy in the commission of the crime. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Where all the accused acted in concert at the time of the commission of the offense, and it was shown by such acts that they had the same purpose or common design and were united in its execution, conspiracy is sufficiently established.[11]
In the case at bench, the initial hacking by the accused followed by the multiple stabbing by his co-accused proves that they acted in concert at the time of the brutal killing. The fact that each one of them carried a deadly bladed weapon shows that they acted pursuant to the singular purpose of killing the victim. It is not important who delivered the fatal blow. In conspiracy, it matters not who among the accused actually killed the victim. The act of one is the act of all. Each of the accused is equally guilty of the crime committed.[12]
On the alleged inconsistency or discrepancy in the testimony of Francisco, the Court finds none. The alleged inconsistency is more apparent than real. As pointed out by the CA, what he meant was that while he was still approaching them, he witnessed the accused ganging up on his son. When he was already there, he saw the accused continuously stabbing him while his companions were running away. Thus the Court considers innocuous whatever discrepancies there were in the testimony of Francisco.
Truth-telling witnesses are not expected to give flawless testimonies, considering the lapse of time and the treachery of human memory. The Court has stated time and again that minor inconsistencies in the narration of witnesses do not detract from their essential credibility as long as their testimonies on the whole are coherent and intrinsically believable. Inaccuracies may in fact suggest that the witnesses are telling the truth and have not been rehearsed.[13] Instead, they may even serve to strengthen their credibility as they negate any suspicion that their testimonies have been fabricated or rehearsed.
WHEREFORE, the July 16, 2009 Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. ALEX LINGASA,
JORGE BI-AY, and “JOHN DOE,”
G.R. No. 192187
December 13, 2010
D E C I S I O N
MENDOZA, J.:
Challenged in this appeal is the July 16, 2009 Decision[1] of the Court of Appeals (CA) which affirmed the March 27, 2003 Decision[2] of the Regional Trial Court, Branch 61, Kabankalan City, Negros Occidental (RTC), finding accused Eliseo Bi-ay, Jr. y Sarintas alias “Gideon” guilty beyond reasonable doubt of the crime of murder.
On March 31, 1997, an information for Murder was filed against accused Eliseo Bi-ay, Jr. (Eliseo) and his co-accused, Jorge Bi-ay and Alex Lingasa, which reads as follows:
That on or about the 26th day of December, 1996, in the Municipality of Cauayan, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, in company of their other co-accused, whose true name is still unknown and herein designated only as “JOHN DOE,” armed with a bolo, conspiring, confederating and mutually helping one another, with evident premeditation and treachery, with intent to kill, did then and there, willfully, unlawfully and feloniously attack, assault, and hack one RODRIGO CLARO, thereby inflicting multiple fatal hack wounds upon the body of the latter which caused his death.
CONTRARY TO LAW.[3]
When arraigned on April 3, 2000, Eliseo pleaded not guilty to the charge. Trial proceeded but only with respect to him as his co-accused were then at-large.
The respective positions of the parties were succinctly recited in the subject decision of the CA as follows:
On December 26, 1996, at around 7:00 in the evening, the victim Rodrigo Claro, together with his son Baby Boy Claro, were in the house of the victim’s father, Francisco Claro, in Sitio, Barangay Caliling, Cauayan, Negros Occidental. While Rodrigo and Francisco were talking with each other, accused Jorge Bi-ay, Alex Lingasa, and appellant Eliseo Bi-ay, Jr. alias “Gideon” arrived. Accused Jorge Bi-ay, being the eldest in the group, then approached Francisco near the side of the house and asked for coffee. Francisco readily accommodated his visitors by getting coffee and sugar from the store of his younger sister nearby his house, and boiled some water. When the coffee was ready, accused Jorged [sic] requested the victim Rodrigo to serve coffee to his two companions, accused Alex and appellant Eliseo, who were waiting outside, which Rodrigo acceded.
Rodrigo then went out of the house and while carrying the two (2) cups of coffee, he noticed that his 10 year-old son, Baby Boy Claro, was following him. He turned his back and told his son to stay behind. When he was about to proceed, appellant Eliseo who was ahead of him, suddenly hacked him on the nape which caused him to lose his balance and fall to the ground. Accused Alex followed suit and stabbed Rodrigo at the back by thrusting a bladed instrument. Accused Jorge also went towards Rodrigo and stabbed him.
Witnessing the vicious assault on his father, Baby Boy Claro ran and shouted to his grandfather for help who then went out from his house with a bolo. Within ten (10) meters away, Francisco saw appellant delivering hacking blows on his son who was then lying on the ground face up, while accused Jorge and Alex immediately withdrew and fled as Francisco nearly approached them. Thereafter, appellant also ran away after all of them took turns in hacking the victim.
By the time Francisco finally reached his bloodied son, the victim already succumbed to the multiple stab wounds he sustained which caused his untimely death.
After the incident, Dr. Lorna V. Transmontero, Municipal Health Officer of Cauayan, Negros Occidental conducted an autopsy and yielded the following post mortem findings: x x x.
On the other hand, appellant Eliseo denies the accusation against him and interposed the defense of alibi. He claims that on December 26, 1996, at around 5:00 in the afternoon, he and Jerry Siblag were in Sitio Kalapisan, Barangay Inayawan, Cauayan, Negros Occidental, to rent a sound system from Uldarico Alipan to be used in celebrating the birth anniversary of his deceased grandmother. Together with Uldarico, they left the latter’s house and brought the sound system to his father’s house at Sitio Kantyang, about seven (7) kilometers away, and arrived at around 7:00 in the evening. He stayed at the house of his father the entire evening and never left the place.[4]
On March 27, 2003, the RTC rendered a decision finding the accused guilty beyond reasonable doubt of murder, the dispositive portion of which reads:
WHEREFORE, the Court finds accused Eliseo Bi-ay, Jr. alias “Gideon” guilty beyond reasonable doubt of the crime of murder as charged qualified by treachery and hereby sentences him to a penalty of imprisonment of reclusion perpetua and to indemnify the heirs of Rodrigo Claro the amount of P50, 000.00 by reason of his death and to pay the costs. x x x.
Aggrieved, Eliseo appealed the RTC Decision to the CA assigning this lone error:
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY AS PRINCIPAL IN THE COMMISSION OF THE CRIME CHARGED WHEN HE IS ONLY LIABLE AS AN ACCOMPLICE.
The CA noted that Eliseo raised the defense of denial and alibi during the trial of the case at the RTC but, on appeal, he argued that he could only be liable as an accomplice, and not as a principal. In his Brief,[6] Eliseo assailed the RTC for finding him guilty as principal by direct participation in the commission of the crime of murder against the victim. He claimed that the prosecution failed to show clear proof that he conspired with his co-accused in the killing of the victim. His alleged cooperation in the assault on the victim was not indispensable, thus, he could only be held liable as an accomplice. Moreover, the credibility of the prosecution witnesses was doubtful because of the glaring inconsistencies and lapses in their narration of their version of the incident.
On the other hand, the prosecution counters that the role of the accused as principal by direct participation in the execution of the crime was clearly established. Moreover, the questioned discrepancies and inconsistencies in the prosecution witnesses’ testimonies are minor and trivial.
On July 16, 2009, the CA rendered a decision affirming with modification the RTC Decision x x x.
Hence, this petition raising this lone
ISSUE
WHETHER OR NOT THE ACCUSED-APPELLANT ELISEO-BI-AY, JR. y SARINTAS alias “GIDEON” IS GUILTY BEYOND REASONABLE DOUBT OF MURDER.
The accused argues that the facts established by the prosecution failed to show the existence of conspiracy in the killing of the victim. It was rather proven that he did not have any direct participation in the slaying because his initial hacking of the victim did not mortally wound him. The victim died after he was fatally stabbed in the back by his co-accused. Hence, he can only be liable as an accomplice because his participation was not indispensable compared with those of his co-accused.
Moreover, the accused claims that Francisco Claro (Francisco), testified on direct examination that he saw all the accused hacking his son. On cross-examination, however, his testimony was to the effect that he saw the other assailants fleeing away from the scene of the crime and the accused was the only one holding a weapon and stabbing the victim.
The Court finds no merit in the appeal.
It is a well-entrenched doctrine that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and note their demeanor, conduct and attitude under grilling examination.[8] The trial court has the singular opportunity to observe the witnesses “through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sign, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien.”[9]
This rule admits of exceptions, however, such as when the trial court’s findings of facts and conclusions are not supported by the evidence on record, or when certain facts of substance and value likely to change the outcome of the case have been overlooked by the lower court, or when the assailed decision is based on a misapprehension of facts.[10]
In the case at bench, the Court has not come across any misapprehension of facts. The prosecution witnesses, Francisco and Baby Boy Claro (Baby Boy), saw with their own eyes the brutal killing of the victim. The Court finds no indication that either Francisco or Baby Boy was lying.
Thus, in the absence of any of these exceptions warranting the reversal of the decisions of the courts below, the general rule applies. In addition, the Court notes that the trial court’s findings have been affirmed by the appellate court which, therefore, makes said findings generally conclusive and binding upon this Court.
Strangely, the accused interposed inconsistent defenses, as noted by the CA. In the RTC, he claimed denial and alibi. On appeal, he put up the defense that his participation in the murder was merely that of an accomplice instead of that of a principal by direct participation. Clearly, his change of defense strategy rendered his defense impotent.
Indeed, the accused is guilty as principal by direct participation. By his own admission, he delivered the first blow on the unwary victim. He initiated the deadly assault by hacking the hapless victim on the nape, causing the latter to immediately lose his balance and fall to the ground. Right after his initial attack, his co-accused rushed towards the poor and helpless victim and stabbed him several times in the back until he died. As confirmed by the autopsy report of Dr. Lorna V. Transmontero, the Municipal Health Officer of Cauayan, Negros Occidental, the victim died of multiple stab wounds inflicted on several parts of his body.
Considering the above circumstances, the Court cannot hold the accused liable as a mere accomplice because his active and direct involvement in the brutal killing of the victim was too obvious.
For said reason, it is not even important to find out if conspiracy attended the commission of the crime. The conviction of the accused was not because of any conspiracy. He was convicted because he was positively identified by the eyewitnesses, Francisco and Baby Boy, as one of the assailants who actively and directly participated in the killing of Rodrigo Claro.
At any rate, the records clearly prove that there was conspiracy in the commission of the crime. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Where all the accused acted in concert at the time of the commission of the offense, and it was shown by such acts that they had the same purpose or common design and were united in its execution, conspiracy is sufficiently established.[11]
In the case at bench, the initial hacking by the accused followed by the multiple stabbing by his co-accused proves that they acted in concert at the time of the brutal killing. The fact that each one of them carried a deadly bladed weapon shows that they acted pursuant to the singular purpose of killing the victim. It is not important who delivered the fatal blow. In conspiracy, it matters not who among the accused actually killed the victim. The act of one is the act of all. Each of the accused is equally guilty of the crime committed.[12]
On the alleged inconsistency or discrepancy in the testimony of Francisco, the Court finds none. The alleged inconsistency is more apparent than real. As pointed out by the CA, what he meant was that while he was still approaching them, he witnessed the accused ganging up on his son. When he was already there, he saw the accused continuously stabbing him while his companions were running away. Thus the Court considers innocuous whatever discrepancies there were in the testimony of Francisco.
Truth-telling witnesses are not expected to give flawless testimonies, considering the lapse of time and the treachery of human memory. The Court has stated time and again that minor inconsistencies in the narration of witnesses do not detract from their essential credibility as long as their testimonies on the whole are coherent and intrinsically believable. Inaccuracies may in fact suggest that the witnesses are telling the truth and have not been rehearsed.[13] Instead, they may even serve to strengthen their credibility as they negate any suspicion that their testimonies have been fabricated or rehearsed.
WHEREFORE, the July 16, 2009 Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Chain of evidence
G.R. No. 189841
PEOPLE OF THE PHILIPPINES vs. EFREN DITONA y MONTEFALCON,G.R. No. 189841, December 15, 2010
DECISION
ABAD, J.:
This case is about the need for the prosecution to show proof that the integrity of seized prohibited drugs has been preserved from the moment of seizure to the moment they are presented in court.
x x x.
The sole issue for resolution is whether or not the prosecution was able to establish beyond reasonable doubt Ditona’s guilt for illegal possession and sale of shabu.
x x x.
To successfully prosecute an accused for selling illegal drugs, the prosecution has to prove: (1) the identities of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment for it.[12] On the other hand, for an accused to be convicted of possession of illegal drugs, the prosecution is required to prove that: (1) the accused was in possession of prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the prohibited drug.[13]
In both instances, the State has to prove as well the corpus delicti, the body of the crime.[14] It must be shown that the suspected substance the police officers seized from the accused is the same thing presented in court during the trial. Thus, the chain of custody rule is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court.[15] The witnesses should be able to describe these movements to ensure that there had been no change in the condition of the item and that no one who did not belong in the chain had access to the same.[16]
Here, the prosecution dismally failed to prove the corpus delicti since there were substantial gaps in the chain of custody of the seized drugs which raised doubts on the authenticity of the evidence presented in court.
To begin with, SPO1 Flores, PO3 Ventura, and PO2 Delos Reyes executed a Joint Affidavit,[17] which formed part of their direct testimonies, in which they narrated the details of the buy-bust operation. Yet, they did not say how they handled the seized drugs from the time they frisked Ditona until they brought him to the police station. They also omitted these important points in their testimonies on direct and cross-examination.
PO2 Delos Reyes testified on the details of the seized drugs, the gun, and the ammunitions taken from the persons in the house but he did not specify what things he confiscated from Ditona. PO3 Ventura, on the other hand, merely testified that he issued a receipt for the things the police seized, thus:[18]
PROSECUTOR:
As regards the shabu, we will maintain it to be collectively marked as Exhibit “B.” Now…will you tell us briefly your participation in this police operation?
A: I was tasked as back-up together with PO3 [sic] Allan Delos Reyes. It was SPO1 Alfredo Flores who acted as poseur-buyer.
Q: After the consummation, Alfredo Flores gave his pre-arranged signal and when Ditona saw it, and sensed the presence the other members of the team he tried to ran inside his house and that’s the time we gave chase upon which we saw another person inside the sala?
A: Yes Sir.
Q: By the way, what was the lighting condition when this incident transpired?
A: From the light post, it is well-lighted…near the house at No. 7-9th St.
Q: In connection with this drug operation, do you recall having prepared a receipt of evidence or property seized?
A: Yes Sir.
Q: If you see this again, will you be able to recognize it?
A: Yes Sir.
Q: I am showing to you a document which we request to be marked as Exhibit “L,” please go over this and tell if this is the receipt of property seized you are referring to?
A: Yes Sir, this is it.
Q: Can you identify the signatures indicated below?
A: This is Alfredo Flores, this is my signature and this is Allan Delos Reyes’ signature.
Finally, SPO1 Flores testified only that he was the one who bought the shabu from Ditona, thus:[19]
Q: You said you were able to buy shabu on July 19, 2002, from whom were you able to buy shabu?
A: From Efren Ditona, Sir.
Q: Will you tell the Court the quantity of shabu you were able to purchase?
A: One sachet of shabu containing 0.2 grams.
Q: If you see the stuff you were able to buy, will you be able to recognize this?
ATTY. COLOMA:
We stipulate that the witness can identify the stuff.
Quite clearly, the prosecution failed to establish the required chain of custody of the prohibited drugs through the testimonies of the police officers. While the RTC noted that SPO1 Flores and PO3 Ventura placed their initials, “AF” and “NV,” on the seized drugs, they did not identify the markings as theirs during their direct testimonies nor did they testify when and where they made such markings. Moreover, they failed to show how the seized drugs reached the laboratory technician who examined it and how the same were stored pending turnover to the court.[20]
Indeed, there is no room to apply the presumption of regularity in the police officers’ performance of official duty. While the testimonies of the police officers who apprehended the accused are generally accorded full faith and credit because of the presumption that they have performed their duties regularly, such presumption is effectively destroyed where the performance of their duties is tainted with failure to comply with the prescribed procedure and guidelines.[21]
The drug enforcement agencies of the government and the prosecution should put their acts together to ensure that the guilty are punished and the innocent absolved. Poor handling and preservation of the integrity of evidence show lack of professionalism and waste the time that the courts could use for hearing and adjudicating other cases. Prosecutors ought not to file drugs cases in court unless the law enforcement agencies are able to show documented compliance with every requirement of Section 21 of Republic Act 9165, the Comprehensive Dangerous Drugs Act of 2002. Likewise prosecutors ought to have a checklist of the questions they should ask their witnesses in drugs cases that would elicit the required proof.
WHEREFORE, the Court GRANTS the petition and MODIFIES the assailed Decision of the Court of Appeals in CA-G.R. CR-HC 03095 dated July 31, 2009 in that accused-appellant Efren Ditona y Montefalcon is ACQUITTED with respect to the crimes charged in Criminal Cases 436-2002, 437-2002, and 466-2002. The Court, however, AFFIRMS the finding of the Court of Appeals of his guilt beyond reasonable doubt with respect to the charge of violation of Section 261(q) in relation to Section 264 of the Omnibus Election Code in Criminal Case 438-02 and the corresponding penalty of imprisonment from one (1) year to six (6) years meted out to him.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. EFREN DITONA y MONTEFALCON,G.R. No. 189841, December 15, 2010
DECISION
ABAD, J.:
This case is about the need for the prosecution to show proof that the integrity of seized prohibited drugs has been preserved from the moment of seizure to the moment they are presented in court.
x x x.
The sole issue for resolution is whether or not the prosecution was able to establish beyond reasonable doubt Ditona’s guilt for illegal possession and sale of shabu.
x x x.
To successfully prosecute an accused for selling illegal drugs, the prosecution has to prove: (1) the identities of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment for it.[12] On the other hand, for an accused to be convicted of possession of illegal drugs, the prosecution is required to prove that: (1) the accused was in possession of prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the prohibited drug.[13]
In both instances, the State has to prove as well the corpus delicti, the body of the crime.[14] It must be shown that the suspected substance the police officers seized from the accused is the same thing presented in court during the trial. Thus, the chain of custody rule is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court.[15] The witnesses should be able to describe these movements to ensure that there had been no change in the condition of the item and that no one who did not belong in the chain had access to the same.[16]
Here, the prosecution dismally failed to prove the corpus delicti since there were substantial gaps in the chain of custody of the seized drugs which raised doubts on the authenticity of the evidence presented in court.
To begin with, SPO1 Flores, PO3 Ventura, and PO2 Delos Reyes executed a Joint Affidavit,[17] which formed part of their direct testimonies, in which they narrated the details of the buy-bust operation. Yet, they did not say how they handled the seized drugs from the time they frisked Ditona until they brought him to the police station. They also omitted these important points in their testimonies on direct and cross-examination.
PO2 Delos Reyes testified on the details of the seized drugs, the gun, and the ammunitions taken from the persons in the house but he did not specify what things he confiscated from Ditona. PO3 Ventura, on the other hand, merely testified that he issued a receipt for the things the police seized, thus:[18]
PROSECUTOR:
As regards the shabu, we will maintain it to be collectively marked as Exhibit “B.” Now…will you tell us briefly your participation in this police operation?
A: I was tasked as back-up together with PO3 [sic] Allan Delos Reyes. It was SPO1 Alfredo Flores who acted as poseur-buyer.
Q: After the consummation, Alfredo Flores gave his pre-arranged signal and when Ditona saw it, and sensed the presence the other members of the team he tried to ran inside his house and that’s the time we gave chase upon which we saw another person inside the sala?
A: Yes Sir.
Q: By the way, what was the lighting condition when this incident transpired?
A: From the light post, it is well-lighted…near the house at No. 7-9th St.
Q: In connection with this drug operation, do you recall having prepared a receipt of evidence or property seized?
A: Yes Sir.
Q: If you see this again, will you be able to recognize it?
A: Yes Sir.
Q: I am showing to you a document which we request to be marked as Exhibit “L,” please go over this and tell if this is the receipt of property seized you are referring to?
A: Yes Sir, this is it.
Q: Can you identify the signatures indicated below?
A: This is Alfredo Flores, this is my signature and this is Allan Delos Reyes’ signature.
Finally, SPO1 Flores testified only that he was the one who bought the shabu from Ditona, thus:[19]
Q: You said you were able to buy shabu on July 19, 2002, from whom were you able to buy shabu?
