G.R. No.

100113 September 3, 1991

RENATO CAYETANO vs CHRISTIAN MONSOD
PARAS, J.:p
We are faced here with a controversy of far-reaching proportions. While ostensibly only
legal issues are involved, the Court's decision in this case would indubitably have a
profound effect on the political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at
the time of their appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any elective
position in the immediately preceding -elections. However, a majority
thereof, including the Chairman, shall be members of the Philippine Bar
who have been engaged in the practice of law for at least ten years.
(Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973
Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a Chairman and
eight Commissioners who shall be natural-born citizens of the Philippines and, at the time
of their appointment, at least thirty-five years of age and holders of a college degree.
However, a majority thereof, including the Chairman, shall be members of the Philippine
Bar who have been engaged in the practice of law for at least ten years.' (Emphasis
supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice
of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of
legal principles and technique to serve the interest of another with his
consent. It is not limited to appearing in court, or advising and assisting in
the conduct of litigation, but embraces the preparation of pleadings, and
other papers incident to actions and special proceedings, conveyancing,
the preparation of legal instruments of all kinds, and the giving of all legal
advice to clients. It embraces all advice to clients and all actions taken for
them in matters connected with the law. An attorney engages in the

practice of law by maintaining an office where he is held out to be-an

attorney, using a letterhead describing himself as an attorney, counseling
clients in legal matters, negotiating with opposing counsel about pending
litigation, and fixing and collecting fees for services rendered by his
associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and
Trust Co. v. Dworken,129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in
the practice of law when he:
... for valuable consideration engages in the business of advising person,
firms, associations or corporations as to their rights under the law, or
appears in a representative capacity as an advocate in proceedings
pending or prospective, before any court, commissioner, referee, board,
body, committee, or commission constituted by law or authorized to settle
controversies and there, in such representative capacity performs any act
or acts for the purpose of obtaining or defending the rights of their clients
under the law. Otherwise stated, one who, in a representative capacity,
engages in the business of advising clients as to their rights under the law,
or while so engaged performs any act or acts either in court or outside of
court for that purpose, is engaged in the practice of law. (State ex. rel.
Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177)
stated:
The practice of law is not limited to the conduct of cases or litigation in
court; it embraces the preparation of pleadings and other papers incident
to actions and special proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts, and in addition,
conveying. In general, all advice to clients, and all action taken for them in
mattersconnected with the law incorporation services, assessment and
condemnation services contemplating an appearance before a judicial
body, the foreclosure of a mortgage, enforcement of a creditor's claim in
bankruptcy and insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have been held to
constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the
trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p.
262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice
on a large variety of subjects, and the preparation and execution of legal

instruments covering an extensive field of business and trust relations and

other affairs. Although these transactions may have no direct connection
with court proceedings, they are always subject to become involved in
litigation. They require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity for adaptation to
difficult and complex situations. These customary functions of an attorney
or counselor at law bear an intimate relation to the administration of
justice by the courts. No valid distinction, so far as concerns the question
set forth in the order, can be drawn between that part of the work of the
lawyer which involves appearance in court and that part which involves
advice and drafting of instruments in his office. It is of importance to the
welfare of the public that these manifold customary functions be
performed by persons possessed of adequate learning and skill, of sound
moral character, and acting at all times under the heavy trust obligations
to clients which rests upon all attorneys. (Moran, Comments on the Rules
of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the
Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation briefing for new
lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as
advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in
the profession. If what he does exacts knowledge of the law and is of a
kind usual for attorneys engaging in the active practice of their profession,
and he follows some one or more lines of employment such as this he is a
practicing attorney at law within the meaning of the statute. (Barr v.
Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of law,
legal procedure, knowledge, training and experience. "To engage in the practice of law is to
perform those acts which are characteristics of the profession. Generally, to practice law is
to give notice or render any kind of service, which device or service requires the use in any
degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has adopted a
liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a
manifestation which I forgot to do during our review of the
provisions on the Commission on Audit. May I be allowed to
make a very brief statement?

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the
members of the Commission on Audit. Among others, the
qualifications provided for by Section I is that "They must
be Members of the Philippine Bar" I am quoting from the
provision "who have been engaged in the practice of law
for at least ten years".
To avoid any misunderstanding which would result in excluding members of
the Bar who are now employed in the COA or Commission on Audit, we
would like to make the clarification that this provision on qualifications
regarding members of the Bar does not necessarily refer or involve actual
practice of law outside the COA We have to interpret this to mean that as
long as the lawyers who are employed in the COA are using their legal
knowledge or legal talent in their respective work within COA, then they
are qualified to be considered for appointment as members or
commissioners, even chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions
and Agencies and we deem it important to take it up on the floor so that
this interpretation may be made available whenever this provision on the
qualifications as regards members of the Philippine Bar engaging in the
practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by
a lawyer is equivalent to the requirement of a law practice
that is set forth in the Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA,
although it is auditing, will necessarily involve legal work; it
will involve legal work. And, therefore, lawyers who are
employed in COA now would have the necessary
qualifications in accordance with the Provision on
qualifications under our provisions on the Commission on
Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that
this is equivalent to the practice of law.

THE PRESIDING OFFICER (Mr. Jamir).

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the
Chairman and two Commissioners of the Commission on Audit (COA) should either be
certified public accountants with not less than ten years of auditing practice, or members
of the Philippine Bar who have been engaged in the practice of law for at least ten years.
(emphasis supplied)

informed laymen such as businessmen, know that in most developed societies today,
substantially more legal work is transacted in law offices than in the courtrooms. General
practitioners of law who do both litigation and non-litigation work also know that in most
cases they find themselves spending more time doing what [is] loosely desccribe[d] as
business counseling than in trying cases. The business lawyer has been described as the
planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed]
that in law, as in medicine, surgery should be avoided where internal medicine can be
effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

Corollary to this is the term "private practitioner" and which is in many ways synonymous
with the word "lawyer." Today, although many lawyers do not engage in private practice, it
is still a fact that the majority of lawyers are private practitioners. (Gary
Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

In the course of a working day the average general practitioner wig engage in a number of
legal tasks, each involving different legal doctrines, legal skills, legal processes, legal
institutions, clients, and other interested parties. Even the increasing numbers of lawyers
in specialized practice wig usually perform at least some legal services outside their
specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from
one legal task or role such as advice-giving to an importantly different one such as
representing a client before an administrative agency. (Wolfram, supra, p. 687).

At this point, it might be helpful to define private practice. The term, as commonly
understood, means "an individual or organization engaged in the business of delivering
legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners."
Groups of lawyers are called "firms." The firm is usually a partnership and members of the
firm are the partners. Some firms may be organized as professional corporations and the
members called shareholders. In either case, the members of the firm are the experienced
attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled
"associates." (Ibid.).

By no means will most of this work involve litigation, unless the lawyer is one of the
relatively rare types a litigator who specializes in this work to the exclusion of much
else. Instead, the work will require the lawyer to have mastered the full range of traditional
lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And
increasingly lawyers find that the new skills of evaluation and mediation are both effective
for many clients and a source of employment. (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is
essentially tautologous, unhelpful defining the practice of law as that which lawyers do.
(Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593).
The practice of law is defined as the performance of any acts . . . in or out of court,
commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank &
Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne,
128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function
known in the commercial and governmental realm, such a definition would obviously be
too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly
familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers
spend little time in courtrooms, and a large percentage spend their entire practice without
litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the
litigating lawyer's role colors much of both the public image and the self perception of the
legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not
reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer,
once articulated on the importance of a lawyer as a business counselor in this wise: "Even
today, there are still uninformed laymen whose concept of an attorney is one who
principally tries cases before the courts. The members of the bench and bar and the

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained
in very important ways, at least theoretically, so as to remove from it some of the salient
features of adversarial litigation. Of these special roles, the most prominent is that of
prosecutor. In some lawyers' work the constraints are imposed both by the nature of the
client and by the way in which the lawyer is organized into a social unit to perform that
work. The most common of these roles are those of corporate practice and government
legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging
trends in corporate law practice, a departure from the traditional concept of practice of
law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging
trends in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate

legal policy formulation, particularly "model-making" and "contingency

planning," has impressed upon us the inadequacy of traditional procedures
in many decisional contexts.

their legal problems to private law firms. Many others have in-house
counsel only for certain matters. Other corporation have a staff large
enough to handle most legal problems in-house.

In a complex legal problem the mass of information to be processed, the

sorting and weighing of significant conditional factors, the appraisal of
major trends, the necessity of estimating the consequences of given
courses of action, and the need for fast decision and response in situations
of acute danger have prompted the use of sophisticated concepts of
information flow theory, operational analysis, automatic data processing,
and electronic computing equipment. Understandably, an improved
decisional structure must stress the predictive component of the policymaking process, wherein a "model", of the decisional context or a segment
thereof is developed to test projected alternative courses of action in terms
of futuristic effects flowing therefrom.

A corporate lawyer, for all intents and purposes, is a lawyer who handles
the legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out
as corporate secretary (in board meetings), appearances in both courts
and other adjudicatory agencies (including the Securities and Exchange
Commission), and in other capacities which require an ability to deal with
the law.

Although members of the legal profession are regularly engaged in

predicting and projecting the trends of the law, the subject of corporate
finance law has received relatively little organized and formalized attention
in the philosophy of advancing corporate legal education. Nonetheless, a
cross-disciplinary approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those
trained primarily in the law can be improved through an early introduction
to multi-variable decisional context and the various approaches for
handling such problems. Lawyers, particularly with either a master's or
doctorate degree in business administration or management, functioning
at the legal policy level of decision-making now have some appreciation for
the concepts and analytical techniques of other professions which are
currently engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing and
maintaining the business issue raised. (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to
as the "abogado de campanilla." He is the "big-time" lawyer, earning big
money and with a clientele composed of the tycoons and magnates of
business and industry.
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of
attorneys employed by a single corporation will vary with the size and type
of the corporation. Many smaller and some large corporations farm out all

At any rate, a corporate lawyer may assume responsibilities other than the
legal affairs of the business of the corporation he is representing. These
include such matters as determining policy and becoming involved in
management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated
from the action, or not understanding how one's work actually fits into the
work of the orgarnization. This can be frustrating to someone who needs to
see the results of his work first hand. In short, a corporate lawyer is
sometimes offered this fortune to be more closely involved in the running
of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law
field. After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is
perceived by many as glamorous, tills is an area coveted by corporate
lawyers. In most cases, however, the overseas jobs go to experienced
attorneys while the younger attorneys do their "international practice" in
law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein,
to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is
one who perceives the difficulties, and the excellent lawyer is one who
surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989,
p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm,"
so to speak. No longer are we talking of the traditional law teaching
method of confining the subject study to the Corporation Code and the
Securities Code but an incursion as well into the intertwining modern
management issues.