A: From Efren Ditona, Sir.
Q: Will you tell the Court the quantity of shabu you were able to purchase?
A: One sachet of shabu containing 0.2 grams.
Q: If you see the stuff you were able to buy, will you be able to recognize this?
ATTY. COLOMA:
We stipulate that the witness can identify the stuff.
Quite clearly, the prosecution failed to establish the required chain of custody of the prohibited drugs through the testimonies of the police officers. While the RTC noted that SPO1 Flores and PO3 Ventura placed their initials, “AF” and “NV,” on the seized drugs, they did not identify the markings as theirs during their direct testimonies nor did they testify when and where they made such markings. Moreover, they failed to show how the seized drugs reached the laboratory technician who examined it and how the same were stored pending turnover to the court.[20]
Indeed, there is no room to apply the presumption of regularity in the police officers’ performance of official duty. While the testimonies of the police officers who apprehended the accused are generally accorded full faith and credit because of the presumption that they have performed their duties regularly, such presumption is effectively destroyed where the performance of their duties is tainted with failure to comply with the prescribed procedure and guidelines.[21]
The drug enforcement agencies of the government and the prosecution should put their acts together to ensure that the guilty are punished and the innocent absolved. Poor handling and preservation of the integrity of evidence show lack of professionalism and waste the time that the courts could use for hearing and adjudicating other cases. Prosecutors ought not to file drugs cases in court unless the law enforcement agencies are able to show documented compliance with every requirement of Section 21 of Republic Act 9165, the Comprehensive Dangerous Drugs Act of 2002. Likewise prosecutors ought to have a checklist of the questions they should ask their witnesses in drugs cases that would elicit the required proof.
WHEREFORE, the Court GRANTS the petition and MODIFIES the assailed Decision of the Court of Appeals in CA-G.R. CR-HC 03095 dated July 31, 2009 in that accused-appellant Efren Ditona y Montefalcon is ACQUITTED with respect to the crimes charged in Criminal Cases 436-2002, 437-2002, and 466-2002. The Court, however, AFFIRMS the finding of the Court of Appeals of his guilt beyond reasonable doubt with respect to the charge of violation of Section 261(q) in relation to Section 264 of the Omnibus Election Code in Criminal Case 438-02 and the corresponding penalty of imprisonment from one (1) year to six (6) years meted out to him.
SO ORDERED.
Gross negligence; lawyer suspended.
A.C. No. 7907
SPOUSES VIRGILIO and ANGELINA ARANDA vs. ATTY. EMMANUEL F. ELAYDA,
A.C. No. 7907, December 15, 2010
D E C I S I O N
LEONARDO-DE CASTRO, J.:
The instant case stemmed from an administrative complaint filed by the spouses Virgilio and Angelina Aranda (spouses Aranda) before the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline, charging their former counsel, Atty. Emmanuel F. Elayda (Atty. Elayda), with gross negligence or gross misconduct in handling their case. The spouses Aranda were the defendants in Civil Case No. 232-0-01, entitled Martin V. Guballa v. Spouses Angelina and Virgilio Aranda, filed before the Regional Trial Court (RTC) of Olongapo City, Branch 72.
In the Complaint dated August 11, 2006,[1] the spouses Aranda alleged that Atty. Elayda’s handling of their case was “sorely inadequate, as shown by his failure to follow elementary norms of civil procedure and evidence,”[2] to wit:
4. That on February 14, 2006 hearing of the said case, the case was ordered submitted for decision [the spouses Aranda] and [Atty. Elayda] did not appear; certified copy of the order is attached as Annex “C”;
5. That the order setting this case for hearing on February 14, 2006 was sent only to [Atty. Elayda] and no notice was sent to [the spouses Aranda] that is they were unaware of said hearing and [Atty. Elayda] never informed them of the setting;
6. That despite receipt of the order dated February 14, 2006, [Atty. Elayda] never informed them of such order notwithstanding the follow-up they made of their case to him;
7. That [Atty. Elayda] did not lift any single finger to have the order dated February 14, 2006 reconsidered and/or set aside as is normally expected of a counsel devoted to the cause of his client;
8. That in view of the inaction of [Atty. Elayda] the court naturally rendered a judgment dated March 17, 2006 adverse to [the spouses Aranda] which copy thereof was sent only to [Atty. Elayda] and [the spouses Aranda] did not receive any copy thereof, certified xerox copy of the decision is attached as Annex “D”;
9. That they were totally unaware of said judgment as [Atty. Elayda] had not again lifted any single finger to inform them of such adverse judgment and that there is a need to take a remedial recourse thereto;
10. That [Atty. Elayda] did not even bother to file a notice of appeal hence the judgment became final and executory hence a writ of execution was issued upon motion of the plaintiff [Martin Guballa] in the said case;
11. That on July 18, 2006 Sheriff IV Leandro R. Madarag implemented the writ of execution and it was only at this time that [the spouses Aranda] became aware of the judgment of the Court, certified xerox copy of the writ of execution is attached as Annex “E”;
12. That on July 19, 2006, they wasted no time in verifying the status of their case before Regional Trial Court, Branch 72, Olongapo City and to their utter shock, dismay and disbelief, they found out that they have already lost their case and worst the decision had already become final and executory;
13. That despite their plea for a reasonable period to take a remedial recourse of the situation (the Sheriff initially gave them fifteen (15) days), Sheriff Madarag forcibly took possession and custody of their Mitsubishi Pajero with Plate No. 529;
14. That they were deprived of their right to present their evidence in the said case and of their right to appeal because of the gross negligence of respondent.”[3]
x x x.
Atty. Elayda filed his Answer[5] dated September 1, 2006, in which he narrated:
7. That this case also referred to [Atty. Elayda] sometime December 2004 after the [spouses Aranda] and its former counsel failed to appear in court on February 7, 2005;
8. That from December 2004, the [spouses Aranda] did not bother to contact [Atty. Elayda] to prepare for the case and in fact on May 30, 2005, [Atty. Elayda] had to ask for postponement of the case for reason that he still have to confer with the [spouses Aranda] who were not around;
9. That contrary to the allegations of the [spouses Aranda], there was not a single instance from December 2004 that the [spouses Aranda] called up [Atty. Elayda] to talk to him regarding their case;
10. That the [spouses Aranda] from December 2004 did not even bother to follow up their case in court just if to verify the status of their case and that it was only on July 19, 2006 that they verified the same and also the only time they tried to contact [Atty. Elayda];
11. That the [spouses Aranda] admitted in their Complaint that they only tried to contact [Atty. Elayda] when the writ of execution was being implemented on them;
12. That during the scheduled hearing of the case on February 14, 2006, [Atty. Elayda] was in fact went to RTC, Branch 72, Olongapo City and asked Mrs. Edith Miano to call him in Branch 73 where he had another case if the [spouses Aranda] show up in court so that [Atty. Elayda] can talk to them but obviously the [spouses Aranda] did not appear and Mrs. Miano did not bother to call [Atty. Elayda];
13. That [Atty. Elayda] was not at fault that he was not able to file the necessary pleadings in court because the [spouses Aranda] did not get in touch with him;
14. That [Atty. Elayda] cannot contact the [spouses Aranda] for the latter failed to give their contact number to [Atty. Elayda] nor did the [spouses Aranda] go to his office to leave their contact number;
14. That the [spouses Aranda] were negligent in their “I don’t care attitude” towards their case and for this reason that they alone should be blamed for what happened to their case x x x.”
x x x.
In Abay v. Montesino,[10] this Court held:
The legal profession is invested with public trust. Its goal is to render public service and secure justice for those who seek its aid. Thus, the practice of law is considered a privilege, not a right, bestowed by the State on those who show that they possess and continue to possess the legal qualifications required for the conferment of such privilege.
Verily, lawyers are expected to maintain at all times a high standard of legal proficiency and of morality – which includes honesty, integrity and fair dealing. They must perform their four-fold duty to society, the legal profession, the courts and their clients in accordance with the values and norms of the legal profession, as embodied in the Code of Professional Responsibility. Any conduct found wanting in these considerations, whether in their professional or private capacity, shall subject them to disciplinary action. In the present case, the failure of respondent to file the appellant’s brief was a clear violation of his professional duty to his client.[11]
The Canons of the Code of Professional Responsibility provide:
CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
x x x x
Rule 18.02 – A lawyer shall not handle any legal matter without adequate preparation.
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.
Rule 18.04 – A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client’s request for information.
CANON 19 – A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW.
From the foregoing, it is clear that Atty. Elayda is duty bound to uphold and safeguard the interests of his clients. He should be conscientious, competent and diligent in handling his clients’ cases. Atty. Elayda should give adequate attention, care, and time to all the cases he is handling. As the spouses Aranda’s counsel, Atty. Elayda is expected to monitor the progress of said spouses’ case and is obligated to exert all efforts to present every remedy or defense authorized by law to protect the cause espoused by the spouses Aranda.
Regrettably, Atty. Elayda failed in all these. Atty. Elayda even admitted that the spouses Aranda never knew of the scheduled hearings because said spouses never came to him and that he did not know the spouses’ whereabouts. While it is true that communication is a shared responsibility between a counsel and his clients, it is the counsel’s primary duty to inform his clients of the status of their case and the orders which have been issued by the court. He cannot simply wait for his clients to make an inquiry about the developments in their case. Close coordination between counsel and client is necessary for them to adequately prepare for the case, as well as to effectively monitor the progress of the case. Besides, it is elementary procedure for a lawyer and his clients to exchange contact details at the initial stages in order to have constant communication with each other. Again, Atty. Elayda’s excuse that he did not have the spouses Aranda’s contact number and that he did not know their address is simply unacceptable.
Furthermore, this Court will not countenance Atty. Elayda’s explanation that he cannot be faulted for missing the February 14, 2006 hearing of the spouses Aranda’s case. The Court quotes with approval the disquisition of Investigating Commissioner Pizarras:
Moreover, his defense that he cannot be faulted for what had happened during the hearing on February 14, 2006 because he was just at the other branch of the RTC for another case and left a message with the court stenographer to just call him when [the spouses Aranda] come, is lame, to say the least. In the first place, the counsel should not be at another hearing when he knew very well that he has a scheduled hearing for the [spouses Aranda’s] case at the same time. His attendance at the hearing should not be made to depend on the whether [the spouses Aranda] will come or not. The Order submitting the decision was given at the instance of the other party’s counsel mainly because of his absence there. Again, as alleged by the [the spouses Aranda] and as admitted by [Atty. Elayda] himself, he did not take the necessary remedial measure in order to ask that said Order be set aside.[12]
It is undisputed that Atty. Elayda did not act upon the RTC order submitting the spouses Aranda’s case for decision. Thus, a judgment was rendered against the spouses Aranda for a sum of money. Notice of said judgment was received by Atty. Elayda who again did not file any notice of appeal or motion for reconsideration and thus, the judgment became final and executory. Atty. Elayda did not also inform the spouses Aranda of the outcome of the case. The spouses Aranda came to know of the adverse RTC judgment, which by then had already become final and executory, only when a writ of execution was issued and subsequently implemented by the sheriff.
Evidently, Atty. Elayda was remiss in his duties and responsibilities as a member of the legal profession. His conduct shows that he not only failed to exercise due diligence in handling his clients’ case but in fact abandoned his clients’ cause. He proved himself unworthy of the trust reposed on him by his helpless clients. Moreover, Atty. Elayda owes fealty, not only to his clients, but also to the Court of which he is an officer.[13]
On a final note, it must be stressed that whenever a lawyer accepts a case, it deserves his full attention, diligence, skill and competence, regardless of its importance and whether or not it is for a fee or free.[14] Verily, in Santiago v. Fojas,[15] the Court held:
Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. He must serve the client with competence and diligence, and champion the latter’s cause with wholehearted fidelity, care, and devotion. Elsewise stated, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his client’s rights, and the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied. This simply means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession.[16]
WHEREFORE, the resolution of the IBP Board of Governors approving and adopting the Decision of the Investigating Commissioner is hereby AFFIRMED. Accordingly, respondent ATTY. EMMANUEL F. ELAYDA is hereby SUSPENDED from the practice of law for a period of SIX (6) MONTHS, with a stern warning that a repetition of the same or a similar act will be dealt with more severely.
Let a copy of this Decision be attached to Atty. Elayda’s personal record with the Office of the Bar Confidant and be furnished to all chapters of the Integrated Bar of the Philippines and to all the courts in the country for their information and guidance.
SO ORDERED.
SPOUSES VIRGILIO and ANGELINA ARANDA vs. ATTY. EMMANUEL F. ELAYDA,
A.C. No. 7907, December 15, 2010
D E C I S I O N
LEONARDO-DE CASTRO, J.:
The instant case stemmed from an administrative complaint filed by the spouses Virgilio and Angelina Aranda (spouses Aranda) before the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline, charging their former counsel, Atty. Emmanuel F. Elayda (Atty. Elayda), with gross negligence or gross misconduct in handling their case. The spouses Aranda were the defendants in Civil Case No. 232-0-01, entitled Martin V. Guballa v. Spouses Angelina and Virgilio Aranda, filed before the Regional Trial Court (RTC) of Olongapo City, Branch 72.
In the Complaint dated August 11, 2006,[1] the spouses Aranda alleged that Atty. Elayda’s handling of their case was “sorely inadequate, as shown by his failure to follow elementary norms of civil procedure and evidence,”[2] to wit:
4. That on February 14, 2006 hearing of the said case, the case was ordered submitted for decision [the spouses Aranda] and [Atty. Elayda] did not appear; certified copy of the order is attached as Annex “C”;
5. That the order setting this case for hearing on February 14, 2006 was sent only to [Atty. Elayda] and no notice was sent to [the spouses Aranda] that is they were unaware of said hearing and [Atty. Elayda] never informed them of the setting;
6. That despite receipt of the order dated February 14, 2006, [Atty. Elayda] never informed them of such order notwithstanding the follow-up they made of their case to him;
7. That [Atty. Elayda] did not lift any single finger to have the order dated February 14, 2006 reconsidered and/or set aside as is normally expected of a counsel devoted to the cause of his client;
8. That in view of the inaction of [Atty. Elayda] the court naturally rendered a judgment dated March 17, 2006 adverse to [the spouses Aranda] which copy thereof was sent only to [Atty. Elayda] and [the spouses Aranda] did not receive any copy thereof, certified xerox copy of the decision is attached as Annex “D”;
9. That they were totally unaware of said judgment as [Atty. Elayda] had not again lifted any single finger to inform them of such adverse judgment and that there is a need to take a remedial recourse thereto;
10. That [Atty. Elayda] did not even bother to file a notice of appeal hence the judgment became final and executory hence a writ of execution was issued upon motion of the plaintiff [Martin Guballa] in the said case;
11. That on July 18, 2006 Sheriff IV Leandro R. Madarag implemented the writ of execution and it was only at this time that [the spouses Aranda] became aware of the judgment of the Court, certified xerox copy of the writ of execution is attached as Annex “E”;
12. That on July 19, 2006, they wasted no time in verifying the status of their case before Regional Trial Court, Branch 72, Olongapo City and to their utter shock, dismay and disbelief, they found out that they have already lost their case and worst the decision had already become final and executory;
13. That despite their plea for a reasonable period to take a remedial recourse of the situation (the Sheriff initially gave them fifteen (15) days), Sheriff Madarag forcibly took possession and custody of their Mitsubishi Pajero with Plate No. 529;
14. That they were deprived of their right to present their evidence in the said case and of their right to appeal because of the gross negligence of respondent.”[3]
x x x.
Atty. Elayda filed his Answer[5] dated September 1, 2006, in which he narrated:
7. That this case also referred to [Atty. Elayda] sometime December 2004 after the [spouses Aranda] and its former counsel failed to appear in court on February 7, 2005;
8. That from December 2004, the [spouses Aranda] did not bother to contact [Atty. Elayda] to prepare for the case and in fact on May 30, 2005, [Atty. Elayda] had to ask for postponement of the case for reason that he still have to confer with the [spouses Aranda] who were not around;
9. That contrary to the allegations of the [spouses Aranda], there was not a single instance from December 2004 that the [spouses Aranda] called up [Atty. Elayda] to talk to him regarding their case;
10. That the [spouses Aranda] from December 2004 did not even bother to follow up their case in court just if to verify the status of their case and that it was only on July 19, 2006 that they verified the same and also the only time they tried to contact [Atty. Elayda];
11. That the [spouses Aranda] admitted in their Complaint that they only tried to contact [Atty. Elayda] when the writ of execution was being implemented on them;
12. That during the scheduled hearing of the case on February 14, 2006, [Atty. Elayda] was in fact went to RTC, Branch 72, Olongapo City and asked Mrs. Edith Miano to call him in Branch 73 where he had another case if the [spouses Aranda] show up in court so that [Atty. Elayda] can talk to them but obviously the [spouses Aranda] did not appear and Mrs. Miano did not bother to call [Atty. Elayda];
13. That [Atty. Elayda] was not at fault that he was not able to file the necessary pleadings in court because the [spouses Aranda] did not get in touch with him;
14. That [Atty. Elayda] cannot contact the [spouses Aranda] for the latter failed to give their contact number to [Atty. Elayda] nor did the [spouses Aranda] go to his office to leave their contact number;
14. That the [spouses Aranda] were negligent in their “I don’t care attitude” towards their case and for this reason that they alone should be blamed for what happened to their case x x x.”
x x x.
In Abay v. Montesino,[10] this Court held:
The legal profession is invested with public trust. Its goal is to render public service and secure justice for those who seek its aid. Thus, the practice of law is considered a privilege, not a right, bestowed by the State on those who show that they possess and continue to possess the legal qualifications required for the conferment of such privilege.
Verily, lawyers are expected to maintain at all times a high standard of legal proficiency and of morality – which includes honesty, integrity and fair dealing. They must perform their four-fold duty to society, the legal profession, the courts and their clients in accordance with the values and norms of the legal profession, as embodied in the Code of Professional Responsibility. Any conduct found wanting in these considerations, whether in their professional or private capacity, shall subject them to disciplinary action. In the present case, the failure of respondent to file the appellant’s brief was a clear violation of his professional duty to his client.[11]
The Canons of the Code of Professional Responsibility provide:
CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
x x x x
Rule 18.02 – A lawyer shall not handle any legal matter without adequate preparation.
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.
Rule 18.04 – A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client’s request for information.
CANON 19 – A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW.
From the foregoing, it is clear that Atty. Elayda is duty bound to uphold and safeguard the interests of his clients. He should be conscientious, competent and diligent in handling his clients’ cases. Atty. Elayda should give adequate attention, care, and time to all the cases he is handling. As the spouses Aranda’s counsel, Atty. Elayda is expected to monitor the progress of said spouses’ case and is obligated to exert all efforts to present every remedy or defense authorized by law to protect the cause espoused by the spouses Aranda.
Regrettably, Atty. Elayda failed in all these. Atty. Elayda even admitted that the spouses Aranda never knew of the scheduled hearings because said spouses never came to him and that he did not know the spouses’ whereabouts. While it is true that communication is a shared responsibility between a counsel and his clients, it is the counsel’s primary duty to inform his clients of the status of their case and the orders which have been issued by the court. He cannot simply wait for his clients to make an inquiry about the developments in their case. Close coordination between counsel and client is necessary for them to adequately prepare for the case, as well as to effectively monitor the progress of the case. Besides, it is elementary procedure for a lawyer and his clients to exchange contact details at the initial stages in order to have constant communication with each other. Again, Atty. Elayda’s excuse that he did not have the spouses Aranda’s contact number and that he did not know their address is simply unacceptable.
Furthermore, this Court will not countenance Atty. Elayda’s explanation that he cannot be faulted for missing the February 14, 2006 hearing of the spouses Aranda’s case. The Court quotes with approval the disquisition of Investigating Commissioner Pizarras:
Moreover, his defense that he cannot be faulted for what had happened during the hearing on February 14, 2006 because he was just at the other branch of the RTC for another case and left a message with the court stenographer to just call him when [the spouses Aranda] come, is lame, to say the least. In the first place, the counsel should not be at another hearing when he knew very well that he has a scheduled hearing for the [spouses Aranda’s] case at the same time. His attendance at the hearing should not be made to depend on the whether [the spouses Aranda] will come or not. The Order submitting the decision was given at the instance of the other party’s counsel mainly because of his absence there. Again, as alleged by the [the spouses Aranda] and as admitted by [Atty. Elayda] himself, he did not take the necessary remedial measure in order to ask that said Order be set aside.[12]
It is undisputed that Atty. Elayda did not act upon the RTC order submitting the spouses Aranda’s case for decision. Thus, a judgment was rendered against the spouses Aranda for a sum of money. Notice of said judgment was received by Atty. Elayda who again did not file any notice of appeal or motion for reconsideration and thus, the judgment became final and executory. Atty. Elayda did not also inform the spouses Aranda of the outcome of the case. The spouses Aranda came to know of the adverse RTC judgment, which by then had already become final and executory, only when a writ of execution was issued and subsequently implemented by the sheriff.
Evidently, Atty. Elayda was remiss in his duties and responsibilities as a member of the legal profession. His conduct shows that he not only failed to exercise due diligence in handling his clients’ case but in fact abandoned his clients’ cause. He proved himself unworthy of the trust reposed on him by his helpless clients. Moreover, Atty. Elayda owes fealty, not only to his clients, but also to the Court of which he is an officer.[13]
On a final note, it must be stressed that whenever a lawyer accepts a case, it deserves his full attention, diligence, skill and competence, regardless of its importance and whether or not it is for a fee or free.[14] Verily, in Santiago v. Fojas,[15] the Court held:
Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. He must serve the client with competence and diligence, and champion the latter’s cause with wholehearted fidelity, care, and devotion. Elsewise stated, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his client’s rights, and the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied. This simply means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession.[16]
WHEREFORE, the resolution of the IBP Board of Governors approving and adopting the Decision of the Investigating Commissioner is hereby AFFIRMED. Accordingly, respondent ATTY. EMMANUEL F. ELAYDA is hereby SUSPENDED from the practice of law for a period of SIX (6) MONTHS, with a stern warning that a repetition of the same or a similar act will be dealt with more severely.
Let a copy of this Decision be attached to Atty. Elayda’s personal record with the Office of the Bar Confidant and be furnished to all chapters of the Integrated Bar of the Philippines and to all the courts in the country for their information and guidance.
SO ORDERED.
Search warrant; nature and limitations.
G.R. No. 174570
ROMER SY TAN vs. SY TIONG GUE, FELICIDAD CHAN SY, SY CHIM, SY TIONG SAN, SY YU BUN, SY YU SHIONG, SY YU SAN, and BRYAN SY LIM, G.R. No. 174570, December 15, 2010
R E S O L U T I O N
PERALTA, J.:
On February 17, 2010, this Court rendered a Decision[1] in G.R. No. 174570 entitled Romer Sy Tan v. Sy Tiong Gue, et al., the decretal portion of which reads, as follows:
WHEREFORE, premises considered, the petition is GRANTED. The Decision and Resolution dated December 29, 2005 and August 18, 2006, respectively, of the Court of Appeals in CA-G.R. SP No. 81389 are REVERSED and SET ASIDE. The Orders of the RTC dated September 1, 2003 and October 28, 2003 are REINSTATED. The validity of Search Warrant Nos. 03-3611 and 03-3612 is SUSTAINED.
On March 22, 2010, respondents filed a Motion for Reconsideration[2] wherein respondents informed this Court, albeit belatedly, that the Regional Trial Court (RTC) granted their motion for the withdrawal of the Information filed in Criminal Case No. 06-241375. As such, respondents prayed that the decision be reconsidered and set aside and that the quashal of the subject search warrants be rendered moot and academic on the basis of the dismissal of the criminal case.
In his Comment[3] dated July 7, 2010, petitioner maintains that the motion is a mere reiteration of what respondents have previously alleged in their Comment and which have been passed upon by this Court in the subject decision. Petitioner alleges that he also filed with the Office of the City Prosecutor of Manila a Complaint for Qualified Theft against the respondents based on the same incidents and that should the Information for Qualified Theft be filed with the proper court, the items seized by virtue of the subject search warrants will be used as evidence therein.
On August 6, 2010, respondents filed their Reply.
On September 8, 2010, this Court issued a Resolution[4] wherein respondents were required to submit a certified true copy of the Order of the RTC dated November 14, 2008, which granted their motion to withdraw the information.
On October 22, 2010, respondents complied with the Court’s directive and submitted a certified true copy of the Order.[5]
In granting the motion to withdraw the Information, the RTC took into consideration the Amended Decision of the Court of Appeals (CA) in CA-G.R. SP No. 90368 dated August 29, 2006, which affirmed the findings of the City Prosecutor of Manila and the Secretary of Justice that the elements of Robbery, i.e., unlawful taking with intent to gain, with force and intimidation, were absent. Thus, there was lack of probable cause, warranting the withdrawal of the Information.[6] The RTC also considered that the said pronouncements of the CA were affirmed by no less than this Court in G.R. No. 177829 in the Resolution[7] dated November 12, 2007.
Accordingly, the RTC granted respondents’ motion to withdraw the information without prejudice, the dispositive portion of which reads:
WHEREFORE, the motion to withdraw information is hereby GRANTED and the case is DISMISSED without prejudice.
SO ORDERED.
Consequently, in view of the withdrawal of the Information for Robbery, the quashal of the subject search warrants and the determination of the issue of whether or not there was probable cause warranting the issuance by the RTC of the said search warrants for respondents’ alleged acts of robbery has been rendered moot and academic. Verily, there is no more reason to further delve into the propriety of the quashal of the search warrants as it has no more practical legal effect.[8]
Furthermore, even if an Information for Qualified Theft be later filed on the basis of the same incident subject matter of the dismissed case of robbery, petitioner cannot include the seized items as part of the evidence therein. Contrary to petitioner’s contention, he cannot use the items seized as evidence in any other offense except in that in which the subject search warrants were issued. Section 4, Rule 126 of the Revised Rules of Court provides:
Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and things to be seized which may be anywhere in the Philippines.
Thus, a search warrant may be issued only if there is probable cause in connection with only one specific offense alleged in an application on the basis of the applicant’s personal knowledge and his or her witnesses. Petitioner cannot, therefore, utilize the evidence seized by virtue of the search warrants issued in connection with the case of Robbery in a separate case of Qualified Theft, even if both cases emanated from the same incident.
Moreover, considering that the withdrawal of the Information was based on the findings of the CA, as affirmed by this Court, that there was no probable cause to indict respondents for the crime of Robbery absent the essential element of unlawful taking, which is likewise an essential element for the crime of Qualified Theft, all offenses which are necessarily included in the crime of Robbery can no longer be filed, much more, prosper.
Based on the foregoing, the Court resolves to Grant the motion.
WHEREFORE, premises considered, the Motion for Reconsideration filed by the respondents is GRANTED. The Decision of this Court dated February 17, 2010 is RECONSIDERED and SET ASIDE. The petition filed by Romer Sy Tan is DENIED for being MOOT and ACADEMIC.
SO ORDERED.
ROMER SY TAN vs. SY TIONG GUE, FELICIDAD CHAN SY, SY CHIM, SY TIONG SAN, SY YU BUN, SY YU SHIONG, SY YU SAN, and BRYAN SY LIM, G.R. No. 174570, December 15, 2010
R E S O L U T I O N
PERALTA, J.:
On February 17, 2010, this Court rendered a Decision[1] in G.R. No. 174570 entitled Romer Sy Tan v. Sy Tiong Gue, et al., the decretal portion of which reads, as follows:
WHEREFORE, premises considered, the petition is GRANTED. The Decision and Resolution dated December 29, 2005 and August 18, 2006, respectively, of the Court of Appeals in CA-G.R. SP No. 81389 are REVERSED and SET ASIDE. The Orders of the RTC dated September 1, 2003 and October 28, 2003 are REINSTATED. The validity of Search Warrant Nos. 03-3611 and 03-3612 is SUSTAINED.
On March 22, 2010, respondents filed a Motion for Reconsideration[2] wherein respondents informed this Court, albeit belatedly, that the Regional Trial Court (RTC) granted their motion for the withdrawal of the Information filed in Criminal Case No. 06-241375. As such, respondents prayed that the decision be reconsidered and set aside and that the quashal of the subject search warrants be rendered moot and academic on the basis of the dismissal of the criminal case.
In his Comment[3] dated July 7, 2010, petitioner maintains that the motion is a mere reiteration of what respondents have previously alleged in their Comment and which have been passed upon by this Court in the subject decision. Petitioner alleges that he also filed with the Office of the City Prosecutor of Manila a Complaint for Qualified Theft against the respondents based on the same incidents and that should the Information for Qualified Theft be filed with the proper court, the items seized by virtue of the subject search warrants will be used as evidence therein.
On August 6, 2010, respondents filed their Reply.
On September 8, 2010, this Court issued a Resolution[4] wherein respondents were required to submit a certified true copy of the Order of the RTC dated November 14, 2008, which granted their motion to withdraw the information.
On October 22, 2010, respondents complied with the Court’s directive and submitted a certified true copy of the Order.[5]
In granting the motion to withdraw the Information, the RTC took into consideration the Amended Decision of the Court of Appeals (CA) in CA-G.R. SP No. 90368 dated August 29, 2006, which affirmed the findings of the City Prosecutor of Manila and the Secretary of Justice that the elements of Robbery, i.e., unlawful taking with intent to gain, with force and intimidation, were absent. Thus, there was lack of probable cause, warranting the withdrawal of the Information.[6] The RTC also considered that the said pronouncements of the CA were affirmed by no less than this Court in G.R. No. 177829 in the Resolution[7] dated November 12, 2007.
Accordingly, the RTC granted respondents’ motion to withdraw the information without prejudice, the dispositive portion of which reads:
WHEREFORE, the motion to withdraw information is hereby GRANTED and the case is DISMISSED without prejudice.
SO ORDERED.
Consequently, in view of the withdrawal of the Information for Robbery, the quashal of the subject search warrants and the determination of the issue of whether or not there was probable cause warranting the issuance by the RTC of the said search warrants for respondents’ alleged acts of robbery has been rendered moot and academic. Verily, there is no more reason to further delve into the propriety of the quashal of the search warrants as it has no more practical legal effect.[8]
Furthermore, even if an Information for Qualified Theft be later filed on the basis of the same incident subject matter of the dismissed case of robbery, petitioner cannot include the seized items as part of the evidence therein. Contrary to petitioner’s contention, he cannot use the items seized as evidence in any other offense except in that in which the subject search warrants were issued. Section 4, Rule 126 of the Revised Rules of Court provides:
Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and things to be seized which may be anywhere in the Philippines.
Thus, a search warrant may be issued only if there is probable cause in connection with only one specific offense alleged in an application on the basis of the applicant’s personal knowledge and his or her witnesses. Petitioner cannot, therefore, utilize the evidence seized by virtue of the search warrants issued in connection with the case of Robbery in a separate case of Qualified Theft, even if both cases emanated from the same incident.
Moreover, considering that the withdrawal of the Information was based on the findings of the CA, as affirmed by this Court, that there was no probable cause to indict respondents for the crime of Robbery absent the essential element of unlawful taking, which is likewise an essential element for the crime of Qualified Theft, all offenses which are necessarily included in the crime of Robbery can no longer be filed, much more, prosper.
Based on the foregoing, the Court resolves to Grant the motion.
WHEREFORE, premises considered, the Motion for Reconsideration filed by the respondents is GRANTED. The Decision of this Court dated February 17, 2010 is RECONSIDERED and SET ASIDE. The petition filed by Romer Sy Tan is DENIED for being MOOT and ACADEMIC.
SO ORDERED.
Thursday, December 23, 2010
Politics in the Integrated Bar of the Philippines; the Court disciplines the Bar leaders.
A.M. No. 09-5-2-SC
IN VIEW OF THE IMPORTANCE OF THIS DECISION OF THE SUPREME COURT, IN RE: A.M. NO. 09-5-2-SC, DEC. 14, 2010, I AM REPRODUCING IT IN ITS ENTIRETY, FOR LEGAL RESEARCH PURPOSES OF MY READERS.
EN BANC
A.M. No. 09-5-2-SC
Dec. 14, 2010
IN THE MATTER OF THE BREWING
CONTROVERSIES IN THE ELECTION
IN THE INTEGRATED BAR OF THE
PHILIPPINES,
R E S O L U T I O N
CORONA, C.J.:
This resolves the above matter involving the leadership controversy at the Integrated Bar of the Philippines (IBP) and the administrative case that was filed against some of the high-ranking officers of the IBP on account thereof.
I. Antecedents
The Court in an En Banc Resolution dated June 2, 2009 created a Special (Investigating) Committee[1] to look into the “brewing controversies in the IBP elections, specifically in the elections of Vice-President for the Greater Manila Region and Executive Vice-President of the IBP itself xxx and any other election controversy involving other chapters of the IBP, if any”, that includes as well the election of the Governors for Western Mindanao and Western Visayas.
Consequently, the Special Committee called the IBP officers involved to a preliminary conference on June 10, 2009. With respect thereto, Atty. Rogelio A. Vinluan then submitted a Preliminary Conference Brief on the same day. During the conference it was determined that the investigation would focus on the following issues or controversies:
1. What is the correct interpretation of Section 31, Article V of the IBP By-Laws which provides:
“SEC. 31. Membership. – The membership (of Delegates) shall consist of all the Chapter Presidents and, in the case of Chapters entitled to more than one Delegate each, the Vice-Presidents of the Chapters and such additional Delegates as the Chapters are entitled to. Unless the Vice-President is already a Delegate, he shall be an alternate Delegate. Additional Delegates and alternates shall in proper cases be elected by the Board of Officers of the Chapter. Members of the Board of Governors who are not Delegates shall be members ex officio of the House, without the right to vote.”
2. Who was validly elected Governor for the Greater Manila Region?
3. Who was validly elected Governor for Western Visayas Region?
4. Who was validly elected Governor for Western Mindanao Region?
5. Who was validly elected IBP Executive Vice President for the next term?
6. What is the liability, if any, of respondent Atty. Rogelio A. Vinluan under the administrative complaint for “grave professional misconduct, violation of attorney’s oath, and acts inimical to the IBP” filed against him by Attys. Marcial Magsino, Manuel Maramba and Nasser Marohomsalic?
Meanwhile, a Supplemental Complaint dated June 11, 2009 was received from Attys. Magsino, Maramba and Marohomsalic regarding the earlier complaint that they filed last May 21, 2009 against Atty. Vinluan.
As such, then IBP President Feliciano M. Bautista and then Executive Vice President (EVP) Vinluan agreed to submit their respective position papers on the above issues and controversies. Also, Atty. Vinluan was required to file his answer to the administrative complaint against him.
A Position Paper dated June 15, 2009 was then received from Atty. Vinluan. Attys. Elpidio G. Soriano, III and Erwin M. Fortunato also filed their Position Papers both dated June 15, 2009. It appears that an earlier Position Paper also dated June 15, 2009 was submitted by Atty. Benjamin B. Lanto.
For their part, Attys. Bautista, Maramba and Magsino filed their Position Paper dated June 16, 2009. Incidentally, in a Manifestation likewise dated June 16, 2009 Attys. Bautista, Maramba and Marcial M. Magsino submitted the same paper but already bearing the signature of Atty. Bautista.
Atty. Nasser A. Marohomsalic submitted his Position Paper dated June 17, 2009. The Special Committee, in the course of its investigation, further received a letter dated June 22, 2009 from Atty. Alex L. Macalawi, President of the IBP Lanao del Sur Chapter.
As to the administrative case filed against him, Atty. Vinluan, as respondent, filed his Comment dated June 15, 2009. In turn, Attys. Magsino, Maramba and Marohomsalic, as complainants, submitted their Reply dated June 23, 2009.
The Special Committee then submitted a Report and Recommendation dated July 9, 2009 the dispositive portion of which read as follows:
A. That to avoid further controversy regarding its proper interpretation and implementation, Sec. 31, Article V, of the By-Laws should be amended as follows (suggested amendments are in bold print):
“SEC. 31. Membership. – The membership of the House of Delegates shall consist of all the Chapter Presidents and in the case of Chapters entitled to mo(r)e than on(e) Delegate each, the Vice President of the Chapters and such additional Delegates as the Chapters are entitled to. Unless the Vice President is already (a) delegate, he shall be an alternate Delegate. Additional Delegates and their respective alternates shall be elected from, and by, the Board of Officers of the Chapter. If the Delegate chosen is incapacitated, or disqualified, or resigns, or refuses to serve, and there are enough members of the Board to be elected as Delegates, then the Board of Officers shall elect the additional delegates and alternates from the general membership of the Chapter, and his corresponding alternate shall take his place.”
B. That to avoid any ambiguity as to how the President shall preside and vote in meetings of the House of Delegates, paragraph (g), Sec. 33, Article V of the By-Laws should be amended as follows:
“(g) In all meetings and deliberations of the House, whether in annual or special convention, the President shall preside, or the Executive Vice President, if the President is absent or incapacitated, but neither of them shall vote except to break a tie.”
C. Similarly, Sec. 42, Article VI of the By-Laws, on meetings of the Board of Governors, should be amended to read as follows:
“Sec. 42. Meetings. – The Board shall meet regularly once a month, on such date and such time and place as it shall designate. Special meetings may be called by the President, and shall be called by him upon the written request of five (5) members of the Board. The President shall not vote except to break a tie in the voting. When for any reason, the President cannot preside on account of his absence, incapacity, or refusal to call a meeting, the Executive Vice President shall preside, there being a quorum to transact business, but he may not vote except to break a tie.
D. That Sec. 43, Article VI of the By-Laws, on the procedure for approving a resolution by the Board of Governors without a meeting, should be amended by adding the following exception thereto so that the procedure may not be abused in connection with any election in the IBP:
“This provision shall not apply when the Board shall hold an election or hear and decide an election protest.”
E. That the provision for the strict implementation of the rotation rule among the Chapters in the Regions for the election of the Governor for the regions, (as ordered by this Honorable Court in Bar Matter No. 586, May 14, 1991) should be incorporated in Sec. 39, Article VI of the By-Laws, as follows:
“Sec. 39. Nomination and election of the Governors. – At least one (1) month before the national convention the delegates from each region shall elect the Governor for their region, who shall be chosen by rotation which is mandatory and shall be strictly implemented among the Chapters in the region. When a Chapter waives its turn in the rotation order, its place shall redound to the next Chapter in the line. Nevertheless, the former may reclaim its right to the Governorship at any time before the rotation is completed; otherwise, it will have to wait for its turn in the next round, in the same place that it had in the round completed.
F. That in view of the fact that the IBP no longer elects its President, because the Executive Vice President automatically succeeds the President at the end of his term, Sec. 47, Article VII of the By-Laws should be amended by deleting the provision for the election of the President. Moreover, for the strict implementation of the rotation rule, the Committee recommends that there should be a sanction for its violation, thus:
“Sec. 47. National Officers. – The Integrated Bar of the Philippines shall have a President, an Executive Vice President, and nine (9) regional Governors. The Executive Vice President shall be elected on a strict rotation basis by the Board of Governors from among themselves, by the vote of at least five (5) Governors. 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.
“The violation of the rotation rule in any election shall be penalized by annulment of the election and disqualification of the offender from election or appointment to any office in the IBP.”
G. That Atty. Manuel M. Maramba should be declared the duly elected Governor of the Greater Manila Region for the 2009-2011 term.
H. That Atty. Erwin Fortunato of the Romblon Chapter should be declared the duly elected Governor of the Western Visayas Region for the 2009-2011 term.
I. That a special election should be held in the Western Mindanao Region, within fifteen (15) days from notice, to elect the Governor of that region for the 2009-2011 term. In accordance with the rotation rule, only the six (6) Chapters in the region that have not yet been elected to the Board of Governors, namely: Zamboanga Sibugay, Zamboanga del Norte, Za(m)boanga del Sur, Lanao del Norte, Misamis Occidental, and Maguindanao-Cotabato City, shall participate in the election.
J. That, thereafter, a special election should also be held by the Board of Governors to elect the Executive Vice President for the 2009-2011 term with strict observance of the rotation rule. Inasmuch as for the past nine (9) terms, i.e., since the 1991-1993 term, the nominees of the Western Visayas and Eastern Mindanao Regions have not yet been elected Executive Vice President of the IBP, the special election shall choose only between the nominees of these two (2) regions who shall become the Executive Vice President for the 2009-2011 term, in accordance with the strict rotation rule.