Such corporate legal management issues deal primarily with three (3)
types of learning: (1) acquisition of insights into current advances which
are of particular significance to the corporate counsel; (2) an introduction
to usable disciplinary skins applicable to a corporate counsel's
management responsibilities; and (3) a devotion to the organization and
management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a
shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the counsel's
role. For that matter, the corporate lawyer reviews the globalization
process, including the resulting strategic repositioning that the firms he
provides counsel for are required to make, and the need to think about a
corporation's; strategy at multiple levels. The salience of the nation-state is
being reduced as firms deal both with global multinational entities and
simultaneously with sub-national governmental units. Firms increasingly
collaborate not only with public entities but with each other often with
those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a
new role as a stakeholder in some cases participating in the
organization and operations of governance through participation on boards
and other decision-making roles. Often these new patterns develop
alongside existing legal institutions and laws are perceived as barriers.
These trends are complicated as corporations organize for global
operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental
policies toward the promotion and management of technology. New
collaborative arrangements for promoting specific technologies or
competitiveness more generally require approaches from industry that
differ from older, more adversarial relationships and traditional forms of
seeking to influence governmental policies. And there are lessons to be
learned from other countries. In Europe, Esprit, Eureka and Race are
examples of collaborative efforts between governmental and business
Japan's MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all
kinds of organizations. Effectiveness of both long-term and temporary
groups within organizations has been found to be related to indentifiable
factors in the group-context interaction such as the groups actively
revising their knowledge of the environment coordinating work with

outsiders, promoting team achievements within the organization. In

general, such external activities are better predictors of team performance
than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate
lawyer vis-a-vis the managerial mettle of corporations are challenged.
Current research is seeking ways both to anticipate effective managerial
procedures and to understand relationships of financial liability and
insurance considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors
are apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback
loops, inventory levels, and rates of flow, enable users to simulate all sorts
of systematic problems physical, economic, managerial, social, and
psychological. New programming techniques now make the system
dynamics principles more accessible to managers including corporate
counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department,
it can be used to appraise the settlement value of litigation, aid in
negotiation settlement, and minimize the cost and risk involved in
managing a portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can
be used directly by parties and mediators in all lands of negotiations. All
integrated set of such tools provide coherent and effective negotiation
support, including hands-on on instruction in these techniques. A
simulation case of an international joint venture may be used to illustrate
the point.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They differ
from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such
legal entities at that time when transactional or similar facts are being
considered and made.

Managerial Jurisprudence. This is the framework within which are

undertaken those activities of the firm to which legal consequences attach.
It needs to be directly supportive of this nation's evolving economic and
organizational fabric as firms change to stay competitive in a global,
interdependent environment. The practice and theory of "law" is not
adequate today to facilitate the relationships needed in trying to make a
global economy work.

certiorari and Prohibition praying that said confirmation and the consequent appointment
of Monsod as Chairman of the Commission on Elections be declared null and void.

Organization and Functioning of the Corporate Counsel's Office. The

general counsel has emerged in the last decade as one of the most vibrant
subsets of the legal profession. The corporate counsel hear responsibility
for key aspects of the firm's strategic issues, including structuring its global
operations, managing improved relationships with an increasingly
diversified body of employees, managing expanded liability exposure,
creating new and varied interactions with public decision-makers, coping
internally with more complex make or by decisions.

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod
worked in the law office of his father. During his stint in the World Bank Group (19631970), Monsod worked as an operations officer for about two years in Costa Rica and
Panama, which involved getting acquainted with the laws of member-countries negotiating
loans and coordinating legal, economic, and project work of the Bank. Upon returning to
the Philippines in 1970, he worked with the Meralco Group, served as chief executive
officer of an investment bank and subsequently of a business conglomerate, and since
1986, has rendered services to various companies as a legal and economic consultant or
chief executive officer. As former Secretary-General (1986) and National Chairman (1987)
of NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for
NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy,
Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's
Conference for Human Development, has worked with the under privileged sectors, such
as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative
action for the agrarian reform law and lately the urban land reform bill. Monsod also made
use of his legal knowledge as a member of the Davide Commission, a quast judicial body,
which conducted numerous hearings (1990) and as a member of the Constitutional
Commission (1986-1987), and Chairman of its Committee on Accountability of Public
Officers, for which he was cited by the President of the Commission, Justice Cecilia MuozPalma for "innumerable amendments to reconcile government functions with individual
freedoms and public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

This whole exercise drives home the thesis that knowing corporate law is
not enough to make one a good general corporate counsel nor to give him
a full sense of how the legal system shapes corporate activities. And even
if the corporate lawyer's aim is not the understand all of the law's effects
on corporate activities, he must, at the very least, also gain a working
knowledge of the management issues if only to be able to grasp not only
the basic legal "constitution' or makeup of the modem corporation.
"Business Star", "The Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more
than a passing knowledge of financial law affecting each aspect of their
work. Yet, many would admit to ignorance of vast tracts of the financial law
territory. What transpires next is a dilemma of professional security: Will
the lawyer admit ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business Star, "Corporate Finance law,"
Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the
position of Chairman of the COMELEC in a letter received by the Secretariat of the
Commission on Appointments on April 25, 1991. Petitioner opposed the nomination
because allegedly Monsod does not possess the required qualification of having been
engaged in the practice of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as
Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day,
he assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of
Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the
Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying
his professional license fees as lawyer for more than ten years. (p. 124, Rollo)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a
member.
In a loan agreement, for instance, a negotiating panel acts as a team, and
which is adequately constituted to meet the various contingencies that
arise during a negotiation. Besides top officials of the Borrower concerned,
there are the legal officer (such as the legal counsel), the finance manager,
and an operations officer (such as an official involved in negotiating the
contracts) who comprise the members of the team. (Guillermo V. Soliven,
"Loan Negotiating Strategies for Developing Country Borrowers," Staff
Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11).
(Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays
down the law as far as the loan transaction is concerned. Thus, the meat of
any Loan Agreement can be compartmentalized into five (5) fundamental

parts: (1) business terms; (2) borrower's representation; (3) conditions of

closing; (4) covenants; and (5) events of default. (Ibid., p. 13).

than satisfy the constitutional requirement that he has been engaged in the practice of
law for at least ten years.

In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and
legal advising, they score national development policies as key factors in
maintaining their countries' sovereignty. (Condensed from the work paper,
entitled "Wanted: Development Lawyers for Developing Nations,"
submitted by L. Michael Hager, regional legal adviser of the United States
Agency for International Development, during the Session on Law for the
Development of Nations at the Abidjan World Conference in Ivory Coast,
sponsored by the World Peace Through Law Center on August 26-31,
1973). ( Emphasis supplied)

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court
said:

Loan concessions and compromises, perhaps even more so than purely

renegotiation policies, demand expertise in the law of contracts, in
legislation and agreement drafting and in renegotiation. Necessarily, a
sovereign lawyer may work with an international business specialist or an
economist in the formulation of a model loan agreement. Debt
restructuring contract agreements contain such a mixture of technical
language that they should be carefully drafted and signed only with the
advise of competent counsel in conjunction with the guidance of adequate
technical support personnel. (See International Law Aspects of the
Philippine External Debts, an unpublished dissertation, U.S.T. Graduate
School of Law, 1987, p. 321). ( Emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission,
171 SCRA 744) where it stated:

A critical aspect of sovereign debt restructuring/contract construction is the

set of terms and conditions which determines the contractual remedies for
a failure to perform one or more elements of the contract. A good
agreement must not only define the responsibilities of both parties, but
must also state the recourse open to either party when the other fails to
discharge an obligation. For a compleat debt restructuring represents a
devotion to that principle which in the ultimate analysis issine qua non for
foreign loan agreements-an adherence to the rule of law in domestic and
international affairs of whose kind U.S. Supreme Court Justice Oliver
Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums;
but where they are, men learn that bustle and bush are not the equal of
quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of
Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal,
Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law". particularly
the modern concept of law practice, and taking into consideration the liberal construction
intended by the framers of the Constitution, Atty. Monsod's past work experiences as a
lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyernegotiator of contracts, and a lawyer-legislator of both the rich and the poor verily more

Appointment is an essentially discretionary power and must be performed

by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be faulted on the
ground that there are others better qualified who should have been
preferred. This is a political question involving considerations of wisdom
which only the appointing authority can decide. (emphasis supplied)

It is well-settled that when the appointee is qualified, as in this case, and

all the other legal requirements are satisfied, the Commission has no
alternative but to attest to the appointment in accordance with the Civil
Service Law. The Commission has no authority to revoke an appointment
on the ground that another person is more qualified for a particular
position. It also has no authority to direct the appointment of a substitute
of its choice. To do so would be an encroachment on the discretion vested
upon the appointing authority. An appointment is essentially within the
discretionary power of whomsoever it is vested, subject to the only
condition that the appointee should possess the qualifications required by
law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4)
stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance
of a commission (in the Philippines, upon submission by the Commission on Appointments
of its certificate of confirmation, the President issues the permanent appointment; and (4)
acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081,
October 14, 1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of
Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) SubArticle C, Article IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President
with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case

shall any Member be appointed or designated in a temporary or acting

capacity.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President,
may the Supreme Court reverse the Commission, and thus in
effect confirm the appointment? Clearly, the answer is in the negative.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of
law practice, as distinguished from the modern concept of the practice of
law, which modern connotation is exactly what was intended by the
eminent framers of the 1987 Constitution. Moreover, Justice Padilla's
definition would require generally a habitual law practice, perhaps
practised two or three times a week and would outlaw say, law practice
once or twice a year for ten consecutive years. Clearly, this is far from the
constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written
opinion, I made use of a definition of law practice which really means nothing because the
definition says that law practice " . . . is what people ordinarily mean by the practice of
law." True I cited the definition but only by way of sarcasm as evident from my statement
that the definition of law practice by "traditional areas of law practice is
essentially tautologous" or defining a phrase by means of the phrase itself that is being
defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations,
most individuals, in making use of the law, or in advising others on what the law means,
are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact
that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law
for over ten years. This is different from the acts of persons practising law, without first
becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President of
the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I
greatly doubt. For one thing, how can an action or petition be brought against the
President? And even assuming that he is indeed disqualified, how can the action be
entertained since he is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on
Monsod's confirmation, implicitly determined that he possessed the necessary
qualifications as required by law. The judgment rendered by the Commission in the
exercise of such an acknowledged power is beyond judicial interference except only upon a
clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction.
(Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly
shown shall the Court interfere with the Commission's judgment. In the instant case, there
is no occasion for the exercise of the Court's corrective power, since no abuse, much less a
grave abuse of discretion, that would amount to lack or excess of jurisdiction and would
warrant the issuance of the writs prayed, for has been clearly shown.

(2) In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirma Presidential nominee, it would be incredible
that the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth
life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked
Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on
condition that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod
burning white-hot two or three inches away from in front of Samson's eyes. This blinded
the man. Upon hearing of what had happened to her beloved, Delilah was beside herself
with anger, and fuming with righteous fury, accused the procurator of reneging on his
word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from
his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.

G.R. No. L-25291 January 30, 1971

THE INSULAR LIFE ASSURANCE CO., LTD., EMPLOYEES ASSOCIATION-NATU vs THE
INSULAR LIFE ASSURANCE CO., LTD.,
CASTRO, J.:

Appeal, by certiorari to review a decision and a resolution en banc of the Court of Industrial
Relations dated August 17, 1965 and October 20, 1965, respectively, in Case 1698-ULP.

for union shop. April 25, 1958 then was set by the parties to meet and discuss the
remaining demands.

The Insular Life Assurance Co., Ltd., Employees Association-NATU, FGU Insurance Group
Workers & Employees Association-NATU, and Insular Life Building Employees AssociationNATU (hereinafter referred to as the Unions), while still members of the Federation of Free
Workers (FFW), entered into separate collective bargaining agreements with the Insular
Life Assurance Co., Ltd. and the FGU Insurance Group (hereinafter referred to as the
Companies).

From April 25 to May 6, 1958, the parties negotiated on the labor demands but with no
satisfactory result due to a stalemate on the matter of salary increases. On May 13, 1958
the Unions demanded from the Companies final counter-proposals on their economic
demands, particularly on salary increases. Instead of giving counter-proposals, the
Companies on May 15, 1958 presented facts and figures and requested the Unions to
submit a workable formula which would justify their own proposals, taking into account the
financial position of the former. Forthwith the Unions voted to declare a strike in protest
against what they considered the Companies' unfair labor practices.

Two of the lawyers of the Unions then were Felipe Enaje and Ramon Garcia; the latter was
formerly the secretary-treasurer of the FFW and acting president of the Insular Life/FGU
unions and the Insular Life Building Employees Association. Garcia, as such acting
president, in a circular issued in his name and signed by him, tried to dissuade the
members of the Unions from disaffiliating with the FFW and joining the National Association
of Trade Unions (NATU), to no avail.
Enaje and Garcia soon left the FFW and secured employment with the Anti-Dummy Board
of the Department of Justice. Thereafter, the Companies hired Garcia in the latter part of
1956 as assistant corporate secretary and legal assistant in their Legal Department, and
he was soon receiving P900 a month, or P600 more than he was receiving from the FFW.
Enaje was hired on or about February 19, 1957 as personnel manager of the Companies,
and was likewise made chairman of the negotiating panel for the Companies in the
collective bargaining with the Unions.
In a letter dated September 16, 1957, the Unions jointly submitted proposals to the
Companies for a modified renewal of their respective collective bargaining contracts which
were then due to expire on September 30, 1957. The parties mutually agreed and to make
whatever benefits could be agreed upon retroactively effective October 1, 1957.
Thereafter, in the months of September and October 1957 negotiations were conducted on
the Union's proposals, but these were snagged by a deadlock on the issue of union shop,
as a result of which the Unions filed on January 27, 1958 a notice of strike for "deadlock on
collective bargaining." Several conciliation conferences were held under the auspices of
the Department of Labor wherein the conciliators urged the Companies to make reply to
the Unions' proposals en toto so that the said Unions might consider the feasibility of
dropping their demand for union security in exchange for other benefits. However, the
Companies did not make any counter-proposals but, instead, insisted that the Unions first
drop their demand for union security, promising money benefits if this was done.
Thereupon, and prior to April 15, 1958, the petitioner Insular Life Building Employees
Association-NATU dropped this particular demand, and requested the Companies to answer
its demands, point by point, en toto. But the respondent Insular Life Assurance Co. still
refused to make any counter-proposals. In a letter addressed to the two other Unions by
the joint management of the Companies, the former were also asked to drop their union
security demand, otherwise the Companies "would no longer consider themselves bound
by the commitment to make money benefits retroactive to October 1, 1957." By a letter
dated April 17, 1958, the remaining two petitioner unions likewise dropped their demand

Meanwhile, eighty-seven (87) unionists were reclassified as supervisors without increase in

salary nor in responsibility while negotiations were going on in the Department of Labor
after the notice to strike was served on the Companies. These employees resigned from
the Unions.
On May 20, 1958 the Unions went on strike and picketed the offices of the Insular Life
Building at Plaza Moraga.
On May 21, 1958 the Companies through their acting manager and president, the
respondent Jose M. Olbes (hereinafter referred to as the respondent Olbes), sent to each of
the strikers a letter (exhibit A) quoted verbatim as follows:
We recognize it is your privilege both to strike and to conduct picketing.
However, if any of you would like to come back to work voluntarily, you
may:
1. Advise the nearest police officer or security guard of your intention to do
so.
2. Take your meals within the office.
3. Make a choice whether to go home at the end of the day or to sleep
nights at the office where comfortable cots have been prepared.
4. Enjoy free coffee and occasional movies.
5. Be paid overtime for work performed in excess of eight hours.
6. Be sure arrangements will be made for your families.

The decision to make is yours whether you still believe in the motives of
the strike or in the fairness of the Management.

Before, the decisions was yours to make.

So it is now.

The Unions, however, continued on strike, with the exception of a few unionists who were
convinced to desist by the aforesaid letter of May 21, 1958.
From the date the strike was called on May 21, 1958, until it was called off on May 31,
1958, some management men tried to break thru the Unions' picket lines. Thus, on May
21, 1958 Garcia, assistant corporate secretary, and Vicente Abella, chief of the personnel
records section, respectively of the Companies, tried to penetrate the picket lines in front
of the Insular Life Building. Garcia, upon approaching the picket line, tossed aside the
placard of a picketer, one Paulino Bugay; a fight ensued between them, in which both
suffered injuries. The Companies organized three bus-loads of employees, including a
photographer, who with the said respondent Olbes, succeeded in penetrating the picket
lines in front of the Insular Life Building, thus causing injuries to the picketers and also to
the strike-breakers due to the resistance offered by some picketers.
Alleging that some non-strikers were injured and with the use of photographs as evidence,
the Companies then filed criminal charges against the strikers with the City Fiscal's Office
of Manila. During the pendency of the said cases in the fiscal's office, the Companies
likewise filed a petition for injunction with damages with the Court of First Instance of
Manila which, on the basis of the pendency of the various criminal cases against striking
members of the Unions, issued on May 31, 1958 an order restraining the strikers, until
further orders of the said court, from stopping, impeding, obstructing, etc. the free and
peaceful use of the Companies' gates, entrance and driveway and the free movement of
persons and vehicles to and from, out and in, of the Companies' building.
On the same date, the Companies, again through the respondent Olbes, sent individually
to the strikers a letter (exhibit B), quoted hereunder in its entirety:
The first day of the strike was last 21 May 1958.
Our position remains unchanged and the strike has made us even more
convinced of our decision.
We do not know how long you intend to stay out, but we cannot hold your
positions open for long. We have continued to operate and will continue to
do so with or without you.
If you are still interested in continuing in the employ of the Group
Companies, and if there are no criminal charges pending against you, we
are giving you until 2 June 1958 to report for work at the home office. If by
this date you have not yet reported, we may be forced to obtain your
replacement.

Incidentally, all of the more than 120 criminal charges filed against the members of the
Unions, except three (3), were dismissed by the fiscal's office and by the courts. These
three cases involved "slight physical injuries" against one striker and "light coercion"
against two others.
At any rate, because of the issuance of the writ of preliminary injunction against them as
well as the ultimatum of the Companies giving them until June 2, 1958 to return to their
jobs or else be replaced, the striking employees decided to call off their strike and to report
back to work on June 2, 1958.
However, before readmitting the strikers, the Companies required them not only to secure
clearances from the City Fiscal's Office of Manila but also to be screened by a management
committee among the members of which were Enage and Garcia. The screening
committee initially rejected 83 strikers with pending criminal charges. However, all nonstrikers with pending criminal charges which arose from the breakthrough incident were
readmitted immediately by the Companies without being required to secure clearances
from the fiscal's office. Subsequently, when practically all the strikers had secured
clearances from the fiscal's office, the Companies readmitted only some but adamantly
refused readmission to 34 officials and members of the Unions who were most active in the
strike, on the ground that they committed "acts inimical to the interest of the
respondents," without however stating the specific acts allegedly committed. Among those
who were refused readmission are Emiliano Tabasondra, vice president of the Insular Life
Building Employees' Association-NATU; Florencio Ibarra, president of the FGU Insurance
Group Workers & Employees Association-NATU; and Isagani Du Timbol, acting president of
the Insular Life Assurance Co., Ltd. Employees Association-NATU. Some 24 of the above
number were ultimately notified months later that they were being dismissed retroactively
as of June 2, 1958 and given separation pay checks computed under Rep. Act 1787, while
others (ten in number) up to now have not been readmitted although there have been no
formal dismissal notices given to them.
On July 29, 1958 the CIR prosecutor filed a complaint for unfair labor practice against the
Companies under Republic Act 875. The complaint specifically charged the Companies with
(1) interfering with the members of the Unions in the exercise of their right to concerted
action, by sending out individual letters to them urging them to abandon their strike and
return to work, with a promise of comfortable cots, free coffee and movies, and paid
overtime, and, subsequently, by warning them that if they did not return to work on or
before June 2, 1958, they might be replaced; and (2) discriminating against the members
of the Unions as regards readmission to work after the strike on the basis of their union
membership and degree of participation in the strike.