K. That the high-handed and divisive tactics of Atty. Rogelio A. Vinluan and his group of Governors, Abelardo Estrada, Bonifacio Barandon, Jr., Evergisto Escalon, and Raymund Mercado, which disrupted the peaceful and orderly flow of business in the IBP, caused chaos in the National Office, bitter disagreements, and ill-feelings, and almost disintegrated the Integrated Bar, constituted grave professional misconduct which should be appropriately sanctioned to discourage its repetition in the future.
II. Findings of the Special Committee
In its Report and Recommendation dated July 9, 2009, the Special Committee disclosed when it was discussing the Board of Officers of each chapter that:
The government of a Chapter is vested in its Board of Officers composed of nine (9) officers, namely: the President, Vice-President, Secretary, Treasurer, and five (5) Directors who shall be elected by the members of the Chapter at the biennial meeting on the last Saturday of February, and shall hold office for a term of two (2) years from the first day of April following their election and until their successors shall have been duly chosen and qualified. For the 2009-2011 term, the election of Chapter officers was held on February 28, 2009.
In 1983 up to 1995, the Quezon City Chapter elected the usual nine (9) officers to its Board of Officers and they were all delegates to the House of Delegates. Beginning with the 1997-1999 term, when it added a Public Relations Officer (P.R.O.) and Auditor to its Board of Officers, the number of delegates allotted to the Chapter was also increased to eleven (11) like the membership in its Board of Officers, pursuant to a reapportionment of delegates by the Board of Governors under Sec. 30, Art. V of the By-Laws.
Up to the 2007-2009 term, all the officers of the QC Chapter were also the Chapter’s delegates to the House of Delegates. Atty. Victoria Loanzon who has been an officer of the Chapter in various capacities since 2003, like her fellow officers in the Board, automatically became a delegate since 2003 up to this time.
For the 2009-2011 term, the Board of Officers of the IBP-QC Chapter that assumed office on April 1, 2009, is composed of six (6) officers and (5) directors, namely:
President - - - - - - - - - - Tranquil Salvador III
Vice President - - - - - - Jonas Cabochan
Secretary - - - - - - - - - - Christian Fernandez
Treasurer - - - - - - - - - - Victoria Loanzon
Auditor - - - - - - - - - - - Ginger Anne Castillo
P.R.O. - - - - - - - - - - - - Ernesto Tabujara III
Director - - - - - - - - - - - Annalou Nachura
Director - - - - - - - - - - - Melody Sampaga
Director - - - - - - - - - - - Francois Rivera
Director - - - - - - - - - - - Joseph Cerezo
Director - - - - - - - - - - - Marita Iris Laqui
It is important to be an officer of one’s Chapter and a delegate to the House of Delegates, because a delegate gets to elect the Governor for the Region (which must rotate among the Chapters in the region). The Governor of the Region becomes a member of the Board of Governors, and gets to elect, or be elected, as the next IBP Executive Vice President who automatically becomes President for the next succeeding term (which must also rotate among the Regions).[2]
The Special Committee then pointed out that with respect to the IBP Board of Governors this consists of “nine (9) Governors from the nine (9) Regions. One (1) Governor for each Region shall be elected by the members of the House of Delegates from that region only. The Governors, the President and the Executive Vice-President shall hold office for a term of two (2) years from July 1 immediately following their election, up to June 30 of their second year in office and until their successors shall have been duly chosen and qualified.” It was further added by the Committee that:
At least one (1) month before the national convention, the delegates from each Region shall elect the Governor for their region. The IBP By-Laws provide that “starting in 1993-1995, the principle on rotation shall be strictly implemented so that all prior elections for Governor in the region shall be reckoned with or considered in determining who should be Governor to be selected from the different chapters to represent the region in the Board of Governors. Hence, the governorship of the region shall rotate among the chapters in the region.
The Governors-elect shall, by a vote of at least five (5), choose an Executive Vice-President, x x x either from among themselves or from other members of the Integrated Bar. The Executive Vice-President shall automatically become President for the next succeeding term. The Presidency shall rotate among the nine (9) Regions.[3]
According to the Committee, the “rotation of the position of Governor of a region among the Chapters was ordered by the Supreme Court in its Resolution dated May 14, 1991 in Bar Matter No. 586 (Clarification Re: Bar Matter No. 491, Atty. Romulo T. Capulong petitioner)”. With respect thereto, it was revealed that:
Pursuant to the principle of rotation, the governorship of a region shall rotate once in as many terms as the number of chapters there are in the region, to give every chapter a chance to represent the region in the Board of Governors. Thus, in a region composed of 5 chapters, each chapter is entitled to the governorship once in every 5 terms, or once every ten (10) years, since a term is two (2) years.
The record of the National IBP Secretariat shows that during the past five (5) terms, from 1999 up to 2009, the GMR (Greater Manila Region) governorship was occupied by the five (5) chapters of the region as follows:
1999-2001 ----- Jose P. Icaonapo ------------ Manila III
2001-2003 ----- Santos V. Catubay, Jr. ---- QuezonCity
2003-2005 ----- Rosario Setias-Reyes ------ Manila II
2005-2007 ----- Alicia A. Risos-Vidal ------ Manila I
2007-2009 ----- Marcial M. Magsino ------- Manila IV
In the next round, which starts with the 2009-2011 term, the same order of rotation should be followed by the five (5) chapters, i.e., Manila III shall begin the round, to be followed by Quezon City for 2011-2013 term, Manila for the 2013-2015 term, Manila I for the 2015-2017 term, and Manila IV for the 2017-2019 term.
In the Western Visayas Region which is composed of ten (10) chapters, each chapter is entitled to represent the governorship of the region once every ten (10) terms. The first chapter to occupy the governorship, must wait for the nine (9) other chapters to serve their respective terms, before it may have its turn again as Governor of the region.
The same rule applies to the Western Mindanao Region which is composed of twelve (12) chapters.
On April 25, 2009, the election of Governors for the nine (9) IBP regions proceeded as scheduled, presided over by their respective outgoing Governor.[4]
It was then cited by the Special Committee that “Sec. 47, Art. VII of the By-Laws, as amended by Bar Matter 491, Oct. 6, 1989, provides that the Executive Vice President shall be chosen by the Board of Governors from among the nine (9) regional governors. The Executive Vice President shall automatically become President for the next succeeding term. The Presidency shall rotate among the nine Regions.” Further, the Committee averred that:
The list of national presidents furnished the Special Committee by the IBP National Secretariat, shows that the governors of the following regions were President of the IBP during the past nine (9) terms (1991-2009):
Numeriano Tanopo, Jr. (Pangasinan) --- Central Luzon --- 1991-1993
Mervin G. Encanto (Quezon City) ------ Manila ------------ 1993-1995
Raul R. Angangco (Makati) -------------- Southern Luzon - 1995-1997
Jose Aguila Grapilon (Biliran) ----------- Eastern Visayas – 1997-1999
Arthur D. Lim (Zambasulta) ------------- Western Mindanao-1999-2001
Teofilo S. Pilando, Jr. (Kalinga-Apayao)-Northern Luzon – 2001-2003
Jose Anselmo I. Cadiz (Camarines Sur) –Bicolandia -------- 2003-2005
Jose Anselmo I. Cadiz (Camarines Sur) –Bicolandia ----2005-Aug 2006
Jose Vicente B. Salazar (Albay) ---------- Bicolandia --- Aug. 2006-2007
Feliciano M. Bautista (Pangasinan) ------ Central Luzon ---- 2007-2009
Only the governors of the Western Visayas and Eastern Mindanao regions have not yet had their turn as Executive Vice President cum next IBP President, while Central Luzon and Bicolandia have had two (2) terms already.
Therefore, either the governor of the Western Visayas Region, or the governor of the Eastern Mindanao Region should be elected as Executive Vice-President for the 2009-2011 term. The one who is not chosen for this term, shall have his turn in the next (2011-2013) term. Afterwards, another rotation shall commence with Greater Manila in the lead, followed by Southern Luzon, Eastern Visayas, Western Mindanao, Northern Luzon, Bicolandia, Central Luzon, and either Western Visayas or Eastern Mindanao at the end of the round.[5]
The Committee then disclosed that the controversies involved herein and should be resolved are the following: (I) the dispute concerning additional delegates of the QC Chapter to the House of Delegates; (II) the election of the Governor for the Greater Manila Region (GMR); (III) the election of Governor for the Western Visayas Region; (IV) the election of Governor for the Western Mindanao Region; (V) the resolution of the election protests; (VI) the election of the IBP Executive Vice President for the 2009-2011 term; and, (VII) the administrative complaint against EVP Rogelio Vinluan.
In addressing the above controversies, the Committee arrived at the following findings and conclusions:
I. The silence of Sec. 31, Art. V of the IBP By-Laws on who may be elected as additional delegates and alternates by the remaining members of the Board of Officers of the Chapter when the Chapter is entitled to more than two (2) delegates to the House of Delegates, is the root cause of the conflicting resolutions of the Bautista and Vinluan factions on the proper interpretation of the aforementioned provision of the By-Laws.
According to the Resolution No. XVIII-2009 dated April 17, 2009 of the Bautista Group, “the additional delegate/s shall be elected by the Board of Officers of the Chapter only from among the remaining duly elected officers and members of the Board, in consideration of their mandate from the general membership.
According to the Resolution No. XVIII-2009 (Special-23 April 2009) of the Vinluan Group, “the election of the additional delegate/s for the Chapters entitled to more than two (2) delegates shall be elected by the Board of Officers of the Chapter from among the general membership who are in good standing to include the remaining duly elected officers and members of the Board.”
The Committee finds the qualification introduced by Resolution No. XVIII-2009 – “that the additional delegate/s and alternates must be elected from among the remaining officers of the Chapter” – to be consistent with the precedent set by Section 31 itself in appointing members of the Board of Officers, namely, (a) the president of the Chapter as the delegate, and the vice president as the alternate, or second, delegate to the House of Delegates, when the Chapter is entitled to two (2) delegates. There is a manifest intention in Sec. 31, Art. V of the By-Laws to reserve membership in the House of Delegates (which is the deliberative body of the IBP) for the elected officers of the Chapter since they have already received the mandate of the general membership of the Chapter.
For the past four (4) terms (2003-2011), Atty. Loanzon has been an officer and delegate of the QC Chapter to the House of Delegates, until the Vinluan Group introduced its own interpretation of the aforementioned provision of the By-Laws and elected non-officers of the Chapter as delegates to the House of Delegates in lieu of herself and Atty. Laqui.
We find the Vinluan Group’s interpretation of Sec. 31, Art. V, of the By-Laws in Resolution No. XVIII-2009 (Special – 23 April 2009) to be in error and devoid of rational and historical bases.
II. Attys. Victoria Loanzon and Marite Laqui were properly recognized as delegates of the QC Chapter by the Presiding Officer, GMR Governor Marcial Magsino, during the election on April 25, 2009 of the Governor for the Greater Manila Region, in accordance with the guideline in Resolution No. XVIII-2009.
The argument of the QC-Chapter President Tranquil Salvador, that Attys. Loanzon and Laqui were not delegates because they were not elected by the QC-Board of Officers, is not well taken.
Sec. 31, Art. V of the By-Laws provides that:
“Additional Delegates and alternates shall in proper cases be elected by the Board of Officers of the Chapter.”
The QC Chapter is not a “proper case” for the election of additional delegates by the Board of Officers because the Chapter is entitled to the same number of delegates (11) to the House, as the number of officers in its Board of Officers. Its officers are ipso facto the Chapter’s delegates to the House. There is no need for the Board of Officers to conduct an election.
A “proper case” for the election of additional delegates and alternates by the Board of Officers occurs when the number of additional delegates and alternates for the Chapter is less than the members of the Board of Officers, for, then, the Board of Officers must select, and elect, who among themselves should be the additional delegate/s and alternates of the Chapter to the House of Delegates. That has never been the case of the QC Chapter.
III. Atty. Manuel Maramba (Manila III Chapter) was validly elected as GMR Governor for the 2009-2011 term, not only because he outvoted his rival, Atty. Elpidio Soriano (Quezon City Chapter), but also because under the principle of rotation of the governorship (Bar Matter No. 586, May 14, 1991) since the five (5) chapters of the Greater Manila Region have all represented the region in the Board of Governors during the past five (5) terms, in the following order:
1999-2001 -------- Manila III -------- Jose P. Icaonapo
2001-2003 -------- Quezon City ----- Santos V. Catubay, Jr.
2003-2005 -------- Manila II ---------- Rosario Setias-Reyes
2005-2007 -------- Manila I ----------- Alicia A. Risos-Vidal
2007-2009 -------- Manila IV --------- Marcial M. Magsino
it is now the turn of the representative of the Manila III Chapter to sit again in the Board of Governors for the next round which begins in the 2009-2011 term. The Manila III representative, Atty. Manuel M. Maramba, has every right to the position not only because he won the election with 13 votes in his favor against 12 for Atty. Soriano, but also because his election follows the rotation rule decreed by the Supreme Court.
On the other hand, the election of Atty. Soriano (QC Chapter) in the special election that was presided over by EVP Vinluan on May 4, 2009, was a nullity on three (3) grounds: First, because Atty. Soriano already lost the election on April 25, 2009. Second, the special election conducted by the Vinluan Group on May 4, 2(00)8 was illegal because it was not called nor presided over by the regional Governor. Third, Atty. Soriano is disqualified to run for GMR Governor for the 2009-2011 term because his “election” as such would violate the rotation rule which the Supreme Court requires to be “strictly implemented”. Under the rotation rule, the GMR governorship for the 2009-2011 term belongs to the Manila III Chapter, not to the QC Chapter, whose turn will come two (2) years later, in 2011-2013 yet.
IV. Atty. Erwin Fortunato of the Romblon Chapter was duly elected as Governor for the Western Visayas Region for the 2009-2011 term, not only because he obtained the highest number of votes among the three (3) candidates for the position, but also because under the rotation rule, it is now the turn of the Romblon Chapter to represent the Western Visayas Region in the IBP Board of Governors.
The contention of the protestants, Attys. Cornelio Aldon (Antique Chapter) and Benjamin Ortega (Negros Occidental Chapter) that the rotation rule in Sections 37 and 39 of the IBP By-Laws is not mandatory but only directory, betrays their ignorance of the resolution of the Supreme Court in Bar Matter No. 586 dated May 16, 1991, ruling that “the principle on rotation shall be strictly implemented so that all prior elections for governor in the region shall be reckoned with or considered in determining who should be the governor to be selected from the different chapters to represent the region in the Board of Governors.”
V. Neither Atty. Nasser Marohomsalic nor Atty. Benjamin Lanto is qualified to be elected Governor of Western Mindanao Region. Sec. 39, Art. VI of the IBP By-Laws provides that: “Starting in 1993-1995, the principle of rotation in the position of governor among the different chapters to represent the region in the Board of Governors shall be strictly implemented.
Under Sec. 37, Art. VI of the By-Laws, the Governor of a region shall be elected by the members of the House of Delegates from that region only. Since the delegate of a Chapter to the House of Delegates is the President of the Chapter, not the Board of Officers, the nominee of the Chapter President, not the nominee of the Board of Officers, is the valid nominee for Governor of the Region.
However, under the rotation rule, it is not the Lanao del Sur Chapter that should represent the Western Mindanao Region in the Board of Governors for the 2009-2011 term. The record of the IBP National Secretariat shows that, starting in 1993-1995 when the strict implementation of the rotation rule began, the 12-chapter Western Mindanao Region has been represented in the Board of Governors by only six (6) Chapters, as follows:
1993-1995 ----- Lanao del Sur ------ Dimnatang T. Saro
1995-1997 ----- Cotabato ------------ George C. Jabido
1997-1999 ----- ZAMBASULTA -- Arthur D. Lim
1999-2001 ----- ZAMBASULTA -- Paulino R. Ersando
2001-2003 ----- North Cotabato --- Little Sarah A. Agdeppa
2003-2005 ----- Sultan Kudarat ---- Carlos L. Valdez, Jr.
2005-2007 ----- SOCSARGEN ----- Rogelio C. Garcia
2007-2009 ----- Sultan Kudarat ---- Carlos L. Valdez, Jr.
Therefore, pursuant to the strict rotation, the Lanao del Sur Chapter must wait for the six (6) other Chapters in the region (Zamboanga Sibugay, Zamboanga del Norte, Zamboanga del Sur, Lanao del Norte, Misamis Occidental, and Maguindanao-Cotabato City) to have their turn in the Board of Governors before Lanao del Sur may again represent the Western Mindanao Region in the Board of Governors.
Since both Attys. Nasser Marohomsalic and B(e)njamin Lanto belong to the Lanao del Sur Chapter, both of them are disqualified to be elected as Governor of the Western Mindanao Region for the 2009-2011 term. With respect to Atty. Benjamin Lanto, his nomination by the Board of Officers was not only invalid, but also lost credibility after three (3), out of the thirteen (13) signatories to his nomination, resigned from the Board of Officers, and six (6) others signed “authorizations” in favor of Atty. Macalawi authorizing him to nominate and elect the Governor for the Western Mindanao Region. That left only four (4) votes in favor of his nomination for Governor of the Western Mindanao Region.
VI. The elections for the IBP Executive Vice President separately held on May 9, 2009 by the Bautista and Vinluan Groups were null and void for lack of quorum. The presence of five (5) Governors-elect is needed to constitute a quorum of the 9-member Board of Governors-elect who shall elect the Executive Vice President.
As previously stated, there were two (2) simultaneous elections for the Executive Vice President for the 2009-2011 term – one was called and presided over by EVP Vinluan in the Board Room of the IBP National Office, while the other election for the same position was presided over by outgoing IBP Pres. Bautista in another room of the same building, at the same time, 9:00 A.M., on the same date, May 9, 2009.
Those present at the meeting of the Vinluan Group were:
1. Atty. Elpidio G. Soriano
2. Atty. Benjamin B. Lanto
3. Atty. Amador Tolentino, Jr., Governor-elect for Southern Luzon
4. Atty. Jose V. Cabrera, Governor-elect for Bicolandia
5. Atty. Erwin Fortunato, Governor-elect for Western Visayas
6. Atty. Roland B. Inting, Governor-elect for Eastern Visayas
Since both Attys. Soriano and Lanto were not validly elected as Governors respectively of the Greater Manila Region and the Western Mindanao Region, they were disqualified to sit in the incoming Board of Governors and participate in the election of the succeeding Executive Vice President. The remaining four (4) Governors-elect – Governors Tolentino, Cabrera, Fortunato, and Inting, did not constitute a quorum of the Board of Governors to conduct a valid election of the IBP Executive Vice President. The election of Atty. Elpidio G. Soriano as Executive Vice President by the Vinluan Group was invalid. Aside from lack of a quorum to conduct the elections, EVP Vinluan wrongly presided over the election. Thus, Atty. Soriano was not duly elected as Governor of the Greater Manila Region, hence, he is disqualified to sit in the Board of Governors.
Neither did the meeting of the Bautista Group fare any better, for those present were:
1. Atty. Milagros Fernan-Cayosa, Governor-elect for Northern
Luzon
2. Atty. Ferdinand Y. Miclat, Governor-elect for Central Luzon
3. Atty. Manuel M. Maramba, Governor-elect for Greater Manila
4. Atty. Roan Libarios, Governor-elect for Eastern Mindanao
5. Atty. Nasser Marohomsalic
Atty. Marohomsalic’s election as Governor for Western Mindanao was invalid for violating the rotation rule. The four (4) remaining governors-elect (Attys. Cayosa, Miclat, Maramba and Libarios) like those in the Vinluan Group, did not constitute a quorum to conduct the election of the IBP Executive Vice President for the current term. The election of Governor Roan Libarios as Executive Vice President by this group was therefore null and void.
Besides that flaw in his election, since the Eastern Visayas Region, represented by Governor Jose Aguila Grapilon of Biliran, had succeeded to the presidency in 1997-1999, its next turn will come after the eight (8) other regions shall have also served in the presidency. That will be after sixteen years, or, in 2015-2017 yet.
VII. The administrative complaint against EVP Rogelio A. Vinluan and his Group of Governors (Abelardo Estrada of Northern Luzon, Bonifacio Barandon of Bicolandia, Evergisto Escalon of Eastern Visayas, and Raymund Mercado of Western Visayas) is meritorious, for their conduct was fractious and high-handed, causing disunity and acrimonious disagreements in the IBP.