On August 4, 1958 the Companies filed their answer denying all the material allegations of
the complaint, stating special defenses therein, and asking for the dismissal of the
complaint.
After trial on the merits, the Court of Industrial Relations, through Presiding Judge Arsenio
Martinez, rendered on August 17, 1965 a decision dismissing the Unions' complaint for lack
of merit. On August 31, 1965 the Unions seasonably filed their motion for reconsideration
of the said decision, and their supporting memorandum on September 10, 1965. This was
denied by the Court of Industrial Relations en banc in a resolution promulgated on October
20, 1965.
Hence, this petition for review, the Unions contending that the lower court erred:
1. In not finding the Companies guilty of unfair labor practice in sending
out individually to the strikers the letters marked Exhibits A and B;
2. In not finding the Companies guilty of unfair labor practice for
discriminating against the striking members of the Unions in the matter of
readmission of employees after the strike;
3. In not finding the Companies guilty of unfair labor practice for dismissing
officials and members of the Unions without giving them the benefit of
investigation and the opportunity to present their side in regard to
activities undertaken by them in the legitimate exercise of their right to
strike; and
4. In not ordering the reinstatement of officials and members of the Unions,
with full back wages, from June 2, 1958 to the date of their actual
reinstatement to their usual employment.
I. The respondents contend that the sending of the letters, exhibits A and B, constituted a
legitimate exercise of their freedom of speech. We do not agree. The said letters were
directed to the striking employees individually by registered special delivery mail at that
without being coursed through the Unions which were representing the employees in the
collective bargaining.
The act of an employer in notifying absent employees individually during a
strike following unproductive efforts at collective bargaining that the plant
would be operated the next day and that their jobs were open for them
should they want to come in has been held to be an unfair labor practice,
as an active interference with the right of collective bargaining through
dealing with the employees individually instead of through their collective
bargaining representatives. (31 Am. Jur. 563, citing NLRB v. Montgomery
Ward & Co. [CA 9th] 133 F2d 676, 146 ALR 1045)

Indeed, it is an unfair labor practice for an employer operating under a collective

bargaining agreement to negotiate or to attempt to negotiate with his employees
individually in connection with changes in the agreement. And the basis of the prohibition
regarding individual bargaining with the strikers is that although the union is on strike, the
employer is still under obligation to bargain with the union as the employees' bargaining
representative (Melo Photo Supply Corporation vs. National Labor Relations Board, 321 U.S.
332).
Indeed, some such similar actions are illegal as constituting unwarranted acts of
interference. Thus, the act of a company president in writing letters to the strikers, urging
their return to work on terms inconsistent with their union membership, was adjudged as
constituting interference with the exercise of his employees' right to collective bargaining
(Lighter Publishing, CCA 7th, 133 F2d 621). It is likewise an act of interference for the
employer to send a letter to all employees notifying them to return to work at a time
specified therein, otherwise new employees would be engaged to perform their jobs.
Individual solicitation of the employees or visiting their homes, with the employer or his
representative urging the employees to cease union activity or cease striking, constitutes
unfair labor practice. All the above-detailed activities are unfair labor practices because
they tend to undermine the concerted activity of the employees, an activity to which they
are entitled free from the employer's molestation.1
Moreover, since exhibit A is a letter containing promises of benefits to the employees in
order to entice them to return to work, it is not protected by the free speech provisions of
the Constitution (NLRB v. Clearfield Cheese Co., Inc., 213 F2d 70). The same is true with
exhibit B since it contained threats to obtain replacements for the striking employees in
the event they did not report for work on June 2, 1958. The free speech protection under
the Constitution is inapplicable where the expression of opinion by the employer or his
agent contains a promise of benefit, or threats, or reprisal (31 Am. Jur. 544; NLRB vs.
Clearfield Cheese Co., Inc., 213 F2d 70; NLRB vs. Goigy Co., 211 F2d 533, 35 ALR 2d 422).
Indeed, when the respondents offered reinstatement and attempted to "bribe" the strikers
with "comfortable cots," "free coffee and occasional movies," "overtime" pay for "work
performed in excess of eight hours," and "arrangements" for their families, so they would
abandon the strike and return to work, they were guilty of strike-breaking and/or unionbusting and, consequently, of unfair labor practice. It is equivalent to an attempt to break
a strike for an employer to offer reinstatement to striking employees individually, when
they are represented by a union, since the employees thus offered reinstatement are
unable to determine what the consequences of returning to work would be.
Likewise violative of the right to organize, form and join labor organizations are the
following acts: the offer of a Christmas bonus to all "loyal" employees of a company shortly
after the making of a request by the union to bargain; wage increases given for the
purpose of mollifying employees after the employer has refused to bargain with the union,
or for the purpose of inducing striking employees to return to work; the employer's
promises of benefits in return for the strikers' abandonment of their strike in support of
their union; and the employer's statement, made about 6 weeks after the strike started, to
a group of strikers in a restaurant to the effect that if the strikers returned to work, they

would receive new benefits in the form of hospitalization, accident insurance, profitsharing, and a new building to work in.2
Citing paragraph 5 of the complaint filed by the acting prosecutor of the lower court which
states that "the officers and members of the complainant unions decided to call off the
strike and return to work on June 2, 1958 by reason of the injunction issued by the Manila
Court of First Instance," the respondents contend that this was the main cause why the
strikers returned to work and not the letters, exhibits A and B. This assertion is without
merit. The circumstance that the strikers later decided to return to work ostensibly on
account of the injunctive writ issued by the Court of First Instance of Manila cannot alter
the intrinsic quality of the letters, which were calculated, or which tended, to interfere with
the employees' right to engage in lawful concerted activity in the form of a strike.
Interference constituting unfair labor practice will not cease to be such simply because it
was susceptible of being thwarted or resisted, or that it did not proximately cause the
result intended. For success of purpose is not, and should not, be the criterion in
determining whether or not a prohibited act constitutes unfair labor practice.
The test of whether an employer has interfered with and coerced
employees within the meaning of subsection (a) (1) is whether the
employer has engaged in conduct which it may reasonably be said tends to
interfere with the free exercise of employees' rights under section 3 of the
Act, and it is not necessary that there be direct evidence that any
employee was in fact intimidated or coerced by statements of threats of
the employer if there is a reasonable inference that anti-union conduct of
the employer does have an adverse effect on self-organization and
collective bargaining. (Francisco, Labor Laws 1956, Vol. II, p.
323, citing NLRB v. Ford, C.A., 1948, 170 F2d 735).
Besides, the letters, exhibits A and B, should not be considered by themselves alone but
should be read in the light of the preceding and subsequent circumstances surrounding
them. The letters should be interpreted according to the "totality of conduct doctrine,"
... whereby the culpability of an employer's remarks were to be evaluated
not only on the basis of their implicit implications, but were to be appraised
against the background of and in conjunction with collateral circumstances.
Under this "doctrine" expressions of opinion by an employer which, though
innocent in themselves, frequently were held to be culpable because of the
circumstances under which they were uttered, the history of the particular
employer's labor relations or anti-union bias or because of their connection
with an established collateral plan of coercion or interference. (Rothenberg
on Relations, p. 374, and cases cited therein.)
It must be recalled that previous to the petitioners' submission of proposals for an
amended renewal of their respective collective bargaining agreements to the respondents,
the latter hired Felipe Enage and Ramon Garcia, former legal counsels of the petitioners, as
personnel manager and assistant corporate secretary, respectively, with attractive
compensations. After the notice to strike was served on the Companies and negotiations

were in progress in the Department of Labor, the respondents reclassified 87 employees as

supervisors without increase in salary or in responsibility, in effect compelling these
employees to resign from their unions. And during the negotiations in the Department of
Labor, despite the fact that the petitioners granted the respondents' demand that the
former drop their demand for union shop and in spite of urgings by the conciliators of the
Department of Labor, the respondents adamantly refused to answer the Unions'
demands en toto. Incidentally, Enage was the chairman of the negotiating panel for the
Companies in the collective bargaining between the former and the Unions. After the
petitioners went to strike, the strikers were individually sent copies of exhibit A, enticing
them to abandon their strike by inducing them to return to work upon promise of special
privileges. Two days later, the respondents, thru their president and manager, respondent
Jose M. Olbes, brought three truckloads of non-strikers and others, escorted by armed men,
who, despite the presence of eight entrances to the three buildings occupied by the
Companies, entered thru only one gate less than two meters wide and in the process,
crashed thru the picket line posted in front of the premises of the Insular Life Building. This
resulted in injuries on the part of the picketers and the strike-breakers.lwph1.t Then
the respondents brought against the picketers criminal charges, only three of which were
not dismissed, and these three only for slight misdemeanors. As a result of these criminal
actions, the respondents were able to obtain an injunction from the court of first instance
restraining the strikers from stopping, impeding, obstructing, etc. the free and peaceful use
of the Companies' gates, entrance and driveway and the free movement of persons and
vehicles to and from, out and in, of the Companies' buildings. On the same day that the
injunction was issued, the letter, Exhibit B, was sent again individually and by registered
special delivery mail to the strikers, threatening them with dismissal if they did not
report for work on or before June 2, 1958. But when most of the petitioners reported for
work, the respondents thru a screening committee of which Ramon Garcia was a
member refused to admit 63 members of the Unions on the ground of "pending criminal
charges." However, when almost all were cleared of criminal charges by the fiscal's office,
the respondents adamantly refused admission to 34 officials and union members. It is not,
however, disputed that all-non-strikers with pending criminal charges which arose from the
breakthrough incident of May 23, 1958 were readmitted immediately by the respondents.
Among the non-strikers with pending criminal charges who were readmitted were
Generoso Abella, Enrique Guidote, Emilio Carreon, Antonio Castillo, Federico Barretto,
Manuel Chuidian and Nestor Cipriano. And despite the fact that the fiscal's office found no
probable cause against the petitioning strikers, the Companies adamantly refused
admission to them on the pretext that they committed "acts inimical to the interest of the
respondents," without stating specifically the inimical acts allegedly committed. They were
soon to admit, however, that these alleged inimical acts were the same criminal charges
which were dismissed by the fiscal and by the courts..
Verily, the above actuations of the respondents before and after the issuance of the letters,
exhibit A and B, yield the clear inference that the said letters formed of the respondents
scheme to preclude if not destroy unionism within them.
To justify the respondents' threat to dismiss the strikers and secure replacements for them
in order to protect and continue their business, the CIR held the petitioners' strike to be an
economic strike on the basis of exhibit 4 (Notice of Strike) which states that there was a
"deadlock in collective bargaining" and on the strength of the supposed testimonies of