1. The request of the EVP Vinluan’s Group for a special meeting of the Board of Governors on April 23, 2009 – two (2) days before the scheduled election of the regional Governors on April 25, 2009 – when IBP Pres. Bautista was in Zamboanga on IBP business, and the other Governors had just returned to their respective regions to prepare for the April 25 election of the regional governors, was unreasonable.
The special meeting on April 23, 2009 which he himself presided over, violated Sec. 42, Art. VI of the By-Laws which provides that it is the President who shall call a special meeting, and it is also the President who shall preside over the meeting, not Atty. Vinluan (Sec. 50, Art. VII, By-Laws).
The proper recourse for the Vinluan Group, in view of President Bautista’s refusal to call a special meeting as requested by them, is found in Section 43, Art. VI of the By-Laws which provides that-
“The Board may take action, without a meeting, by resolution signed by at least five Governors provided that every member of the Board shall have been previously apprised of the contents of the resolution.”
But the Vinluan Group ignored that procedure. They held a special meeting on April 23, 2009, where they adopted Resolution No. XVIII-2009 (Special-23 April 2009) striking out as ultra vires the earlier Resolution No. XVIII-2009 passed in the regular monthly meeting of the Board of Governors on April 17, 2009. That meeting was illegal, hence, the resolution adopted therein was null and void.
2. The second special meeting held by the Vinluan Group on April 30, 2009 wherein they approved Resolution XVIII-2009 (Special-A-30 April 2009) resolving the election protests in the GMR, Western Visayas and Western Mindanao governors’ elections, with complete disregard for the protestees’ right to due process, was likewise illegal, hence, the Group’s resolution of the election protests was likewise null and void, and the new election of the GMR Governor which they set on May 4, 2009 was invalid.
3. The “Board Resolution” which was adopted and faxed to the Governors-elect on May 8, 2009, by the Vinluan Group, setting the election of the IBP Executive Vice President on May 9, 2009, at 9:00 A.M.; declaring Pres. Bautista “unfit to preside” over the election and “designating EVP Vinluan to preside over the election” in lieu of Pres. Bautista, was uncalled and unwarranted, and caused disunity and disorder in the IBP. It was in effect a coup to unseat Pres. Bautista before the end of his term, and prematurely install EVP Vinluan as president.
The actuations of Atty. Vinluan’s Group in defying the lawful authority of IBP President Bautista, due to Atty. Vinluan’s overweening desire to propel his fraternity brother, Atty. Elpidio G. Soriano, to the next presidency of the IBP, smacked of politicking, which is strongly condemned and strictly prohibited by the IBP By-Laws and the Bar Integration Rule.[6]
Again, it must be noted that while the pending administrative case against Atty. Vinluan and his co-respondents has not yet been resolved, Atty. Vinluan was not allowed to assume his position as President of the IBP for 2009-2011. Instead, the Supreme Court designated retired Supreme Court Associate Justice Santiago Kapunan as Officer-in-Charge of the IBP.
III. Rulings of the Court
The Court completely agrees with the recommendations of the Special Committee with respect to, among others, the following:
1. Declaring Atty. Manuel M. Maramba (Manila III Chapter) as the duly elected Governor of the Greater Manila Region for the 2009-2011 term[7]; and,
2. Declaring Atty. Erwin M. Fortunato (Romblon Chapter) as the duly elected Governor of the Western Visayas Region for the 2009-2011 term[8].
As far as the Court is concerned, there is no dispute that the election of Atty. Maramba was in order. During the election held last April 25, 2009 which was duly presided over by then outgoing Greater Manila Region Governor Marcial Magsino, it was Atty. Maramba who garnered the highest number of votes among the delegates compared to Atty. Soriano, 13 votes to 12 votes. However, instead of accepting the said defeat graciously, Atty. Soriano then filed an election protest on April 27, 2009 claiming that the said election was void because there were non-delegates, particularly Attys. Loanzon and Laqui of the Quezon City Chapter, who were allowed to vote. Consequently, Atty. Soriano got a favorable ruling from the group of Atty. Vinluan, as EVP, and former Governors Estrada (Northern Luzon), Barandon, Jr. (Bicolandia), Escalon (Eastern Visayas) and Mercado (Western Visayas) per Resolution No. XVIII-2009 (Special A-30 April 2009). This then resulted in the anomalous election of Atty. Soriano as Governor of the Greater Manila Region last May 4, 2009.
In addressing the said controversy, and as already discussed, the Committee concluded that “the Vinluan Group’s interpretation of Sec. 31, Art. V, of the By-Laws in Resolution No. XVIII-2009 (Special-23 April 2009) to be in error and devoid of rational and historical bases.” It was then pointed out that “(t)he argument of the QC-Chapter President Tranquil Salvador, (as well as by Atty. Soriano), that Attys. Loanzon and Laqui were not delegates because they were not elected by the QC-Board of Officers, is not well taken.” Likewise, the Committee considered the situation then involving the Quezon City Chapter as “not a ‘proper case’ for the election of additional delegates by the Board of Officers because the Chapter is entitled to the same number of delegates (11) to the House (of Delegates), as the number of officers in its Board of Officers. Its officers are ipso facto the Chapter’s delegates to the House. There is no need for the Board of Officers to conduct an election.”
Thus, and as rightly determined by the Committee to which the Court subscribes to, “the election of Atty. Soriano (QC Chapter) in the special election that was presided over by EVP Vinluan on May 4, 2009, was a nullity on three (3) grounds: First, because Atty. Soriano already lost the election on April 25, 2009. Second, the special election conducted by the Vinluan Group on May 4, 2(009) was illegal because it was not called nor presided by the regional Governor (Atty. Magsino). Third, Atty. Soriano is disqualified to run for GMR Governor for the 2009-2011 term because his “election” as such would violate the rotation rule which the Supreme Court requires to be “strictly implemented”.” This being so, since he was not a duly elected Governor of the Greater Manila Region, then Atty. Soriano cannot be voted as well as IBP Executive Vice President for 2009-2011.
With respect to the case of Atty. Fortunato, his election as Governor for the Western Visayas Region was upheld since “he obtained the highest number of votes among the three (3) candidates for the position” and “also because under the rotation rule, it is now the turn of the Romblon Chapter to represent the Western Visayas Region in the IBP Board of Governors.” On account thereof, the Court is convinced that the contentions of protestees Attys. Cornelio Aldon (Antique Chapter) and Benjamin Ortega (Negros Occidental Chapter) cannot prosper. After all, the Court already upheld per its Resolution in Bar Matter No. 586 dated May 16, 1991 that the “rotation rule” under Sections 37 and 39 of the IBP By-Laws “shall be strictly implemented so that all prior elections for governor in the region shall be reckoned with or considered in determining who should be the governor to be selected from the different chapters to represent the region in the Board of Governors.” More so, when the concerned chapter invoked its right thereto as in the case of Atty. Fortunato who came from the Romblon Chapter which was next in the rotation.
To the Court, the election of Atty. Fortunato as Governor last April 25, 2009 is well-settled. He did not only come from the chapter which is entitled to be elected for the said position, but also got the highest number of votes among the candidates that included protestees Attys. Aldon and Ortega. As the election was presided over by then outgoing Governor Raymund Mercado, the Court finds no cogent reason as well to reverse the findings of the Committee insofar as upholding the election of Atty. Fortunato is concerned. Suffice it to say, the Committee was correct in not finding any anomaly with respect thereto.
On the nullification of the election of Atty. Nasser Marohomsalic as Governor for the Western Mindanao Region, the Court does not agree with the recommendation of the Committee to hold a special election in the said region[9]. Instead, the Court rules to uphold the election of Atty. Marohomsalic last April 25, 2009 which was presided over by then outgoing Governor Carlos Valdez, Jr.
It must be pointed out that Atty. Marohomsalic was duly nominated by Atty. Alex Macalawi, President of the Lanao del Sur Chapter, and the official delegate of the said chapter to the House of Delegates for the Western Mindanao Region during the elections held last April 25, 2009. On the other hand, Atty. Benjamin Lanto was supposedly nominated by the Board of Officers of the Lanao del Sur Chapter, except Atty. Macalawi, in Resolution No. 002-2009 dated February 28, 2009. However, it appears that, as discovered by the Committee, “three (3) signatories of the resolution” apparently “resigned as members of the Board of Officers” since they are prosecutors who are “ineligible for election or appointment to any position in the Integrated Bar or any Chapter thereof”, while “(s)ix (6) other signatories of the resolution” allegedly “recalled their signatures” and they, instead, “signed an ‘authorization’ authorizing the Chapter President, Atty. Macalawi, “to select and vote” “for the Regional Governor for Western Mindanao”.” Thus, “(t)he withdrawal of nine (9) signatures from the Resolution No. 002, left only four (4) votes in support of Lanto’s nomination – a puny minority of the 14-member Board of Officers of the Lanao del Sur Chapter.” [10]
The attempt of Atty. Vinluan and his group of Governors to nullify the election of Atty. Marohomsalic through Resolution No. XVIII-2009 (Special A-30 April 2009) was clearly irregular and unjustified. Based on the April 25, 2009 election results, Atty. Marohomsalic won over his rival Atty. Lanto, 6 votes to 5 votes. Consequently, he was duly proclaimed as the elected Governor of the Western Mindanao Region. On April 27, 2009, Atty. Lanto filed an election protest, “questioning the validity of Atty. Marohomsalic’s nomination by Atty. Macalawi, President of the IBP Lanao del Sur Chapter, and claiming that his (Lanto’s) nomination by the Board of Officers of the Lanao del Sur Chapter was the valid nomination.”
Immediately, on April 30, 2009, the group of Atty. Vinluan issued Resolution No. XVIII-2009 proclaiming Atty. Lanto as the duly elected Governor without affording Atty. Marohomsalic his right to due process. More importantly, instead of calling for another election like what it did for the Greater Manila Region, the group of Atty. Vinluan proceeded to instantly declare Atty. Lanto as having been duly elected “on the ground that the nomination of the protestee, Nasser Marohomsalic, was contrary to the will of the Lanao del Sur Chapter expressed through Board Resolution No. 00(2)-2009 of the Board of Officers (of the Lanao del Sur Chapter).”[11]
As borne out by the records, Atty. Marohomsalic was duly nominated by Atty. Alex Macalawi, President of the Lanao del Sur Chapter, and the official delegate of the said chapter to the House of Delegates for the Western Mindanao Region during the elections. On the other hand, Atty. Lanto was supposedly nominated by the Board of Officers of the same Chapter in a resolution dated February 28, 2009, which was not signed and approved by Atty. Macalawi. However, and as already pointed out by the Committee, the “withdrawal of nine (9) signatures from the Resolution No. 002, left only four (4) votes in support of Lanto’s nomination – a puny minority of the 14-member Board of Officers of the Lanao del Sur Chapter.”[12]
Thus, the Committee, citing Sec. 37, Art. VI of the By-Laws, clearly repudiated and overturned Resolution No. XVIII-2009 (Special A- 30 April 2009) of Atty. Vinluan and his group of Governors. In its Report, it declared that the “nominee of the Chapter President, not the nominee of the Board of Officers, is the valid nominee for Governor of the Region,”[13] thereby sustaining the position of Atty. Marohomsalic and, in effect, the validity of his nomination by Atty. Macalawi.
Despite the said findings, Atty. Marohomsalic was stripped of his electoral mandate and victory when the Committee, invoking the strict application of the “rotation rule,” proceeded to altogether nullify the result of the elections duly conducted on April 25, 2009. According to the Committee, neither Lanto nor Marohomsalic is qualified to be elected governor because it was not the turn of Lanao del Sur chapter to represent the Western Mindanao Region in the Board of Governors for the 2009-2011 term. As declared in the Report --
However, under the rotation rule, it is not the Lanao del Sur Chapter that should represent the Western Mindanao Region in the Board of Governors for the 2009-2011 term. The record of the IBP National Secretariat shows that, starting in 1993-1995 when the strict implementation of the rotation rule began, the 12 –chapter Western Mindanao Region has been represented in the Board of Governors only six (6) Chapters, as follows:
1993-1995---Lanao del Sur-----Dimnatang T. Saro
1995-1997---Cotatabato---------George C. Jabido
1997-1999---ZAMBASULTA—Arthur D. Lim
1999-2001---ZAMBASULTA---Paulino R. Ersando
2001-2003---North Cotabato---- Little Sarah A. Agdeppa
2003-2005---Sultan Kudarat-----Carlos L. Valdez, Jr.
2005-2007---SOCSARGEN-----Rogelio C. Garcia
2007-2009---Sultan Kudarat-----Carlos L. Valdez, Jr.
Therefore, pursuant to the strict rotation rule, the Lanao del Sur Chapter must wait for the six (6) other Chapters in the region (Zamboanga Sibugay, Zamboanga del Norte, Zamboanga del Sur, Lanao del Norte, Misamis Occidental, and Maguindanao-Cotabato City) to have their turn in the Board of Governors before Lanao del Sur may again represent the Western Mindanao Region in the Board of Governors.
Since both Attys. Nasser Marohomsalic and Benjamin Lanto belong to the Lanao del Sur Chapter, both of them are disqualified to be elected as Governor of the Western Mindanao Region for the 2009-2011 term.
The ruling of the Committee insofar as it nullified the election of Atty. Marohomsalic as Governor of the Western Mindanao Region cannot be sustained for not being in full accord with facts and the rules. While the Committee may have correctly pointed out that under the rotation rule it was not yet the turn of IBP Lanao del Sur Chapter to represent the region in the Board of Governors for the 2009-2011 term, it does not necessarily follow that the result of the elections should be altogether nullified on that ground. Evidently, and as determined by the Committee itself, there are instances when the “rotation rule” was not followed insofar as the elections in 1999 and 2007 were concerned with respect to the Western Mindanao Region.
In the regular election of April 25, 2009, there is no dispute that the voting delegates of IBP Western Mindanao Region voted into office Atty. Marohomsalic of Lanao del Sur Chapter as Governor for the 2009-2011 term. During the said election, his only rival was Atty. Benjamin Lanto who also belongs to the same Lanao del Sur Chapter. A third candidate, Atty. Escobar from the Sarangani Chapter, was nominated but he declined the nomination.
While the Committee points out that six (6) chapters in the region, including Sarangani, are entitled to precedence over the Lanao del Sur chapter in the order of rotation, the fact remains that not one of them nominated or fielded a candidate from their respective ranks during the April 25, 2009 election. Neither did any one of them challenge the nominations of the Lanao del Sur Chapter based on the order of rotation.
By not fielding a candidate for Governor and by declining the nomination raised in favor of its Chapter President (Atty. Escobar), the IBP Sarangani Chapter is deemed to have waived its turn in the rotation order. The same can be said of the remaining chapters. They too are deemed to have waived their turn in the rotation as they opted not to field or nominate a candidate from among their respective members. Neither did they invoke the rotation rule to challenge the nominations from the Lanao del Sur Chapter. On the contrary, they fully expressed their concurrence to the cited nominations, which may be interpreted as a waiver of their right to take their turn to represent the region in the Board of Governors for the 2009-2011 term.
It need not be stressed that, as cited by the Committee itself, there were instances when the Governor of the Western Mindanao Region came from the same chapter such as ZAMBASULTA (1997-1999 & 1999-2001) and Sultan Kudarat (2003-2005 & 2007-2009). Thus, Atty. Marohomsalic could not be faulted if the other chapters opted not to field or nominate their own candidates. Having been validly nominated and duly proclaimed as the duly elected Governor of Western Mindanao, Atty. Marohomsalic therefore deserves to assume his position during the remainder of the term.
It would have been a different story if another Chapter in the order of rotation fielded its own candidate or invoked the rotation rule to challenge Atty. Marohomsalic’s nomination. But the record is bereft of any showing that his nomination and subsequent election was challenged on that basis. If there was any challenge at all, it merely referred to his nomination by Atty. Macalawi which the Committee itself has found to be in order. Thus, no compelling reason exists to disregard the electoral mandate and nullify the will of the voting delegates as expressed through the ballot.
The “rotation rule” is not absolute but subject to waiver as when the chapters in the order of rotation opted not to field or nominate their own candidates for Governor during the election regularly done for that purpose. If a validly nominated candidate obtains the highest number of votes in the election conducted, his electoral mandate deserves to be respected unless obtained through fraud as established by evidence. Such is not the case here.
Suffice it to say, the “rotation rule” should be applied in harmony with, and not in derogation of, the sovereign will of the electorate as expressed through the ballot. Thus, Atty. Marohomsalic cannot be divested and deprived of his electoral mandate and victory. The order of rotation is not a rigid and inflexible rule as to bar its relaxation in exceptional and compelling circumstances.
If only to stress, compared to the case of Atty. Fortunato whose Romblon Chapter invoked the “rotation rule,” no chapter in the Western Mindanao Region which was next in the rotation invoked the said rule.
Now, in its Report, the Committee nullified the elections for the IBP EVP separately and simultaneously conducted by President Bautista and EVP Vinluan on May 9, 2009 and called for a special election[14] for the same. In the case of the election conducted by EVP Vinluan, the results were nullified for lack of authority to preside over the election and for lack quorum, citing the disqualification of Attys. Soriano and Lanto to sit in the incoming Board of Governors. The finding deserves to be sustained.
In the same Report, the Committee also nullified the result of the election for the incoming EVP conducted by President Bautista. While recognizing President Bautista’s authority to conduct the election, the Committee nonetheless nullified the election results for lack of quorum, citing the ineligibility of Atty. Marohomsalic to sit in the incoming Board of Governors, thereby leaving only four (out of nine) Governors-elect in attendance which did not constitute a quorum.
With the election of Atty. Marohomsalic as Governor of Western Mindanao being deemed valid, then the defect of lack of quorum that supposedly tainted the election proceedings for EVP separately conducted by IBP President Bautista may have been cured, five (5) Governors being sufficient to constitute a quorum.
Be that as it may, the recommendation of the Committee to hold a special election for the EVP for the remaining 2009-2011 term deserves to be upheld to heal the divisions in the IBP and promote unity by enabling all the nine (9) Governors-elect to elect the EVP in a unified meeting called for that purpose. This will enable matters to start on a clean and correct slate, free from the politicking and the under handed tactics that have characterized the IBP elections for so long.
In the conduct of the unified election of the incoming EVP, the following findings and recommendations of the Committee shall be adopted:
THE ROTATION OF THE
PRESIDENCY AMONG THE REGIONS-
Sec. 47, Art. VII of the By-Laws, as amended by Bar Matter 491, Oct. 6, 1989, provides that the Executive Vice President shall be chosen by the Board of Governors from among the nine (9) regional governors. The Executive Vice President shall automatically become President for the next succeeding term. The Presidency shall rotate among the nine Regions.”
The list of national presidents furnished the Special Committee by the IBP National Secretariat, shows that the governors of the following regions were President of the IBP during the past nine (9) terms (1991-2009):
Numeriano Tanopo, Jr. (Pangasinan)…Central Luzon…1991-1993
Mervin G. Encanto (Quezon City)… Greater Manila 1993-1995
Raul R. Anchangco (Makati)…Southern Luzon…1995-1997
Jose Aguila Grapilon (Biliran)… Eastewrn Visayas … 1997-1999
Arthur D. Lim ( Zambasulta)…Western Mindanao…1999-2001
Teofilo S. Pilando, Jr. (Kalinga Apayao)…Northern Luzon…2001-2003
Jose Anselmo L. Cadiz (Camarines Sur)…Bicolandia…2005-Aug. 2006
Jose Vicente B. Salazar (Albay)…Bicolandia… Aug. 2006-2007
Feliciano M. Bautista (Pangasinan)…Central Luzon…2007-2009
Only the Governors of the Western Visayas and Eastern Mindanao regions have not yet had their turn as Executive Vice President cum next IBP President, while Central Luzon and Bicolandia have had two (2) terms already.
Therefore, either the governor of the Western Visayas Region, or the governor of the Eastern Mindanao Region should be elected as Executive Vice President for the 2009-2011 term.
Accordingly, a special election shall be held by the present nine-man IBP Board of Governors to elect the EVP for the remainder of the term of 2009-2011, which shall be presided over and conducted by IBP Officer-in-Charge Justice Santiago Kapunan (Ret.) within seven (7) days from notice.