some union men who did not actually know the very reason for the strike. It should be
noted that exhibit 4, which was filed on January 27, 1958, states, inter alia:
TO: BUREAU OF LABOR RELATIONS
DEPARTMENT OF LABOR
MANILA
Thirty (30) days from receipt of this notice by the Office, this [sic] unions
intends to go on strike against
THE INSULAR LIFE ASSURANCE CO., LTD.
Plaza Moraga, Manila
THE FGU INSURANCE GROUP
Plaza Moraga, Manila
INSULAR LIFE BUILDING ADMINISTRATION
Plaza Moraga, Manila .
for the following reason: DEADLOCK IN COLLECTIVE BARGAINING...
However, the employees did not stage the strike after the thirty-day period, reckoned from
January 27, 1958. This simply proves that the reason for the strike was not the deadlock on
collective bargaining nor any lack of economic concessions. By letter dated April 15, 1958,
the respondents categorically stated what they thought was the cause of the "Notice of
Strike," which so far as material, reads:
3. Because you did not see fit to agree with our position on the union shop,
you filed a notice of strike with the Bureau of Labor Relations on 27 January
1958, citing `deadlock in collective bargaining' which could have been for
no other issue than the union shop." (exhibit 8, letter dated April 15, 1958.)
The strike took place nearly four months from the date the said notice of strike was filed.
And the actual and main reason for the strike was, "When it became crystal clear the
management double crossed or will not negotiate in good faith, it is tantamount to refusal
collectively and considering the unfair labor practice in the meantime being committed by
the management such as the sudden resignation of some unionists and [who] became
supervisors without increase in salary or change in responsibility, such as the coercion of
employees, decided to declare the strike." (tsn., Oct. 14, 1958, p. 14.) The truth of this
assertion is amply proved by the following circumstances: (1) it took the respondents six
(6) months to consider the petitioners' proposals, their only excuse being that they could
not go on with the negotiations if the petitioners did not drop the demand for union shop
(exh. 7, respondents' letter dated April 7, 1958); (2) when the petitioners dropped the
demand for union shop, the respondents did not have a counter-offer to the petitioners'
demands. Sec. 14 of Rep. Act 875 required the respondents to make a reply to the

petitioners' demands within ten days from receipt thereof, but instead they asked the
petitioners to give a "well reasoned, workable formula which takes into account the
financial position of the group companies." (tsn., Sept. 8, 1958, p. 62; tsn., Feb. 26, 1969,
p. 49.)
II. Exhibit H imposed three conditions for readmission of the strikers, namely: (1) the
employee must be interested in continuing his work with the group companies; (2) there
must be no criminal charges against him; and (3) he must report for work on June 2, 1958,
otherwise he would be replaced. Since the evidence shows that all the employees reported
back to work at the respondents' head office on June 2, 1953, they must be considered as
having complied with the first and third conditions.
Our point of inquiry should therefore be directed at whether they also complied with the
second condition. It is not denied that when the strikers reported for work on June 2, 1958,
63 members of the Unions were refused readmission because they had pending criminal
charges. However, despite the fact that they were able to secure their respective
clearances 34 officials and union members were still refused readmission on the alleged
ground that they committed acts inimical to the Companies. It is beyond dispute, however,
that non-strikers who also had criminal charges pending against them in the fiscal's office,
arising from the same incidents whence the criminal charges against the strikers evolved,
were readily readmitted and were not required to secure clearances. This is a clear act of
discrimination practiced by the Companies in the process of rehiring and is therefore a
violation of sec. 4(a) (4) of the Industrial Peace Act.
The respondents did not merely discriminate against all the strikers in general. They
separated the active from the less active unionists on the basis of their militancy, or lack of
it, on the picket lines. Unionists belonging to the first category were refused readmission
even after they were able to secure clearances from the competent authorities with
respect to the criminal charges filed against them. It is significant to note in this
connection that except for one union official who deserted his union on the second day of
the strike and who later participated in crashing through the picket lines, not a single union
officer was taken back to work. Discrimination undoubtedly exists where the record shows
that the union activity of the rehired strikers has been less prominent than that of the
strikers who were denied reinstatement.
So is there an unfair labor practice where the employer, although
authorized by the Court of Industrial Relations to dismiss the employees
who participated in an illegal strike, dismissed only the leaders of the
strikers, such dismissal being evidence of discrimination against those
dismissed and constituting a waiver of the employer's right to dismiss the
striking employees and a condonation of the fault committed by them."
(Carlos and Fernando, Labor and Social Legislation, p. 62, citing Phil. Air
Lines, Inc. v. Phil. Air Lines Emloyees Association, L-8197, Oct. 31, 1958.)
It is noteworthy that perhaps in an anticipatory effort to exculpate themselves from
charges of discrimination in the readmission of strikers returning to work the
respondents delegated the power to readmit to a committee. But the respondent Olbes

had chosen Vicente Abella, chief of the personnel records section, and Ramon Garcia,
assistant corporate secretary, to screen the unionists reporting back to work. It is not
difficult to imagine that these two employees having been involved in unpleasant
incidents with the picketers during the strike were hostile to the strikers. Needless to
say, the mere act of placing in the hands of employees hostile to the strikers the power of
reinstatement, is a form of discrimination in rehiring.
Delayed reinstatement is a form of discrimination in rehiring, as is having
the machinery of reinstatement in the hands of employees hostile to the
strikers, and reinstating a union official who formerly worked in a unionized
plant, to a job in another mill, which was imperfectly organized. (Morabe,
The Law on Strikes, p. 473, citing Sunshine Mining Co., 7 NLRB 1252;
Cleveland Worsted Mills, 43 NLRB 545; emphasis supplied.)
Equally significant is the fact that while the management and the members of the
screening committee admitted the discrimination committed against the strikers, they
tossed back and around to each other the responsibility for the discrimination. Thus, Garcia
admitted that in exercising for the management the authority to screen the returning
employees, the committee admitted the non-strikers but refused readmission to the
strikers (tsn., Feb. 6, 1962, pp. 15-19, 23-29). Vicente Abella, chairman of the
management's screening committee, while admitting the discrimination, placed the blame
therefor squarely on the management (tsn., Sept. 20, 1960, pp. 7-8, 14-18). But the
management, speaking through the respondent Olbes, head of the Companies, disclaimed
responsibility for the discrimination. He testified that "The decision whether to accept or
not an employee was left in the hands of that committee that had been empowered to look
into all cases of the strikers." (tsn., Sept. 6, 1962, p. 19.)
Of course, the respondents through Ramon Garcia tried to explain the basis for such
discrimination by testifying that strikers whose participation in any alleged misconduct
during the picketing was not serious in nature were readmissible, while those whose
participation was serious were not. (tsn., Aug. 4, 1961, pp. 48-49, 56). But even this
distinction between acts of slight misconduct and acts of serious misconduct which the
respondents contend was the basis for either reinstatement or discharge, is completely
shattered upon a cursory examination of the evidence on record. For with the exception of
Pascual Esquillo whose dismissal sent to the other strikers cited the alleged commission by
them of simple "acts of misconduct."
III. Anent the third assignment of error, the record shows that not a single dismissed striker
was given the opportunity to defend himself against the supposed charges against him. As
earlier mentioned, when the striking employees reported back for work on June 2, 1958,
the respondents refused to readmit them unless they first secured the necessary
clearances; but when all, except three, were able to secure and subsequently present the
required clearances, the respondents still refused to take them back. Instead, several of
them later received letters from the respondents in the following stereotyped tenor:
This will confirm the termination of your employment with the Insular LifeFGU Insurance Group as of 2 June 1958.

The termination of your employment was due to the fact that you
committed acts of misconduct while picketing during the last strike.
Because this may not constitute sufficient cause under the law to
terminate your employment without pay, we are giving you the amount of
P1,930.32 corresponding to one-half month pay for every year of your
service in the Group Company.
Kindly acknowledge receipt of the check we are sending herewith.
Very truly yours,
(Sgd.) JOSE M. OLBES
President, Insurance Life
Acting President, FGU.
The respondents, however, admitted that the alleged "acts of misconduct" attributed to
the dismissed strikers were the same acts with which the said strikers were charged before
the fiscal's office and the courts. But all these charges except three were dropped or
dismissed.
Indeed, the individual cases of dismissed officers and members of the striking unions do
not indicate sufficient basis for dismissal.
Emiliano Tabasondra, vice-president of the petitioner FGU Insurance Group Workers &
Employees Association-NATU, was refused reinstatement allegedly because he did not
report for duty on June 2, 1958 and, hence, had abandoned his office. But the
overwhelming evidence adduced at the trial and which the respondents failed to rebut,
negates the respondents' charge that he had abandoned his job. In his testimony,
corroborated by many others, Tabasondra particularly identified the management men to
whom he and his group presented themselves on June 2, 1958. He mentioned the
respondent Olbes' secretary, De Asis, as the one who received them and later directed
them when Olbes refused them an audience to Felipe Enage, the Companies'
personnel manager. He likewise categorically stated that he and his group went to see
Enage as directed by Olbes' secretary. If Tabasondra were not telling the truth, it would
have been an easy matter for the respondents to produce De Asis and Enage who
testified anyway as witnesses for the respondents on several occasions to rebut his
testimony. The respondents did nothing of the kind. Moreover, Tabasondra called on June
21, 1958 the respondents' attention to his non-admission and asked them to inform him of
the reasons therefor, but instead of doing so, the respondents dismissed him by their letter
dated July 10, 1958. Elementary fairness required that before being dismissed for cause,
Tabasondra be given "his day in court."
At any rate, it has been held that mere failure to report for work after notice to return, does
not constitute abandonment nor bar reinstatement. In one case, the U.S. Supreme Court
held that the taking back of six of eleven men constituted discrimination although the five
strikers who were not reinstated, all of whom were prominent in the union and in the strike,

reported for work at various times during the next three days, but were told that there
were no openings. Said the Court:
... The Board found, and we cannot say that its finding is unsupported,
that, in taking back six union men, the respondent's officials discriminated
against the latter on account of their union activities and that the excuse
given that they did not apply until after the quota was full was an
afterthought and not the true reason for the discrimination against them.
(NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 Sup. Ct. 904, 82
L. Ed. 1381) (Mathews, Labor Relations and the Law, p. 725, 728)
The respondents' allegation that Tabasondra should have returned after being refused
readmission on June 2, 1958, is not persuasive. When the employer puts off reinstatement
when an employee reports for work at the time agreed, we consider the employee relieved
from the duty of returning further.
Sixto Tongos was dismissed allegedly because he revealed that despite the fact that the
Companies spent more than P80,000 for the vacation trips of officials, they refused to
grant union demands; hence, he betrayed his trust as an auditor of the Companies. We do
not find this allegation convincing. First, this accusation was emphatically denied by Tongos
on the witness stand. Gonzales, president of one of the respondent Companies and one of
the officials referred to, took a trip abroad in 1958. Exchange controls were then in force,
and an outgoing traveller on a combined business and vacation trip was allowed by the
Central Bank, per its Circular 52 (Notification to Authorized Agent Banks) dated May 9,
1952, an allocation of $1,000 or only P2,000, at the official rate of two pesos to the dollar,
as pocket money; hence, this was the only amount that would appear on the books of the
Companies. It was only on January 21, 1962, per its Circular 133 (Notification to Authorized
Agent Banks), that the Central Bank lifted the exchange controls. Tongos could not
therefore have revealed an amount bigger than the above sum. And his competence in
figures could not be doubted considering that he had passed the board examinations for
certified public accountants. But assuming arguendo that Tongos indeed revealed the true
expenses of Gonzales' trip which the respondents never denied or tried to
disprove his statements clearly fall within the sphere of a unionist's right to discuss and
advertise the facts involved in a labor dispute, in accordance with section 9(a)(5) of
Republic Act 875 which guarantees the untramelled exercise by striking employees of the
right to give "publicity to the existence of, or the fact involved in any labor dispute,
whether by advertising, speaking, patrolling or by any method not involving fraud or
violence." Indeed, it is not only the right, it is as well the duty, of every unionist to
advertise the facts of a dispute for the purpose of informing all those affected thereby. In
labor disputes, the combatants are expected to expose the truth before the public to justify
their respective demands. Being a union man and one of the strikers, Tongos was expected
to reveal the whole truth on whether or not the respondent Companies were justified in
refusing to accede to union demands. After all, not being one of the supervisors, he was
not a part of management. And his statement, if indeed made, is but an expression of free
speech protected by the Constitution.

Free speech on both sides and for every faction on any side of the labor
relation is to me a constitutional and useful right. Labor is free ... to turn its
publicity on any labor oppression, substandard wages, employer
unfairness, or objectionable working conditions. The employer, too, should
be free to answer and to turn publicity on the records of the leaders of the
unions which seek the confidence of his men ... (Concurring opinion of
Justice Jackson in Thomas v. Collins, 323 U.S. 516, 547, 65 Sup. Ct. 315, 89
L. Ed. 430.) (Mathews, Labor Relations and the Law, p. 591.)
The respondents also allege that in revealing certain confidential information, Tongos
committed not only a betrayal of trust but also a violation of the moral principles and
ethics of accountancy. But nowhere in the Code of Ethics for Certified Public Accountants
under the Revised Rules and Regulations of the Board of Accountancy formulated in 1954,
is this stated. Moreover, the relationship of the Companies with Tongos was that of an
employer and not a client. And with regard to the testimonies of Juan Raymundo and
Antolin Carillo, both vice-presidents of the Trust Insurance Agencies, Inc. about the alleged
utterances made by Tongos, the lower court should not have given them much weight. The
firm of these witnesses was newly established at that time and was still a "general agency"
of the Companies. It is not therefore amiss to conclude that they were more inclined to
favor the respondents rather than Tongos.
Pacifico Ner, Paulino Bugay, Jose Garcia, Narciso Dao, Vicente Alsol and Hermenigildo
Ramirez, opined the lower court, were constructively dismissed by non-readmission
allegedly because they not only prevented Ramon Garcia, assistant corporate secretary,
and Vicente Abella, chief of the personnel records section of the Companies, from entering
the Companies' premises on May 21, 1958, but they also caused bruises and abrasions on
Garcia's chest and forehead acts considered inimical to the interest of the respondents.
The Unions, upon the other hand, insist that there is complete lack of evidence that Ner
took part in pushing Garcia; that it was Garcia who elbowed his way through the picket
lines and therefore Ner shouted "Close up," which the picketers did; and that Garcia tossed
Paulino Bugay's placard and a fight ensued between them in which both suffered injuries.
But despite these conflicting versions of what actually happened on May 21, 1958, there
are grounds to believe that the picketers are not responsible for what
happened.lwph1.t The picketing on May 21, 1958, as reported in the police blotter,
was peaceful (see Police blotter report, exh. 3 in CA-G.R. No. 25991-R of the Court of
Appeals, where Ner was acquitted). Moreover, although the Companies during the strike
were holding offices at the Botica Boie building at Escolta, Manila; Tuason Building at San
Vicente Street, Manila; and Ayala, Inc. offices at Makati, Rizal, Garcia, the assistant
corporate secretary, and Abella, the chief of the personnel records section, reported for
work at the Insular Life Building. There is therefore a reasonable suggestion that they were
sent to work at the latter building to create such an incident and have a basis for filing
criminal charges against the petitioners in the fiscal's office and applying for injunction
from the court of first instance. Besides, under the circumstances the picketers were not
legally bound to yield their grounds and withdraw from the picket lines. Being where the
law expects them to be in the legitimate exercise of their rights, they had every reason to
defend themselves and their rights from any assault or unlawful transgression. Yet the
police blotter, about adverted to, attests that they did not resort to violence.

The heated altercations and occasional blows exchanged on the picket line do not affect or
diminish the right to strike. Persuasive on this point is the following commentary: .
We think it must be conceded that some disorder is unfortunately quite usual in any
extensive or long drawn out strike. A strike is essentially a battle waged with
economic weapons. Engaged in it are human beings whose feelings are stirred to the
depths. Rising passions call forth hot words. Hot words lead to blows on the picket
line. The transformation from economic to physical combat by those engaged in the
contest is difficult to prevent even when cool heads direct the fight. Violence of this
nature, however much it is to be regretted, must have been in the contemplation of
the Congress when it provided in Sec. 13 of Act 29 USCA Sec. 163, that nothing
therein should be construed so as to interfere with or impede or diminish in any way
the right to strike. If this were not so, the rights afforded to employees by the Act
would indeed be illusory. We accordingly recently held that it was not intended by
the Act that minor disorders of this nature would deprive a striker of the possibility of
reinstatement. (Republic Steel Corp. v. N. L. R. B., 107 F2d 472, cited in Mathews,
Labor Relations and the Law, p. 378)
Hence the incident that occurred between Ner, et al. and Ramon Garcia was but a
necessary incident of the strike and should not be considered as a bar to reinstatement.
Thus it has been held that:
Fist-fighting between union and non-union employees in the midst of a strike is no bar to
reinstatement. (Teller, Labor Disputes and Collective Bargaining, Vol. II, p.
855 citing Stackpole Carbon, Co. 6 NLRB 171, enforced 105 F2d 167.)
Furthermore, assuming that the acts committed by the strikers were transgressions of law,
they amount only to mere ordinary misdemeanors and are not a bar to reinstatement.
In cases involving misdemeanors the board has generally held that unlawful acts are not
bar to reinstatement. (Teller, Labor Disputes and Collective Bargaining, Id., p.
854, citing Ford Motor Company, 23 NLRB No. 28.)
Finally, it is not disputed that despite the pendency of criminal charges against non-striking
employees before the fiscal's office, they were readily admitted, but those strikers who had
pending charges in the same office were refused readmission. The reinstatement of the
strikers is thus in order.
[W]here the misconduct, whether in reinstating persons equally guilty with
those whose reinstatement is opposed, or in other ways, gives rise to the
inference that union activities rather than misconduct is the basis of his
[employer] objection, the Board has usually required reinstatement."
(Teller, supra, p. 853, citing the Third Annual Report of NLRB [1938], p.
211.)