Further, in its report, the Committee declared that “the high-handed and divisive tactics of Atty. Rogelio A. Vinluan and his group of Governors, Abelardo Estrada, Bonifacio Barandon Jr., Evergisto Escalon, and Raymund Mercado, which disrupted the peaceful and orderly flow of business in the IBP, caused chaos in the National Office, bitter disagreements, and ill-feelings, and almost disintegrated the Integrated Bar, constituted grave professional misconduct which should be appropriately sanctioned to discourage its repetition in the future.” [15]
The Committee, however, fell short of determining and recommending the appropriate penalty for the grave professional misconduct found to have been committed by Atty. Vinluan and his group of Governors. Still, with the above firm and unequivocal findings and declarations of the Committee against Atty. Vinluan and his group that included Attys. Estrada, Barandon, Jr., Escalon and Mercado as “unprofessional” members of the IBP Board of Governors (2007-2009 term) they certainly do not deserve to hold such esteemed positions.
It has long been held that, as provided for in Rule 1.01, Canon 1 of the Code of Professional Responsibility[16] that “(a) lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.” Added to this, Rule 7.03, Canon 7 requires that “(a) lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.” In the case at bar, such canons find application.
In addition, it was clear to the Committee, and the Court agrees, that “(t)he actuations of Atty. Vinluan’s Group in defying the lawful authority of IBP President Bautista, due to Atty. Vinluan’s overweening desire to propel his fraternity brother, Atty. Elpidio G. Soriano, to the next presidency of the IBP, smacked of politicking, which is strongly condemned and strictly prohibited by the IBP By-Laws and the Bar Integration Rule.” Indeed, said actuations of Atty. Vinluan and his group of former IBP Governors Estrada, Barandon, Jr., Escalon and Mercado were grossly inimical to the interest of the IBP and were violative of their solemn oath as lawyers. After all, what they did served only to benefit the apparently selfish goals of defeated candidate Atty. Elpidio Soriano to be elected as IBP EVP and be the next IBP President for the 2011-2013 term by hook or by crook.
Bearing the above in mind, what Attys. Vinluan, Estrada, Barandon, Jr., Escalon and Mercado conspired to do was truly “high-handed and divisive” that must not pass unsanctioned. Otherwise, future leaders of the IBP, Governors at that, might be similarly inclined to do what they did, much to the prejudice of the IBP and its membership. Surely, this should be addressed without much delay so as to nip-in-the-bud such gross misconduct and unprofessionalism. They all deserve to suffer the same fate for betraying as well the trust bestowed on them for the high positions that they previously held.
The Resolution of the Court in the case of Re: 1989 Elections of the Integrated Bar of the Philippines[17] already declared that unethical practices of lawyers during IBP elections cannot but result in the stature of the IBP as an association of the practitioners of a noble and honored profession being diminished. As held therein, “(r)espect for law is gravely eroded when lawyers themselves, who are supposed to be minions of the law, engage in unlawful practices and cavalierly brush aside the very rules that the IBP formulated for their observance.” [18] Indeed, the said strong and vigorous declaration of this Court on the 1989 IBP Election scandal is relevant here.
While Atty. Vinluan and his group deserve to be stripped of their positions in the IBP, this can no longer be done as their terms as Governors already expired, specially on the part of Attys. Estrada, Barandon, Jr., Escalon and Mercado. However, in the case of Atty. Vinluan, as former EVP of the IBP he would have automatically succeeded to the presidency for the term 2009-2011 but now should not be allowed to. After all, and considering the findings of the Committee, he has clearly manifested his unworthiness to hold the said post. On account thereof, Atty. Vinluan is thus declared unfit to assume the position of IBP President. To the Court, if Atty. Vinluan cannot be fit to become a Governor and EVP of the IBP then he is not entitled to succeed as its President for the 2009-2011 term.
Also, Atty. Vinluan and his group should no longer be allowed to run as national officers to prevent such similar irregularity from happening again. Thus, in subsequent elections of the IBP, they are disqualified to run as candidates.
On the recommendation of the Committee to amend Sections 31[19], 33, par. (g) [20], 39[21], 42[22], and 43[23], Article VI and Section 47[24], Article VII of the IBP By-Laws, the Court finds the same in order. As such, and in order to immediately effect reforms in the IBP, particularly in the holding of its elections for national officers, the subject amendments are hereby adopted and approved.
WHEREFORE, premises considered, the Court resolves that:
1. The elections of Attys. Manuel M. Maramba, Erwin M. Fortunato and Nasser A. Marohomsalic as Governors for the Greater Manila Region, Western Visayas Region and Western Mindanao Region, respectively, for the term 2009-2011 are UPHELD;
2. A special election to elect the IBP Executive Vice President for the 2009-2011 term is hereby ORDERED to be held under the supervision of this Court within seven (7) days from receipt of this Resolution with Attys. Maramba, Fortunato and Marohomsalic being allowed to represent and vote as duly-elected Governors of their respective regions;
3. Attys. Rogelio Vinluan, Abelardo Estrada, Bonifacio Barandon, Jr., Evergisto Escalon and Raymund Mercado are all found GUILTY of grave professional misconduct arising from their actuations in connection with the controversies in the elections in the IBP last April 25, 2009 and May 9, 2009 and are hereby disqualified to run as national officers of the IBP in any subsequent election. While their elections as Governors for the term 2007-2009 can no longer be annulled as this has already expired, Atty. Vinluan is declared unfit to hold the position of IBP Executive Vice President for the 2007-2009 term and therefore barred from succeeding as IBP President for the 2009-2011 term;
4. The proposed amendments to Sections 31, 33, par. (g), 39, 42, and 43, Article VI and Section 47, Article VII of the IBP By-Laws as contained in the Report and Recommendation of the Special Committee dated July 9, 2009 are hereby approved and adopted; and
5. The designation of retired SC Justice Santiago Kapunan as Officer-in-Charge of the IBP shall continue, unless earlier revoked by the Court, but not to extend beyond June 30, 2011.
SO ORDERED.
IN VIEW OF THE IMPORTANCE OF THIS DECISION OF THE SUPREME COURT, IN RE: A.M. NO. 09-5-2-SC, DEC. 14, 2010, I AM REPRODUCING IT IN ITS ENTIRETY, FOR LEGAL RESEARCH PURPOSES OF MY READERS.
EN BANC
A.M. No. 09-5-2-SC
Dec. 14, 2010
IN THE MATTER OF THE BREWING
CONTROVERSIES IN THE ELECTION
IN THE INTEGRATED BAR OF THE
PHILIPPINES,
R E S O L U T I O N
CORONA, C.J.:
This resolves the above matter involving the leadership controversy at the Integrated Bar of the Philippines (IBP) and the administrative case that was filed against some of the high-ranking officers of the IBP on account thereof.
I. Antecedents
The Court in an En Banc Resolution dated June 2, 2009 created a Special (Investigating) Committee[1] to look into the “brewing controversies in the IBP elections, specifically in the elections of Vice-President for the Greater Manila Region and Executive Vice-President of the IBP itself xxx and any other election controversy involving other chapters of the IBP, if any”, that includes as well the election of the Governors for Western Mindanao and Western Visayas.
Consequently, the Special Committee called the IBP officers involved to a preliminary conference on June 10, 2009. With respect thereto, Atty. Rogelio A. Vinluan then submitted a Preliminary Conference Brief on the same day. During the conference it was determined that the investigation would focus on the following issues or controversies:
1. What is the correct interpretation of Section 31, Article V of the IBP By-Laws which provides:
“SEC. 31. Membership. – The membership (of Delegates) shall consist of all the Chapter Presidents and, in the case of Chapters entitled to more than one Delegate each, the Vice-Presidents of the Chapters and such additional Delegates as the Chapters are entitled to. Unless the Vice-President is already a Delegate, he shall be an alternate Delegate. Additional Delegates and alternates shall in proper cases be elected by the Board of Officers of the Chapter. Members of the Board of Governors who are not Delegates shall be members ex officio of the House, without the right to vote.”
2. Who was validly elected Governor for the Greater Manila Region?
3. Who was validly elected Governor for Western Visayas Region?
4. Who was validly elected Governor for Western Mindanao Region?
5. Who was validly elected IBP Executive Vice President for the next term?
6. What is the liability, if any, of respondent Atty. Rogelio A. Vinluan under the administrative complaint for “grave professional misconduct, violation of attorney’s oath, and acts inimical to the IBP” filed against him by Attys. Marcial Magsino, Manuel Maramba and Nasser Marohomsalic?
Meanwhile, a Supplemental Complaint dated June 11, 2009 was received from Attys. Magsino, Maramba and Marohomsalic regarding the earlier complaint that they filed last May 21, 2009 against Atty. Vinluan.
As such, then IBP President Feliciano M. Bautista and then Executive Vice President (EVP) Vinluan agreed to submit their respective position papers on the above issues and controversies. Also, Atty. Vinluan was required to file his answer to the administrative complaint against him.
A Position Paper dated June 15, 2009 was then received from Atty. Vinluan. Attys. Elpidio G. Soriano, III and Erwin M. Fortunato also filed their Position Papers both dated June 15, 2009. It appears that an earlier Position Paper also dated June 15, 2009 was submitted by Atty. Benjamin B. Lanto.
For their part, Attys. Bautista, Maramba and Magsino filed their Position Paper dated June 16, 2009. Incidentally, in a Manifestation likewise dated June 16, 2009 Attys. Bautista, Maramba and Marcial M. Magsino submitted the same paper but already bearing the signature of Atty. Bautista.
Atty. Nasser A. Marohomsalic submitted his Position Paper dated June 17, 2009. The Special Committee, in the course of its investigation, further received a letter dated June 22, 2009 from Atty. Alex L. Macalawi, President of the IBP Lanao del Sur Chapter.
As to the administrative case filed against him, Atty. Vinluan, as respondent, filed his Comment dated June 15, 2009. In turn, Attys. Magsino, Maramba and Marohomsalic, as complainants, submitted their Reply dated June 23, 2009.
The Special Committee then submitted a Report and Recommendation dated July 9, 2009 the dispositive portion of which read as follows:
A. That to avoid further controversy regarding its proper interpretation and implementation, Sec. 31, Article V, of the By-Laws should be amended as follows (suggested amendments are in bold print):
“SEC. 31. Membership. – The membership of the House of Delegates shall consist of all the Chapter Presidents and in the case of Chapters entitled to mo(r)e than on(e) Delegate each, the Vice President of the Chapters and such additional Delegates as the Chapters are entitled to. Unless the Vice President is already (a) delegate, he shall be an alternate Delegate. Additional Delegates and their respective alternates shall be elected from, and by, the Board of Officers of the Chapter. If the Delegate chosen is incapacitated, or disqualified, or resigns, or refuses to serve, and there are enough members of the Board to be elected as Delegates, then the Board of Officers shall elect the additional delegates and alternates from the general membership of the Chapter, and his corresponding alternate shall take his place.”
B. That to avoid any ambiguity as to how the President shall preside and vote in meetings of the House of Delegates, paragraph (g), Sec. 33, Article V of the By-Laws should be amended as follows:
“(g) In all meetings and deliberations of the House, whether in annual or special convention, the President shall preside, or the Executive Vice President, if the President is absent or incapacitated, but neither of them shall vote except to break a tie.”
C. Similarly, Sec. 42, Article VI of the By-Laws, on meetings of the Board of Governors, should be amended to read as follows:
“Sec. 42. Meetings. – The Board shall meet regularly once a month, on such date and such time and place as it shall designate. Special meetings may be called by the President, and shall be called by him upon the written request of five (5) members of the Board. The President shall not vote except to break a tie in the voting. When for any reason, the President cannot preside on account of his absence, incapacity, or refusal to call a meeting, the Executive Vice President shall preside, there being a quorum to transact business, but he may not vote except to break a tie.
D. That Sec. 43, Article VI of the By-Laws, on the procedure for approving a resolution by the Board of Governors without a meeting, should be amended by adding the following exception thereto so that the procedure may not be abused in connection with any election in the IBP:
“This provision shall not apply when the Board shall hold an election or hear and decide an election protest.”
E. That the provision for the strict implementation of the rotation rule among the Chapters in the Regions for the election of the Governor for the regions, (as ordered by this Honorable Court in Bar Matter No. 586, May 14, 1991) should be incorporated in Sec. 39, Article VI of the By-Laws, as follows:
“Sec. 39. Nomination and election of the Governors. – At least one (1) month before the national convention the delegates from each region shall elect the Governor for their region, who shall be chosen by rotation which is mandatory and shall be strictly implemented among the Chapters in the region. When a Chapter waives its turn in the rotation order, its place shall redound to the next Chapter in the line. Nevertheless, the former may reclaim its right to the Governorship at any time before the rotation is completed; otherwise, it will have to wait for its turn in the next round, in the same place that it had in the round completed.
F. That in view of the fact that the IBP no longer elects its President, because the Executive Vice President automatically succeeds the President at the end of his term, Sec. 47, Article VII of the By-Laws should be amended by deleting the provision for the election of the President. Moreover, for the strict implementation of the rotation rule, the Committee recommends that there should be a sanction for its violation, thus:
“Sec. 47. National Officers. – The Integrated Bar of the Philippines shall have a President, an Executive Vice President, and nine (9) regional Governors. The Executive Vice President shall be elected on a strict rotation basis by the Board of Governors from among themselves, by the vote of at least five (5) Governors. 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.
“The violation of the rotation rule in any election shall be penalized by annulment of the election and disqualification of the offender from election or appointment to any office in the IBP.”
G. That Atty. Manuel M. Maramba should be declared the duly elected Governor of the Greater Manila Region for the 2009-2011 term.
H. That Atty. Erwin Fortunato of the Romblon Chapter should be declared the duly elected Governor of the Western Visayas Region for the 2009-2011 term.
I. That a special election should be held in the Western Mindanao Region, within fifteen (15) days from notice, to elect the Governor of that region for the 2009-2011 term. In accordance with the rotation rule, only the six (6) Chapters in the region that have not yet been elected to the Board of Governors, namely: Zamboanga Sibugay, Zamboanga del Norte, Za(m)boanga del Sur, Lanao del Norte, Misamis Occidental, and Maguindanao-Cotabato City, shall participate in the election.
J. That, thereafter, a special election should also be held by the Board of Governors to elect the Executive Vice President for the 2009-2011 term with strict observance of the rotation rule. Inasmuch as for the past nine (9) terms, i.e., since the 1991-1993 term, the nominees of the Western Visayas and Eastern Mindanao Regions have not yet been elected Executive Vice President of the IBP, the special election shall choose only between the nominees of these two (2) regions who shall become the Executive Vice President for the 2009-2011 term, in accordance with the strict rotation rule.
K. That the high-handed and divisive tactics of Atty. Rogelio A. Vinluan and his group of Governors, Abelardo Estrada, Bonifacio Barandon, Jr., Evergisto Escalon, and Raymund Mercado, which disrupted the peaceful and orderly flow of business in the IBP, caused chaos in the National Office, bitter disagreements, and ill-feelings, and almost disintegrated the Integrated Bar, constituted grave professional misconduct which should be appropriately sanctioned to discourage its repetition in the future.
II. Findings of the Special Committee
In its Report and Recommendation dated July 9, 2009, the Special Committee disclosed when it was discussing the Board of Officers of each chapter that:
The government of a Chapter is vested in its Board of Officers composed of nine (9) officers, namely: the President, Vice-President, Secretary, Treasurer, and five (5) Directors who shall be elected by the members of the Chapter at the biennial meeting on the last Saturday of February, and shall hold office for a term of two (2) years from the first day of April following their election and until their successors shall have been duly chosen and qualified. For the 2009-2011 term, the election of Chapter officers was held on February 28, 2009.
In 1983 up to 1995, the Quezon City Chapter elected the usual nine (9) officers to its Board of Officers and they were all delegates to the House of Delegates. Beginning with the 1997-1999 term, when it added a Public Relations Officer (P.R.O.) and Auditor to its Board of Officers, the number of delegates allotted to the Chapter was also increased to eleven (11) like the membership in its Board of Officers, pursuant to a reapportionment of delegates by the Board of Governors under Sec. 30, Art. V of the By-Laws.
Up to the 2007-2009 term, all the officers of the QC Chapter were also the Chapter’s delegates to the House of Delegates. Atty. Victoria Loanzon who has been an officer of the Chapter in various capacities since 2003, like her fellow officers in the Board, automatically became a delegate since 2003 up to this time.
For the 2009-2011 term, the Board of Officers of the IBP-QC Chapter that assumed office on April 1, 2009, is composed of six (6) officers and (5) directors, namely:
President - - - - - - - - - - Tranquil Salvador III
Vice President - - - - - - Jonas Cabochan
Secretary - - - - - - - - - - Christian Fernandez
Treasurer - - - - - - - - - - Victoria Loanzon
Auditor - - - - - - - - - - - Ginger Anne Castillo
P.R.O. - - - - - - - - - - - - Ernesto Tabujara III
Director - - - - - - - - - - - Annalou Nachura
Director - - - - - - - - - - - Melody Sampaga
Director - - - - - - - - - - - Francois Rivera
Director - - - - - - - - - - - Joseph Cerezo
Director - - - - - - - - - - - Marita Iris Laqui
It is important to be an officer of one’s Chapter and a delegate to the House of Delegates, because a delegate gets to elect the Governor for the Region (which must rotate among the Chapters in the region). The Governor of the Region becomes a member of the Board of Governors, and gets to elect, or be elected, as the next IBP Executive Vice President who automatically becomes President for the next succeeding term (which must also rotate among the Regions).[2]
The Special Committee then pointed out that with respect to the IBP Board of Governors this consists of “nine (9) Governors from the nine (9) Regions. One (1) Governor for each Region shall be elected by the members of the House of Delegates from that region only. The Governors, the President and the Executive Vice-President shall hold office for a term of two (2) years from July 1 immediately following their election, up to June 30 of their second year in office and until their successors shall have been duly chosen and qualified.” It was further added by the Committee that:
At least one (1) month before the national convention, the delegates from each Region shall elect the Governor for their region. The IBP By-Laws provide that “starting in 1993-1995, the principle on rotation shall be strictly implemented so that all prior elections for Governor in the region shall be reckoned with or considered in determining who should be Governor to be selected from the different chapters to represent the region in the Board of Governors. Hence, the governorship of the region shall rotate among the chapters in the region.
The Governors-elect shall, by a vote of at least five (5), choose an Executive Vice-President, x x x either from among themselves or from other members of the Integrated Bar. The Executive Vice-President shall automatically become President for the next succeeding term. The Presidency shall rotate among the nine (9) Regions.[3]
According to the Committee, the “rotation of the position of Governor of a region among the Chapters was ordered by the Supreme Court in its Resolution dated May 14, 1991 in Bar Matter No. 586 (Clarification Re: Bar Matter No. 491, Atty. Romulo T. Capulong petitioner)”. With respect thereto, it was revealed that:
Pursuant to the principle of rotation, the governorship of a region shall rotate once in as many terms as the number of chapters there are in the region, to give every chapter a chance to represent the region in the Board of Governors. Thus, in a region composed of 5 chapters, each chapter is entitled to the governorship once in every 5 terms, or once every ten (10) years, since a term is two (2) years.
The record of the National IBP Secretariat shows that during the past five (5) terms, from 1999 up to 2009, the GMR (Greater Manila Region) governorship was occupied by the five (5) chapters of the region as follows:
1999-2001 ----- Jose P. Icaonapo ------------ Manila III
2001-2003 ----- Santos V. Catubay, Jr. ---- QuezonCity
2003-2005 ----- Rosario Setias-Reyes ------ Manila II
2005-2007 ----- Alicia A. Risos-Vidal ------ Manila I
2007-2009 ----- Marcial M. Magsino ------- Manila IV
In the next round, which starts with the 2009-2011 term, the same order of rotation should be followed by the five (5) chapters, i.e., Manila III shall begin the round, to be followed by Quezon City for 2011-2013 term, Manila for the 2013-2015 term, Manila I for the 2015-2017 term, and Manila IV for the 2017-2019 term.
In the Western Visayas Region which is composed of ten (10) chapters, each chapter is entitled to represent the governorship of the region once every ten (10) terms. The first chapter to occupy the governorship, must wait for the nine (9) other chapters to serve their respective terms, before it may have its turn again as Governor of the region.
The same rule applies to the Western Mindanao Region which is composed of twelve (12) chapters.