Lastly, the lower Court justified the constructive dismissal of Florencio Ibarra allegedly
because he committed acts inimical to the interest of the respondents when, as president
of the FGU Workers and Employees Association-NATU, he advised the strikers that they
could use force and violence to have a successful picket and that picketing was precisely
intended to prevent the non-strikers and company clients and customers from entering the
Companies' buildings. Even if this were true, the record discloses that the picket line had
been generally peaceful, and that incidents happened only when management men made
incursions into and tried to break the picket line. At any rate, with or without the advice of
Ibarra, picketing is inherently explosive. For, as pointed out by one author, "The picket line
is an explosive front, charged with the emotions and fierce loyalties of the unionmanagement dispute. It may be marked by colorful name-calling, intimidating threats or
sporadic fights between the pickets and those who pass the line." (Mathews, Labor
Relations and the Law, p. 752). The picket line being the natural result of the respondents'
unfair labor practice, Ibarra's misconduct is at most a misdemeanor which is not a bar to
reinstatement. Besides, the only evidence presented by the Companies regarding Ibarra's
participation in the strike was the testimony of one Rodolfo Encarnacion, a former member
of the board of directors of the petitioner FGU Insurance Group Workers and Employees
Union-NATU, who became a "turncoat" and who likewise testified as to the union activities
of Atty. Lacsina, Ricardo Villaruel and others (annex C, Decision, p. 27) another matter
which emphasizes the respondents' unfair labor practice. For under the circumstances,
there is good ground to believe that Encarnacion was made to spy on the actvities of the
union members. This act of the respondents is considered unjustifiable interference in the
union activities of the petitioners and is unfair labor practice.
It has been held in a great number of decisions at espionage by an employer of
union activities, or surveillance thereof, are such instances of interference, restraint
or coercion of employees in connection with their right to organize, form and join
unions as to constitute unfair labor practice.
... "Nothing is more calculated to interfere with, restrain and coerce employees in the
exercise of their right to self-organization than such activity even where no
discharges result. The information obtained by means of espionage is in valuable to
the employer and can be used in a variety of cases to break a union." The unfair
labor practice is committed whether the espionage is carried on by a professional
labor spy or detective, by officials or supervisory employees of the employer, or by
fellow employees acting at the request or direction of the employer, or an exemployee..." (Teller, Labor Disputes and Collective Bargaining, Vol. II, pp. 765-766,
and cases cited.) .
IV. The lower court should have ordered the reinstatement of the officials and members of
the Unions, with full back wages from June 2, 1958 to the date of their actual
reinstatement to their usual employment. Because all too clear from the factual and
environmental milieu of this case, coupled with settled decisional law, is that the Unions
went on strike because of the unfair labor practices committed by the respondents, and
that when the strikers reported back for work upon the invitation of the respondents
they were discriminatorily dismissed. The members and officials of the Unions therefore
are entitled to reinstatement with back pay.

[W]here the strike was induced and provoked by improper conduct on the
part of an employer amounting to an 'unfair labor practice,' the strikers are
entitled to reinstatement with back pay. (Rothenberg on Labor Relations, p.
418.)
[A]n employee who has been dismissed in violation of the provisions of the
Act is entitled to reinstatement with back pay upon an adjudication that
the discharge was illegal." (Id., citingWaterman S. S. Corp. v. N. L. R. B.,
119 F2d 760; N. L. R. B. v. Richter's Bakery, 140 F2d 870; N. L. R. B. v.
Southern Wood Preserving Co., 135 F. 2d 606; C. G. Conn, Ltd. v. N. L. R. B.,
108 F2d 390; N. L. R. B. v. American Mfg. Co., 106 F2d 61; N. L. R. B. v.
Kentucky Fire Brick Co., 99 F2d 99.)
And it is not a defense to reinstatement for the respondents to allege that the positions of
these union members have already been filled by replacements.
[W]here the employers' "unfair labor practice" caused or contributed to the
strike or where the 'lock-out' by the employer constitutes an "unfair labor
practice," the employer cannot successfully urge as a defense that the
striking or lock-out employees position has been filled by replacement.
Under such circumstances, if no job sufficiently and satisfactorily
comparable to that previously held by the aggrieved employee can be
found, the employer must discharge the replacement employee, if
necessary, to restore the striking or locked-out worker to his old or
comparable position ... If the employer's improper conduct was an initial
cause of the strike, all the strikers are entitled to reinstatement and the
dismissal of replacement employees wherever necessary; ... . (Id., p. 422
and cases cited.)
A corollary issue to which we now address ourselves is, from what date should the backpay
payable to the unionists be computed? It is now a settled doctrine that strikers who are
entitled to reinstatement are not entitled to back pay during the period of the strike, even
though it is caused by an unfair labor practice. However, if they offer to return to work
under the same conditions just before the strike, the refusal to re-employ or the imposition
of conditions amounting to unfair labor practice is a violation of section 4(a) (4) of the
Industrial Peace Act and the employer is liable for backpay from the date of the offer
(Cromwell Commercial Employees and Laborers Union vs. Court of Industrial Relations, L19778, Decision, Sept. 30, 1964, 12 SCRA 124; Id., Resolution on motion for
reconsideration, 13 SCRA 258; see also Mathews, Labor Relations and the Law, p. 730 and
the cited cases). We have likewise ruled that discriminatorily dismissed employees must
receive backpay from the date of the act of discrimination, that is, from the date of their
discharge (Cromwell Commercial Employees and Laborers Union vs. Court of Industrial
Relations, supra).
The respondents notified the petitioner strikers to report back for work on June 2, 1958,
which the latter did. A great number of them, however, were refused readmission because
they had criminal charges against them pending before the fiscal's office, although non-

strikers who were also facing criminal indictments were readily readmitted. These strikers
who were refused readmission on June 2, 1958 can thus be categorized as discriminatorily
dismissed employees and are entitled to backpay from said date. This is true even with
respect to the petitioners Jose Pilapil, Paulino Bugay, Jr. and Jose Garcia, Jr. who were found
guilty only of misdemeanors which are not considered sufficient to bar reinstatement
(Teller, Labor Disputes and Collective Bargaining, p. 854), especially so because their
unlawful acts arose during incidents which were provoked by the respondents' men.
However, since the employees who were denied readmission have been out of the service
of the Companies (for more than ten years) during which they may have found other
employment or other means of livelihood, it is only just and equitable that whatever they
may have earned during that period should be deducted from their back wages to mitigate
somewhat the liability of the company, pursuant to the equitable principle that no one is
allowed to enrich himself at the expense of another (Macleod & Co. of the Philippines v.
Progressive Federation of Labor, 97 Phil. 205 [1955]).
The lower court gave inordinate significance to the payment to and acceptance by the
dismissed employees of separation pay. This Court has ruled that while employers may be
authorized under Republic Act 1052 to terminate employment of employees by serving the
required notice, or, in the absence thereof, by paying the required compensation, the said
Act may not be invoked to justify a dismissal prohibited by law, e.g., dismissal for union
activities.
... While Republic Act No. 1052 authorizes a commercial establishment to terminate
the employment of its employee by serving notice on him one month in advance, or,
in the absence thereof, by paying him one month compensation from the date of the
termination of his employment, such Act does not give to the employer a blanket
authority to terminate the employment regardless of the cause or purpose behind
such termination. Certainly, it cannot be made use of as a cloak to circumvent a final
order of the court or a scheme to trample upon the right of an employee who has
been the victim of an unfair labor practice. (Yu Ki Lam, et al. v. Nena Micaller, et al., 99
Phil. 904 [1956].)
Finally, we do not share the respondents' view that the findings of fact of the Court of
Industrial Relations are supported by substantial and credible proof. This Court is not
therefore precluded from digging deeper into the factual milieu of the case (Union of
Philippine Education Employees v. Philippine Education Company, 91 Phil. 93; Lu Do & Lu
Ym Corporation v. Philippine-Land-Air-Sea Labor Union, 11 SCRA 134 [1964]).
V. The petitioners (15 of them) ask this Court to cite for contempt the respondent Presiding
Judge Arsenio Martinez of the Court of Industrial Relations and the counsels for the private
respondents, on the ground that the former wrote the following in his decision subject of
the instant petition for certiorari, while the latter quoted the same on pages 90-91 of the
respondents' brief: .
... Says the Supreme Court in the following decisions:

In a proceeding for unfair labor practice, involving a determination as to

whether or not the acts of the employees concerned justified the adoption of
the employer of disciplinary measures against them, the mere fact that the
employees may be able to put up a valid defense in a criminal prosecution for
the same acts, does not erase or neutralize the employer's right to impose
discipline on said employees. For it is settled that not even the acquittal of an
employee of the criminal charge against him is a bar to the employer's right
to impose discipline on its employees, should the act upon which the criminal
charged was based constitute nevertheless an activity inimical to the
employer's interest... The act of the employees now under consideration may
be considered as a misconduct which is a just cause for dismissal. (Lopez, Sr.,
et al. vs. Chronicle Publication Employees Ass'n. et al., G.R. No. L-20179-81,
December 28, 1964.) (emphasis supplied)
The two pertinent paragraphs in the above-cited decision * which contained the
underscored portions of the above citation read however as follows:
Differently as regard the dismissal of Orlando Aquino and Carmelito Vicente, we are
inclined to uphold the action taken by the employer as proper disciplinary measure.
A reading of the article which allegedly caused their dismissal reveals that it really
contains an insinuation albeit subtly of the supposed exertion of political pressure by
the Manila Chronicle management upon the City Fiscal's Office, resulting in the nonfiling of the case against the employer. In rejecting the employer's theory that the
dismissal of Vicente and Aquino was justified, the lower court considered the article
as "a report of some acts and omissions of an Assistant Fiscal in the exercise of his
official functions" and, therefore, does away with the presumption of malice. This
being a proceeding for unfair labor practice, the matter should not have been viewed
or gauged in the light of the doctrine on a publisher's culpability under the Penal
Code. We are not here to determine whether the employees' act could stand criminal
prosecution, but only to find out whether the aforesaid act justifies the adoption by
the employer of disciplinary measure against them. This is not sustaining the ruling
that the publication in question is qualified privileged, but even on the assumption
that this is so, the exempting character thereof under the Penal Code does not
necessarily erase or neutralize its effect on the employer's interest which may
warrant employment of disciplinary measure. For it must be remembered that not
even the acquittal of an employee, of the criminal charges against him, is a bar to
the employer's right to impose discipline on its employees, should the act upon
which the criminal charges was based constitute nevertheless an activity inimical to
the employer's interest.
In the herein case, it appears to us that for an employee to publish his "suspicion,"
which actually amounts to a public accusation, that his employer is exerting political
pressure on a public official to thwart some legitimate activities on the employees,
which charge, in the least, would sully the employer's reputation, can be nothing but
an act inimical to the said employer's interest. And the fact that the same was made
in the union newspaper does not alter its deleterious character nor shield or protect
a reprehensible act on the ground that it is a union activity, because such end can