On April 25, 2009, the election of Governors for the nine (9) IBP regions proceeded as scheduled, presided over by their respective outgoing Governor.[4]
It was then cited by the Special Committee that “Sec. 47, Art. VII of the By-Laws, as amended by Bar Matter 491, Oct. 6, 1989, provides that the Executive Vice President shall be chosen by the Board of Governors from among the nine (9) regional governors. The Executive Vice President shall automatically become President for the next succeeding term. The Presidency shall rotate among the nine Regions.” Further, the Committee averred that:
The list of national presidents furnished the Special Committee by the IBP National Secretariat, shows that the governors of the following regions were President of the IBP during the past nine (9) terms (1991-2009):
Numeriano Tanopo, Jr. (Pangasinan) --- Central Luzon --- 1991-1993
Mervin G. Encanto (Quezon City) ------ Manila ------------ 1993-1995
Raul R. Angangco (Makati) -------------- Southern Luzon - 1995-1997
Jose Aguila Grapilon (Biliran) ----------- Eastern Visayas – 1997-1999
Arthur D. Lim (Zambasulta) ------------- Western Mindanao-1999-2001
Teofilo S. Pilando, Jr. (Kalinga-Apayao)-Northern Luzon – 2001-2003
Jose Anselmo I. Cadiz (Camarines Sur) –Bicolandia -------- 2003-2005
Jose Anselmo I. Cadiz (Camarines Sur) –Bicolandia ----2005-Aug 2006
Jose Vicente B. Salazar (Albay) ---------- Bicolandia --- Aug. 2006-2007
Feliciano M. Bautista (Pangasinan) ------ Central Luzon ---- 2007-2009
Only the governors of the Western Visayas and Eastern Mindanao regions have not yet had their turn as Executive Vice President cum next IBP President, while Central Luzon and Bicolandia have had two (2) terms already.
Therefore, either the governor of the Western Visayas Region, or the governor of the Eastern Mindanao Region should be elected as Executive Vice-President for the 2009-2011 term. The one who is not chosen for this term, shall have his turn in the next (2011-2013) term. Afterwards, another rotation shall commence with Greater Manila in the lead, followed by Southern Luzon, Eastern Visayas, Western Mindanao, Northern Luzon, Bicolandia, Central Luzon, and either Western Visayas or Eastern Mindanao at the end of the round.[5]
The Committee then disclosed that the controversies involved herein and should be resolved are the following: (I) the dispute concerning additional delegates of the QC Chapter to the House of Delegates; (II) the election of the Governor for the Greater Manila Region (GMR); (III) the election of Governor for the Western Visayas Region; (IV) the election of Governor for the Western Mindanao Region; (V) the resolution of the election protests; (VI) the election of the IBP Executive Vice President for the 2009-2011 term; and, (VII) the administrative complaint against EVP Rogelio Vinluan.
In addressing the above controversies, the Committee arrived at the following findings and conclusions:
I. The silence of Sec. 31, Art. V of the IBP By-Laws on who may be elected as additional delegates and alternates by the remaining members of the Board of Officers of the Chapter when the Chapter is entitled to more than two (2) delegates to the House of Delegates, is the root cause of the conflicting resolutions of the Bautista and Vinluan factions on the proper interpretation of the aforementioned provision of the By-Laws.
According to the Resolution No. XVIII-2009 dated April 17, 2009 of the Bautista Group, “the additional delegate/s shall be elected by the Board of Officers of the Chapter only from among the remaining duly elected officers and members of the Board, in consideration of their mandate from the general membership.
According to the Resolution No. XVIII-2009 (Special-23 April 2009) of the Vinluan Group, “the election of the additional delegate/s for the Chapters entitled to more than two (2) delegates shall be elected by the Board of Officers of the Chapter from among the general membership who are in good standing to include the remaining duly elected officers and members of the Board.”
The Committee finds the qualification introduced by Resolution No. XVIII-2009 – “that the additional delegate/s and alternates must be elected from among the remaining officers of the Chapter” – to be consistent with the precedent set by Section 31 itself in appointing members of the Board of Officers, namely, (a) the president of the Chapter as the delegate, and the vice president as the alternate, or second, delegate to the House of Delegates, when the Chapter is entitled to two (2) delegates. There is a manifest intention in Sec. 31, Art. V of the By-Laws to reserve membership in the House of Delegates (which is the deliberative body of the IBP) for the elected officers of the Chapter since they have already received the mandate of the general membership of the Chapter.
For the past four (4) terms (2003-2011), Atty. Loanzon has been an officer and delegate of the QC Chapter to the House of Delegates, until the Vinluan Group introduced its own interpretation of the aforementioned provision of the By-Laws and elected non-officers of the Chapter as delegates to the House of Delegates in lieu of herself and Atty. Laqui.
We find the Vinluan Group’s interpretation of Sec. 31, Art. V, of the By-Laws in Resolution No. XVIII-2009 (Special – 23 April 2009) to be in error and devoid of rational and historical bases.
II. Attys. Victoria Loanzon and Marite Laqui were properly recognized as delegates of the QC Chapter by the Presiding Officer, GMR Governor Marcial Magsino, during the election on April 25, 2009 of the Governor for the Greater Manila Region, in accordance with the guideline in Resolution No. XVIII-2009.
The argument of the QC-Chapter President Tranquil Salvador, that Attys. Loanzon and Laqui were not delegates because they were not elected by the QC-Board of Officers, is not well taken.
Sec. 31, Art. V of the By-Laws provides that:
“Additional Delegates and alternates shall in proper cases be elected by the Board of Officers of the Chapter.”
The QC Chapter is not a “proper case” for the election of additional delegates by the Board of Officers because the Chapter is entitled to the same number of delegates (11) to the House, as the number of officers in its Board of Officers. Its officers are ipso facto the Chapter’s delegates to the House. There is no need for the Board of Officers to conduct an election.
A “proper case” for the election of additional delegates and alternates by the Board of Officers occurs when the number of additional delegates and alternates for the Chapter is less than the members of the Board of Officers, for, then, the Board of Officers must select, and elect, who among themselves should be the additional delegate/s and alternates of the Chapter to the House of Delegates. That has never been the case of the QC Chapter.
III. Atty. Manuel Maramba (Manila III Chapter) was validly elected as GMR Governor for the 2009-2011 term, not only because he outvoted his rival, Atty. Elpidio Soriano (Quezon City Chapter), but also because under the principle of rotation of the governorship (Bar Matter No. 586, May 14, 1991) since the five (5) chapters of the Greater Manila Region have all represented the region in the Board of Governors during the past five (5) terms, in the following order:
1999-2001 -------- Manila III -------- Jose P. Icaonapo
2001-2003 -------- Quezon City ----- Santos V. Catubay, Jr.
2003-2005 -------- Manila II ---------- Rosario Setias-Reyes
2005-2007 -------- Manila I ----------- Alicia A. Risos-Vidal
2007-2009 -------- Manila IV --------- Marcial M. Magsino
it is now the turn of the representative of the Manila III Chapter to sit again in the Board of Governors for the next round which begins in the 2009-2011 term. The Manila III representative, Atty. Manuel M. Maramba, has every right to the position not only because he won the election with 13 votes in his favor against 12 for Atty. Soriano, but also because his election follows the rotation rule decreed by the Supreme Court.
On the other hand, the election of Atty. Soriano (QC Chapter) in the special election that was presided over by EVP Vinluan on May 4, 2009, was a nullity on three (3) grounds: First, because Atty. Soriano already lost the election on April 25, 2009. Second, the special election conducted by the Vinluan Group on May 4, 2(00)8 was illegal because it was not called nor presided over by the regional Governor. Third, Atty. Soriano is disqualified to run for GMR Governor for the 2009-2011 term because his “election” as such would violate the rotation rule which the Supreme Court requires to be “strictly implemented”. Under the rotation rule, the GMR governorship for the 2009-2011 term belongs to the Manila III Chapter, not to the QC Chapter, whose turn will come two (2) years later, in 2011-2013 yet.
IV. Atty. Erwin Fortunato of the Romblon Chapter was duly elected as Governor for the Western Visayas Region for the 2009-2011 term, not only because he obtained the highest number of votes among the three (3) candidates for the position, but also because under the rotation rule, it is now the turn of the Romblon Chapter to represent the Western Visayas Region in the IBP Board of Governors.
The contention of the protestants, Attys. Cornelio Aldon (Antique Chapter) and Benjamin Ortega (Negros Occidental Chapter) that the rotation rule in Sections 37 and 39 of the IBP By-Laws is not mandatory but only directory, betrays their ignorance of the resolution of the Supreme Court in Bar Matter No. 586 dated May 16, 1991, ruling that “the principle on rotation shall be strictly implemented so that all prior elections for governor in the region shall be reckoned with or considered in determining who should be the governor to be selected from the different chapters to represent the region in the Board of Governors.”
V. Neither Atty. Nasser Marohomsalic nor Atty. Benjamin Lanto is qualified to be elected Governor of Western Mindanao Region. Sec. 39, Art. VI of the IBP By-Laws provides that: “Starting in 1993-1995, the principle of rotation in the position of governor among the different chapters to represent the region in the Board of Governors shall be strictly implemented.
Under Sec. 37, Art. VI of the By-Laws, the Governor of a region shall be elected by the members of the House of Delegates from that region only. Since the delegate of a Chapter to the House of Delegates is the President of the Chapter, not the Board of Officers, the nominee of the Chapter President, not the nominee of the Board of Officers, is the valid nominee for Governor of the Region.
However, under the rotation rule, it is not the Lanao del Sur Chapter that should represent the Western Mindanao Region in the Board of Governors for the 2009-2011 term. The record of the IBP National Secretariat shows that, starting in 1993-1995 when the strict implementation of the rotation rule began, the 12-chapter Western Mindanao Region has been represented in the Board of Governors by only six (6) Chapters, as follows:
1993-1995 ----- Lanao del Sur ------ Dimnatang T. Saro
1995-1997 ----- Cotabato ------------ George C. Jabido
1997-1999 ----- ZAMBASULTA -- Arthur D. Lim
1999-2001 ----- ZAMBASULTA -- Paulino R. Ersando
2001-2003 ----- North Cotabato --- Little Sarah A. Agdeppa
2003-2005 ----- Sultan Kudarat ---- Carlos L. Valdez, Jr.
2005-2007 ----- SOCSARGEN ----- Rogelio C. Garcia
2007-2009 ----- Sultan Kudarat ---- Carlos L. Valdez, Jr.
Therefore, pursuant to the strict rotation, the Lanao del Sur Chapter must wait for the six (6) other Chapters in the region (Zamboanga Sibugay, Zamboanga del Norte, Zamboanga del Sur, Lanao del Norte, Misamis Occidental, and Maguindanao-Cotabato City) to have their turn in the Board of Governors before Lanao del Sur may again represent the Western Mindanao Region in the Board of Governors.
Since both Attys. Nasser Marohomsalic and B(e)njamin Lanto belong to the Lanao del Sur Chapter, both of them are disqualified to be elected as Governor of the Western Mindanao Region for the 2009-2011 term. With respect to Atty. Benjamin Lanto, his nomination by the Board of Officers was not only invalid, but also lost credibility after three (3), out of the thirteen (13) signatories to his nomination, resigned from the Board of Officers, and six (6) others signed “authorizations” in favor of Atty. Macalawi authorizing him to nominate and elect the Governor for the Western Mindanao Region. That left only four (4) votes in favor of his nomination for Governor of the Western Mindanao Region.
VI. The elections for the IBP Executive Vice President separately held on May 9, 2009 by the Bautista and Vinluan Groups were null and void for lack of quorum. The presence of five (5) Governors-elect is needed to constitute a quorum of the 9-member Board of Governors-elect who shall elect the Executive Vice President.
As previously stated, there were two (2) simultaneous elections for the Executive Vice President for the 2009-2011 term – one was called and presided over by EVP Vinluan in the Board Room of the IBP National Office, while the other election for the same position was presided over by outgoing IBP Pres. Bautista in another room of the same building, at the same time, 9:00 A.M., on the same date, May 9, 2009.
Those present at the meeting of the Vinluan Group were:
1. Atty. Elpidio G. Soriano
2. Atty. Benjamin B. Lanto
3. Atty. Amador Tolentino, Jr., Governor-elect for Southern Luzon
4. Atty. Jose V. Cabrera, Governor-elect for Bicolandia
5. Atty. Erwin Fortunato, Governor-elect for Western Visayas
6. Atty. Roland B. Inting, Governor-elect for Eastern Visayas
Since both Attys. Soriano and Lanto were not validly elected as Governors respectively of the Greater Manila Region and the Western Mindanao Region, they were disqualified to sit in the incoming Board of Governors and participate in the election of the succeeding Executive Vice President. The remaining four (4) Governors-elect – Governors Tolentino, Cabrera, Fortunato, and Inting, did not constitute a quorum of the Board of Governors to conduct a valid election of the IBP Executive Vice President. The election of Atty. Elpidio G. Soriano as Executive Vice President by the Vinluan Group was invalid. Aside from lack of a quorum to conduct the elections, EVP Vinluan wrongly presided over the election. Thus, Atty. Soriano was not duly elected as Governor of the Greater Manila Region, hence, he is disqualified to sit in the Board of Governors.
Neither did the meeting of the Bautista Group fare any better, for those present were:
1. Atty. Milagros Fernan-Cayosa, Governor-elect for Northern
Luzon
2. Atty. Ferdinand Y. Miclat, Governor-elect for Central Luzon
3. Atty. Manuel M. Maramba, Governor-elect for Greater Manila
4. Atty. Roan Libarios, Governor-elect for Eastern Mindanao
5. Atty. Nasser Marohomsalic
Atty. Marohomsalic’s election as Governor for Western Mindanao was invalid for violating the rotation rule. The four (4) remaining governors-elect (Attys. Cayosa, Miclat, Maramba and Libarios) like those in the Vinluan Group, did not constitute a quorum to conduct the election of the IBP Executive Vice President for the current term. The election of Governor Roan Libarios as Executive Vice President by this group was therefore null and void.
Besides that flaw in his election, since the Eastern Visayas Region, represented by Governor Jose Aguila Grapilon of Biliran, had succeeded to the presidency in 1997-1999, its next turn will come after the eight (8) other regions shall have also served in the presidency. That will be after sixteen years, or, in 2015-2017 yet.
VII. The administrative complaint against EVP Rogelio A. Vinluan and his Group of Governors (Abelardo Estrada of Northern Luzon, Bonifacio Barandon of Bicolandia, Evergisto Escalon of Eastern Visayas, and Raymund Mercado of Western Visayas) is meritorious, for their conduct was fractious and high-handed, causing disunity and acrimonious disagreements in the IBP.
1. The request of the EVP Vinluan’s Group for a special meeting of the Board of Governors on April 23, 2009 – two (2) days before the scheduled election of the regional Governors on April 25, 2009 – when IBP Pres. Bautista was in Zamboanga on IBP business, and the other Governors had just returned to their respective regions to prepare for the April 25 election of the regional governors, was unreasonable.
The special meeting on April 23, 2009 which he himself presided over, violated Sec. 42, Art. VI of the By-Laws which provides that it is the President who shall call a special meeting, and it is also the President who shall preside over the meeting, not Atty. Vinluan (Sec. 50, Art. VII, By-Laws).
The proper recourse for the Vinluan Group, in view of President Bautista’s refusal to call a special meeting as requested by them, is found in Section 43, Art. VI of the By-Laws which provides that-
“The Board may take action, without a meeting, by resolution signed by at least five Governors provided that every member of the Board shall have been previously apprised of the contents of the resolution.”
But the Vinluan Group ignored that procedure. They held a special meeting on April 23, 2009, where they adopted Resolution No. XVIII-2009 (Special-23 April 2009) striking out as ultra vires the earlier Resolution No. XVIII-2009 passed in the regular monthly meeting of the Board of Governors on April 17, 2009. That meeting was illegal, hence, the resolution adopted therein was null and void.
2. The second special meeting held by the Vinluan Group on April 30, 2009 wherein they approved Resolution XVIII-2009 (Special-A-30 April 2009) resolving the election protests in the GMR, Western Visayas and Western Mindanao governors’ elections, with complete disregard for the protestees’ right to due process, was likewise illegal, hence, the Group’s resolution of the election protests was likewise null and void, and the new election of the GMR Governor which they set on May 4, 2009 was invalid.
3. The “Board Resolution” which was adopted and faxed to the Governors-elect on May 8, 2009, by the Vinluan Group, setting the election of the IBP Executive Vice President on May 9, 2009, at 9:00 A.M.; declaring Pres. Bautista “unfit to preside” over the election and “designating EVP Vinluan to preside over the election” in lieu of Pres. Bautista, was uncalled and unwarranted, and caused disunity and disorder in the IBP. It was in effect a coup to unseat Pres. Bautista before the end of his term, and prematurely install EVP Vinluan as president.
The actuations of Atty. Vinluan’s Group in defying the lawful authority of IBP President Bautista, due to Atty. Vinluan’s overweening desire to propel his fraternity brother, Atty. Elpidio G. Soriano, to the next presidency of the IBP, smacked of politicking, which is strongly condemned and strictly prohibited by the IBP By-Laws and the Bar Integration Rule.[6]
Again, it must be noted that while the pending administrative case against Atty. Vinluan and his co-respondents has not yet been resolved, Atty. Vinluan was not allowed to assume his position as President of the IBP for 2009-2011. Instead, the Supreme Court designated retired Supreme Court Associate Justice Santiago Kapunan as Officer-in-Charge of the IBP.
III. Rulings of the Court
The Court completely agrees with the recommendations of the Special Committee with respect to, among others, the following:
1. Declaring Atty. Manuel M. Maramba (Manila III Chapter) as the duly elected Governor of the Greater Manila Region for the 2009-2011 term[7]; and,
2. Declaring Atty. Erwin M. Fortunato (Romblon Chapter) as the duly elected Governor of the Western Visayas Region for the 2009-2011 term[8].
As far as the Court is concerned, there is no dispute that the election of Atty. Maramba was in order. During the election held last April 25, 2009 which was duly presided over by then outgoing Greater Manila Region Governor Marcial Magsino, it was Atty. Maramba who garnered the highest number of votes among the delegates compared to Atty. Soriano, 13 votes to 12 votes. However, instead of accepting the said defeat graciously, Atty. Soriano then filed an election protest on April 27, 2009 claiming that the said election was void because there were non-delegates, particularly Attys. Loanzon and Laqui of the Quezon City Chapter, who were allowed to vote. Consequently, Atty. Soriano got a favorable ruling from the group of Atty. Vinluan, as EVP, and former Governors Estrada (Northern Luzon), Barandon, Jr. (Bicolandia), Escalon (Eastern Visayas) and Mercado (Western Visayas) per Resolution No. XVIII-2009 (Special A-30 April 2009). This then resulted in the anomalous election of Atty. Soriano as Governor of the Greater Manila Region last May 4, 2009.
In addressing the said controversy, and as already discussed, the Committee concluded that “the Vinluan Group’s interpretation of Sec. 31, Art. V, of the By-Laws in Resolution No. XVIII-2009 (Special-23 April 2009) to be in error and devoid of rational and historical bases.” It was then pointed out that “(t)he argument of the QC-Chapter President Tranquil Salvador, (as well as by Atty. Soriano), that Attys. Loanzon and Laqui were not delegates because they were not elected by the QC-Board of Officers, is not well taken.” Likewise, the Committee considered the situation then involving the Quezon City Chapter as “not a ‘proper case’ for the election of additional delegates by the Board of Officers because the Chapter is entitled to the same number of delegates (11) to the House (of Delegates), as the number of officers in its Board of Officers. Its officers are ipso facto the Chapter’s delegates to the House. There is no need for the Board of Officers to conduct an election.”
Thus, and as rightly determined by the Committee to which the Court subscribes to, “the election of Atty. Soriano (QC Chapter) in the special election that was presided over by EVP Vinluan on May 4, 2009, was a nullity on three (3) grounds: First, because Atty. Soriano already lost the election on April 25, 2009. Second, the special election conducted by the Vinluan Group on May 4, 2(009) was illegal because it was not called nor presided by the regional Governor (Atty. Magsino). Third, Atty. Soriano is disqualified to run for GMR Governor for the 2009-2011 term because his “election” as such would violate the rotation rule which the Supreme Court requires to be “strictly implemented”.” This being so, since he was not a duly elected Governor of the Greater Manila Region, then Atty. Soriano cannot be voted as well as IBP Executive Vice President for 2009-2011.
With respect to the case of Atty. Fortunato, his election as Governor for the Western Visayas Region was upheld since “he obtained the highest number of votes among the three (3) candidates for the position” and “also because under the rotation rule, it is now the turn of the Romblon Chapter to represent the Western Visayas Region in the IBP Board of Governors.” On account thereof, the Court is convinced that the contentions of protestees Attys. Cornelio Aldon (Antique Chapter) and Benjamin Ortega (Negros Occidental Chapter) cannot prosper. After all, the Court already upheld per its Resolution in Bar Matter No. 586 dated May 16, 1991 that the “rotation rule” under Sections 37 and 39 of the IBP By-Laws “shall be strictly implemented so that all prior elections for governor in the region shall be reckoned with or considered in determining who should be the governor to be selected from the different chapters to represent the region in the Board of Governors.” More so, when the concerned chapter invoked its right thereto as in the case of Atty. Fortunato who came from the Romblon Chapter which was next in the rotation.
To the Court, the election of Atty. Fortunato as Governor last April 25, 2009 is well-settled. He did not only come from the chapter which is entitled to be elected for the said position, but also got the highest number of votes among the candidates that included protestees Attys. Aldon and Ortega. As the election was presided over by then outgoing Governor Raymund Mercado, the Court finds no cogent reason as well to reverse the findings of the Committee insofar as upholding the election of Atty. Fortunato is concerned. Suffice it to say, the Committee was correct in not finding any anomaly with respect thereto.
On the nullification of the election of Atty. Nasser Marohomsalic as Governor for the Western Mindanao Region, the Court does not agree with the recommendation of the Committee to hold a special election in the said region[9]. Instead, the Court rules to uphold the election of Atty. Marohomsalic last April 25, 2009 which was presided over by then outgoing Governor Carlos Valdez, Jr.
It must be pointed out that Atty. Marohomsalic was duly nominated by Atty. Alex Macalawi, President of the Lanao del Sur Chapter, and the official delegate of the said chapter to the House of Delegates for the Western Mindanao Region during the elections held last April 25, 2009. On the other hand, Atty. Benjamin Lanto was supposedly nominated by the Board of Officers of the Lanao del Sur Chapter, except Atty. Macalawi, in Resolution No. 002-2009 dated February 28, 2009. However, it appears that, as discovered by the Committee, “three (3) signatories of the resolution” apparently “resigned as members of the Board of Officers” since they are prosecutors who are “ineligible for election or appointment to any position in the Integrated Bar or any Chapter thereof”, while “(s)ix (6) other signatories of the resolution” allegedly “recalled their signatures” and they, instead, “signed an ‘authorization’ authorizing the Chapter President, Atty. Macalawi, “to select and vote” “for the Regional Governor for Western Mindanao”.” Thus, “(t)he withdrawal of nine (9) signatures from the Resolution No. 002, left only four (4) votes in support of Lanto’s nomination – a puny minority of the 14-member Board of Officers of the Lanao del Sur Chapter.” [10]
The attempt of Atty. Vinluan and his group of Governors to nullify the election of Atty. Marohomsalic through Resolution No. XVIII-2009 (Special A-30 April 2009) was clearly irregular and unjustified. Based on the April 25, 2009 election results, Atty. Marohomsalic won over his rival Atty. Lanto, 6 votes to 5 votes. Consequently, he was duly proclaimed as the elected Governor of the Western Mindanao Region. On April 27, 2009, Atty. Lanto filed an election protest, “questioning the validity of Atty. Marohomsalic’s nomination by Atty. Macalawi, President of the IBP Lanao del Sur Chapter, and claiming that his (Lanto’s) nomination by the Board of Officers of the Lanao del Sur Chapter was the valid nomination.”
Immediately, on April 30, 2009, the group of Atty. Vinluan issued Resolution No. XVIII-2009 proclaiming Atty. Lanto as the duly elected Governor without affording Atty. Marohomsalic his right to due process. More importantly, instead of calling for another election like what it did for the Greater Manila Region, the group of Atty. Vinluan proceeded to instantly declare Atty. Lanto as having been duly elected “on the ground that the nomination of the protestee, Nasser Marohomsalic, was contrary to the will of the Lanao del Sur Chapter expressed through Board Resolution No. 00(2)-2009 of the Board of Officers (of the Lanao del Sur Chapter).”[11]
As borne out by the records, Atty. Marohomsalic was duly nominated by Atty. Alex Macalawi, President of the Lanao del Sur Chapter, and the official delegate of the said chapter to the House of Delegates for the Western Mindanao Region during the elections. On the other hand, Atty. Lanto was supposedly nominated by the Board of Officers of the same Chapter in a resolution dated February 28, 2009, which was not signed and approved by Atty. Macalawi. However, and as already pointed out by the Committee, the “withdrawal of nine (9) signatures from the Resolution No. 002, left only four (4) votes in support of Lanto’s nomination – a puny minority of the 14-member Board of Officers of the Lanao del Sur Chapter.”[12]
Thus, the Committee, citing Sec. 37, Art. VI of the By-Laws, clearly repudiated and overturned Resolution No. XVIII-2009 (Special A- 30 April 2009) of Atty. Vinluan and his group of Governors. In its Report, it declared that the “nominee of the Chapter President, not the nominee of the Board of Officers, is the valid nominee for Governor of the Region,”[13] thereby sustaining the position of Atty. Marohomsalic and, in effect, the validity of his nomination by Atty. Macalawi.
Despite the said findings, Atty. Marohomsalic was stripped of his electoral mandate and victory when the Committee, invoking the strict application of the “rotation rule,” proceeded to altogether nullify the result of the elections duly conducted on April 25, 2009. According to the Committee, neither Lanto nor Marohomsalic is qualified to be elected governor because it was not the turn of Lanao del Sur chapter to represent the Western Mindanao Region in the Board of Governors for the 2009-2011 term. As declared in the Report --
However, under the rotation rule, it is not the Lanao del Sur Chapter that should represent the Western Mindanao Region in the Board of Governors for the 2009-2011 term. The record of the IBP National Secretariat shows that, starting in 1993-1995 when the strict implementation of the rotation rule began, the 12 –chapter Western Mindanao Region has been represented in the Board of Governors only six (6) Chapters, as follows:
1993-1995---Lanao del Sur-----Dimnatang T. Saro
1995-1997---Cotatabato---------George C. Jabido
1997-1999---ZAMBASULTA—Arthur D. Lim
1999-2001---ZAMBASULTA---Paulino R. Ersando
2001-2003---North Cotabato---- Little Sarah A. Agdeppa
2003-2005---Sultan Kudarat-----Carlos L. Valdez, Jr.
2005-2007---SOCSARGEN-----Rogelio C. Garcia
2007-2009---Sultan Kudarat-----Carlos L. Valdez, Jr.
Therefore, pursuant to the strict rotation rule, the Lanao del Sur Chapter must wait for the six (6) other Chapters in the region (Zamboanga Sibugay, Zamboanga del Norte, Zamboanga del Sur, Lanao del Norte, Misamis Occidental, and Maguindanao-Cotabato City) to have their turn in the Board of Governors before Lanao del Sur may again represent the Western Mindanao Region in the Board of Governors.
Since both Attys. Nasser Marohomsalic and Benjamin Lanto belong to the Lanao del Sur Chapter, both of them are disqualified to be elected as Governor of the Western Mindanao Region for the 2009-2011 term.
The ruling of the Committee insofar as it nullified the election of Atty. Marohomsalic as Governor of the Western Mindanao Region cannot be sustained for not being in full accord with facts and the rules. While the Committee may have correctly pointed out that under the rotation rule it was not yet the turn of IBP Lanao del Sur Chapter to represent the region in the Board of Governors for the 2009-2011 term, it does not necessarily follow that the result of the elections should be altogether nullified on that ground. Evidently, and as determined by the Committee itself, there are instances when the “rotation rule” was not followed insofar as the elections in 1999 and 2007 were concerned with respect to the Western Mindanao Region.
In the regular election of April 25, 2009, there is no dispute that the voting delegates of IBP Western Mindanao Region voted into office Atty. Marohomsalic of Lanao del Sur Chapter as Governor for the 2009-2011 term. During the said election, his only rival was Atty. Benjamin Lanto who also belongs to the same Lanao del Sur Chapter. A third candidate, Atty. Escobar from the Sarangani Chapter, was nominated but he declined the nomination.
While the Committee points out that six (6) chapters in the region, including Sarangani, are entitled to precedence over the Lanao del Sur chapter in the order of rotation, the fact remains that not one of them nominated or fielded a candidate from their respective ranks during the April 25, 2009 election. Neither did any one of them challenge the nominations of the Lanao del Sur Chapter based on the order of rotation.
By not fielding a candidate for Governor and by declining the nomination raised in favor of its Chapter President (Atty. Escobar), the IBP Sarangani Chapter is deemed to have waived its turn in the rotation order. The same can be said of the remaining chapters. They too are deemed to have waived their turn in the rotation as they opted not to field or nominate a candidate from among their respective members. Neither did they invoke the rotation rule to challenge the nominations from the Lanao del Sur Chapter. On the contrary, they fully expressed their concurrence to the cited nominations, which may be interpreted as a waiver of their right to take their turn to represent the region in the Board of Governors for the 2009-2011 term.
It need not be stressed that, as cited by the Committee itself, there were instances when the Governor of the Western Mindanao Region came from the same chapter such as ZAMBASULTA (1997-1999 & 1999-2001) and Sultan Kudarat (2003-2005 & 2007-2009). Thus, Atty. Marohomsalic could not be faulted if the other chapters opted not to field or nominate their own candidates. Having been validly nominated and duly proclaimed as the duly elected Governor of Western Mindanao, Atty. Marohomsalic therefore deserves to assume his position during the remainder of the term.
It would have been a different story if another Chapter in the order of rotation fielded its own candidate or invoked the rotation rule to challenge Atty. Marohomsalic’s nomination. But the record is bereft of any showing that his nomination and subsequent election was challenged on that basis. If there was any challenge at all, it merely referred to his nomination by Atty. Macalawi which the Committee itself has found to be in order. Thus, no compelling reason exists to disregard the electoral mandate and nullify the will of the voting delegates as expressed through the ballot.
The “rotation rule” is not absolute but subject to waiver as when the chapters in the order of rotation opted not to field or nominate their own candidates for Governor during the election regularly done for that purpose. If a validly nominated candidate obtains the highest number of votes in the election conducted, his electoral mandate deserves to be respected unless obtained through fraud as established by evidence. Such is not the case here.
Suffice it to say, the “rotation rule” should be applied in harmony with, and not in derogation of, the sovereign will of the electorate as expressed through the ballot. Thus, Atty. Marohomsalic cannot be divested and deprived of his electoral mandate and victory. The order of rotation is not a rigid and inflexible rule as to bar its relaxation in exceptional and compelling circumstances.
If only to stress, compared to the case of Atty. Fortunato whose Romblon Chapter invoked the “rotation rule,” no chapter in the Western Mindanao Region which was next in the rotation invoked the said rule.
Now, in its Report, the Committee nullified the elections for the IBP EVP separately and simultaneously conducted by President Bautista and EVP Vinluan on May 9, 2009 and called for a special election[14] for the same. In the case of the election conducted by EVP Vinluan, the results were nullified for lack of authority to preside over the election and for lack quorum, citing the disqualification of Attys. Soriano and Lanto to sit in the incoming Board of Governors. The finding deserves to be sustained.
In the same Report, the Committee also nullified the result of the election for the incoming EVP conducted by President Bautista. While recognizing President Bautista’s authority to conduct the election, the Committee nonetheless nullified the election results for lack of quorum, citing the ineligibility of Atty. Marohomsalic to sit in the incoming Board of Governors, thereby leaving only four (out of nine) Governors-elect in attendance which did not constitute a quorum.
With the election of Atty. Marohomsalic as Governor of Western Mindanao being deemed valid, then the defect of lack of quorum that supposedly tainted the election proceedings for EVP separately conducted by IBP President Bautista may have been cured, five (5) Governors being sufficient to constitute a quorum.
Be that as it may, the recommendation of the Committee to hold a special election for the EVP for the remaining 2009-2011 term deserves to be upheld to heal the divisions in the IBP and promote unity by enabling all the nine (9) Governors-elect to elect the EVP in a unified meeting called for that purpose. This will enable matters to start on a clean and correct slate, free from the politicking and the under handed tactics that have characterized the IBP elections for so long.
In the conduct of the unified election of the incoming EVP, the following findings and recommendations of the Committee shall be adopted:
THE ROTATION OF THE
PRESIDENCY AMONG THE REGIONS-
Sec. 47, Art. VII of the By-Laws, as amended by Bar Matter 491, Oct. 6, 1989, provides that the Executive Vice President shall be chosen by the Board of Governors from among the nine (9) regional governors. The Executive Vice President shall automatically become President for the next succeeding term. The Presidency shall rotate among the nine Regions.”
The list of national presidents furnished the Special Committee by the IBP National Secretariat, shows that the governors of the following regions were President of the IBP during the past nine (9) terms (1991-2009):
Numeriano Tanopo, Jr. (Pangasinan)…Central Luzon…1991-1993
Mervin G. Encanto (Quezon City)… Greater Manila 1993-1995
Raul R. Anchangco (Makati)…Southern Luzon…1995-1997
Jose Aguila Grapilon (Biliran)… Eastewrn Visayas … 1997-1999
Arthur D. Lim ( Zambasulta)…Western Mindanao…1999-2001
Teofilo S. Pilando, Jr. (Kalinga Apayao)…Northern Luzon…2001-2003
Jose Anselmo L. Cadiz (Camarines Sur)…Bicolandia…2005-Aug. 2006
Jose Vicente B. Salazar (Albay)…Bicolandia… Aug. 2006-2007
Feliciano M. Bautista (Pangasinan)…Central Luzon…2007-2009
Only the Governors of the Western Visayas and Eastern Mindanao regions have not yet had their turn as Executive Vice President cum next IBP President, while Central Luzon and Bicolandia have had two (2) terms already.
Therefore, either the governor of the Western Visayas Region, or the governor of the Eastern Mindanao Region should be elected as Executive Vice President for the 2009-2011 term.
Accordingly, a special election shall be held by the present nine-man IBP Board of Governors to elect the EVP for the remainder of the term of 2009-2011, which shall be presided over and conducted by IBP Officer-in-Charge Justice Santiago Kapunan (Ret.) within seven (7) days from notice.
Further, in its report, the Committee declared that “the high-handed and divisive tactics of Atty. Rogelio A. Vinluan and his group of Governors, Abelardo Estrada, Bonifacio Barandon Jr., Evergisto Escalon, and Raymund Mercado, which disrupted the peaceful and orderly flow of business in the IBP, caused chaos in the National Office, bitter disagreements, and ill-feelings, and almost disintegrated the Integrated Bar, constituted grave professional misconduct which should be appropriately sanctioned to discourage its repetition in the future.” [15]
The Committee, however, fell short of determining and recommending the appropriate penalty for the grave professional misconduct found to have been committed by Atty. Vinluan and his group of Governors. Still, with the above firm and unequivocal findings and declarations of the Committee against Atty. Vinluan and his group that included Attys. Estrada, Barandon, Jr., Escalon and Mercado as “unprofessional” members of the IBP Board of Governors (2007-2009 term) they certainly do not deserve to hold such esteemed positions.
It has long been held that, as provided for in Rule 1.01, Canon 1 of the Code of Professional Responsibility[16] that “(a) lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.” Added to this, Rule 7.03, Canon 7 requires that “(a) lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.” In the case at bar, such canons find application.
In addition, it was clear to the Committee, and the Court agrees, that “(t)he actuations of Atty. Vinluan’s Group in defying the lawful authority of IBP President Bautista, due to Atty. Vinluan’s overweening desire to propel his fraternity brother, Atty. Elpidio G. Soriano, to the next presidency of the IBP, smacked of politicking, which is strongly condemned and strictly prohibited by the IBP By-Laws and the Bar Integration Rule.” Indeed, said actuations of Atty. Vinluan and his group of former IBP Governors Estrada, Barandon, Jr., Escalon and Mercado were grossly inimical to the interest of the IBP and were violative of their solemn oath as lawyers. After all, what they did served only to benefit the apparently selfish goals of defeated candidate Atty. Elpidio Soriano to be elected as IBP EVP and be the next IBP President for the 2011-2013 term by hook or by crook.
Bearing the above in mind, what Attys. Vinluan, Estrada, Barandon, Jr., Escalon and Mercado conspired to do was truly “high-handed and divisive” that must not pass unsanctioned. Otherwise, future leaders of the IBP, Governors at that, might be similarly inclined to do what they did, much to the prejudice of the IBP and its membership. Surely, this should be addressed without much delay so as to nip-in-the-bud such gross misconduct and unprofessionalism. They all deserve to suffer the same fate for betraying as well the trust bestowed on them for the high positions that they previously held.
The Resolution of the Court in the case of Re: 1989 Elections of the Integrated Bar of the Philippines[17] already declared that unethical practices of lawyers during IBP elections cannot but result in the stature of the IBP as an association of the practitioners of a noble and honored profession being diminished. As held therein, “(r)espect for law is gravely eroded when lawyers themselves, who are supposed to be minions of the law, engage in unlawful practices and cavalierly brush aside the very rules that the IBP formulated for their observance.” [18] Indeed, the said strong and vigorous declaration of this Court on the 1989 IBP Election scandal is relevant here.
While Atty. Vinluan and his group deserve to be stripped of their positions in the IBP, this can no longer be done as their terms as Governors already expired, specially on the part of Attys. Estrada, Barandon, Jr., Escalon and Mercado. However, in the case of Atty. Vinluan, as former EVP of the IBP he would have automatically succeeded to the presidency for the term 2009-2011 but now should not be allowed to. After all, and considering the findings of the Committee, he has clearly manifested his unworthiness to hold the said post. On account thereof, Atty. Vinluan is thus declared unfit to assume the position of IBP President. To the Court, if Atty. Vinluan cannot be fit to become a Governor and EVP of the IBP then he is not entitled to succeed as its President for the 2009-2011 term.
Also, Atty. Vinluan and his group should no longer be allowed to run as national officers to prevent such similar irregularity from happening again. Thus, in subsequent elections of the IBP, they are disqualified to run as candidates.
On the recommendation of the Committee to amend Sections 31[19], 33, par. (g) [20], 39[21], 42[22], and 43[23], Article VI and Section 47[24], Article VII of the IBP By-Laws, the Court finds the same in order. As such, and in order to immediately effect reforms in the IBP, particularly in the holding of its elections for national officers, the subject amendments are hereby adopted and approved.
WHEREFORE, premises considered, the Court resolves that:
1. The elections of Attys. Manuel M. Maramba, Erwin M. Fortunato and Nasser A. Marohomsalic as Governors for the Greater Manila Region, Western Visayas Region and Western Mindanao Region, respectively, for the term 2009-2011 are UPHELD;
2. A special election to elect the IBP Executive Vice President for the 2009-2011 term is hereby ORDERED to be held under the supervision of this Court within seven (7) days from receipt of this Resolution with Attys. Maramba, Fortunato and Marohomsalic being allowed to represent and vote as duly-elected Governors of their respective regions;
3. Attys. Rogelio Vinluan, Abelardo Estrada, Bonifacio Barandon, Jr., Evergisto Escalon and Raymund Mercado are all found GUILTY of grave professional misconduct arising from their actuations in connection with the controversies in the elections in the IBP last April 25, 2009 and May 9, 2009 and are hereby disqualified to run as national officers of the IBP in any subsequent election. While their elections as Governors for the term 2007-2009 can no longer be annulled as this has already expired, Atty. Vinluan is declared unfit to hold the position of IBP Executive Vice President for the 2007-2009 term and therefore barred from succeeding as IBP President for the 2009-2011 term;
4. The proposed amendments to Sections 31, 33, par. (g), 39, 42, and 43, Article VI and Section 47, Article VII of the IBP By-Laws as contained in the Report and Recommendation of the Special Committee dated July 9, 2009 are hereby approved and adopted; and
5. The designation of retired SC Justice Santiago Kapunan as Officer-in-Charge of the IBP shall continue, unless earlier revoked by the Court, but not to extend beyond June 30, 2011.
SO ORDERED.
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