be achieved without resort to improper conduct or behavior. The act of the

employees now under consideration may be considered as a misconduct which is a
just cause for dismissal.** (Emphasis ours)
It is plain to the naked eye that the 60 un-underscored words of the paragraph quoted by
the respondent Judge do not appear in the pertinent paragraph of this Court's decision in L20179-81. Moreover, the first underscored sentence in the quoted paragraph starts with
"For it is settled ..." whereas it reads, "For it must be remembered ...," in this Court's
decision. Finally, the second and last underlined sentence in the quoted paragraph of the
respondent Judge's decision, appears not in the same paragraph of this Court's decision
where the other sentence is, but in the immediately succeeding paragraph.
This apparent error, however, does not seem to warrant an indictment for contempt
against the respondent Judge and the respondents' counsels. We are inclined to believe
that the misquotation is more a result of clerical ineptitude than a deliberate attempt on
the part of the respondent Judge to mislead. We fully realize how saddled with many
pending cases are the courts of the land, and it is not difficult to imagine that because of
the pressure of their varied and multifarious work, clerical errors may escape their notice.
Upon the other hand, the respondents' counsels have the prima facie right to rely on the
quotation as it appears in the respondent Judge's decision, to copy it verbatim, and to
incorporate it in their brief. Anyway, the import of the underscored sentences of the
quotation in the respondent Judge's decision is substantially the same as, and faithfully
reflects, the particular ruling in this Court's decision, i.e., that "[N]ot even the acquittal of
an employee, of the criminal charges against him, is a bar to the employer's right to
impose discipline on its employees, should the act upon which the criminal charges were
based constitute nevertheless an activity inimical to the employer's interest."
Be that as it may, we must articulate our firm view that in citing this Court's decisions and
rulings, it is the bounden duty of courts, judges and lawyers to reproduce or copy the same
word-for-word and punctuation mark-for-punctuation mark. Indeed, there is a salient and
salutary reason why they should do this. Only from this Tribunal's decisions and rulings do
all other courts, as well as lawyers and litigants, take their bearings. This is because the
decisions referred to in article 8 of the Civil Code which reads, "Judicial decisions applying
or interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines," are only those enunciated by this Court of last resort. We said in no uncertain
terms in Miranda, et al. vs. Imperial, et al. (77 Phil. 1066) that "[O]nly the decisions of this
Honorable Court establish jurisprudence or doctrines in this jurisdiction." Thus, ever
present is the danger that if not faithfully and exactly quoted, the decisions and rulings of
this Court may lose their proper and correct meaning, to the detriment of other courts,
lawyers and the public who may thereby be misled. But if inferior courts and members of
the bar meticulously discharge their duty to check and recheck their citations of authorities
culled not only from this Court's decisions but from other sources and make certain that
they are verbatim reproductions down to the last word and punctuation mark, appellate
courts will be precluded from acting on misinformation, as well as be saved precious time
in finding out whether the citations are correct.

Happily for the respondent Judge and the respondents' counsels, there was no substantial
change in the thrust of this Court's particular ruling which they cited. It is our view,
nonetheless, that for their mistake, they should be, as they are hereby, admonished to be
more careful when citing jurisprudence in the future. ACCORDINGLY, the decision of the
Court of Industrial Relations dated August 17, 1965 is reversed and set aside, and another
is entered, ordering the respondents to reinstate the dismissed members of the petitioning
Unions to their former or comparatively similar positions, with backwages from June 2,
1958 up to the dates of their actual reinstatements. Costs against the respondents.

and improvements, alleging that in the present case he is entitled thereto. Acting thereon,
the Court of Agrarian Relations, on November 18, 1965, issued an order for the issuance of
a writ of execution, stating that the judgment had become final and executory, and that
Del Rosario's claim for indemnity, if any, should be filed with said court for determination,
but cannot stop execution of said judgment. Del Rosario filed a motion for reconsideration
but this was denied by the same court on December 14, 1965. And on December 16, 1965,
the corresponding writ of execution was issued.
Petitioner Del Rosario then filed, on December 27, 1965, the present special civil action
herein.
Respondents, on January 4, 1966, were required by Us to answer the petition; and on
January 8, 1966, We issued a writ of preliminary injunction addressed:
To: Hon. Bienvenido Chingcuangco (reg.-Spl.-del.)
Judge, Court of Agrarian Relations
Cabanatuan City

G.R. No. L-25503

December 17, 1966

LEON DEL ROSARIO vs. CHINGCUANGCO,

The Provincial Sheriff of Nueva Ecija

(reg.-spl.-del.)
Cabanatuan City

BENGZON, J.P., J.:

stating:

This is a petition for certiorari with preliminary injunction principally assailing an order of
the Court of Agrarian Relations denying a motion to stay execution of its judgment
dispossessing the tenant until he is indemnified for alleged expenses and improvements.

NOW, THEREFORE, until further orders from this Court, You, your agents, your
representatives and/or any person or persons acting in your behalf are hereby
restrained from implementing the Writ of Execution dated December 16, 1965, in
CAR Cases Nos. 2652-NE-61 and 2902-NE-62 of the Court of Agrarian Relations of
Cabanatuan City entitled "Leon del Rosario, plaintiff, versus Tomas Imperio,
defendant."

As leasehold tenant, petitioner, Leon del Rosario, occupied a parcel of land owned by
respondent Tomas Imperio, situated in Cabocbocan Rizal, Nueva Ecija. Said land became
the subject matter of litigation between said parties before the Court of Agrarian Relations,
Fourth regional district, in CAR Cases Nos. 2652-NE '61 and 2902-NE '62. And on July 12,
1963, a decision was rendered therein, the dispositive portion running as follows:
WHEREFORE, judgment is hereby rendered: (1) ordering the ejectment of Leon del
Rosario from the landholding in question subject to Section 43 and Section 50,
paragraph (a), R.A. No. 1199, as amended by R.A. No. 2263; and(2) ordering Tomas
Imperio to pay Leon del Rosario the value of the excess rentals received by him for
the agricultural years 1961-62 and 1962-63.
Said judgment was affirmed in toto by the Court of Appeals on March 26, 1965.
Subsequently, on October 26, 1965, Imperio filed with the Court of Agrarian Relations a
motion for execution of the aforestated judgment. Del Rosario however opposed it, on the
ground that he has a right of retention over the land until he is indemnified for expenses

On January 20, 1966, respondents filed their answer. Further developments came by way
of two petitions for contempt: First, a petition filed by respondent Imperio dated February
5, 1966, to declare petitioner's counsel in direct contempt, on the alleged ground that in
his petition herein said lawyer cited a fictitious authority. Second, a petition filed by Del
Rosario, dated June 20, 1966, to cite for contempt respondent Imperio, and three nonparties, the Chief of Police of the Municipality of Rizal, Nueva Ecija (Eduardo Dumlao), and
policemen Remigio Baldonado and Romeo Miguel, for having allegedly sought to eject Del
Rosario from the land in question notwithstanding, this Court's preliminary injunction. To
this a supplementary petition for contempt was filed, dated July 25, 1966, alleging further
that with the full backing of said policemen, Imperio caused the plowing and harrowing of
the landholding and prevented Del Rosario from reaping the crops therein.
After the respective parties had filed their comments to the petitions for contempt, We
deferred their resolution until consideration of this case upon the merits.

At issue on the merits of this petition for certiorari is the proper interpretation or
application of Section 43 of Republic Act 1199 (Agricultural Tenancy Act) which provides:
SEC. 43. Rights and Obligations of Tenant-Lessee.With the creation of the
tenancy relationship arising out of the contract between the landholder-lessor and
tenant-lessee, the latter shall have the right to enter the premises of the land, and
to the adequate and peaceful enjoyment thereof. He shall have the right to work
the land according to his best judgment, provided the manner and method of
cultivation and harvest are in accordance with proven farm practices. Upon
termination of the relationship, he shall be entitled to one-half of the value of the
improvements made by him, provided they are reasonable and adequate to the
purposes of the lease. (Emphasis supplied)
in relation to Section 1 of Rule 15 of the Rules of the Court of Agrarian Relations, stating:
Rule 15.Writ of Execution.
Section 1. Requisites for Issuance of Writ of Execution in Case of Final Judgment
Ejecting Tenant.In cases where the dispossession is authorized by final judgment
no writ of execution shall issue unless upon certification of the corresponding Judge
that the tenant has been fully indemnified of his claim under Section 22 of Republic
Act No. 1199 in case of share tenancy or under Section 43 thereof in case of
leasehold tenancy.
It is the position of respondents that Section 43 of Republic Act 1199 merely grants the
tenant the right to recover one-half of the value of improvements he made on the land,
without giving him any right of retention over the land until he is so reimbursed. As to
Section 1 of Rule 15 of the Rules of the Court of Agrarian Relations, they contend that the
same had been superseded with the advent of the Agricultural Land Reform Code (R.A.
3844), effective August 8, 1963, which replaced the Rules of the Court of Agrarian
Relations with the Rules of Court (Sec. 115, R.A. 3844). And, they emphasize that there can
be no vested right on procedure, arguing that petitioner's right under the former Rules of
the Court of Agrarian Relations cannot be anything more than procedural.
There is no merit to the view that Section 1 of Rule 15 of the Rules of the Court of Agrarian
Relations is not applicable in this case for having been abrogated with the enactment of
the Agricultural Land Reform Code. Said Code, it is true, provides that the Court of Agrarian
Relations shall be governed by the Rules of Court. (Sec. 155, R.A. 3844). And neither the
Rules of Court then obtaining nor the present Rules of Court contain a similar provision
requiring payment to the tenant of one-half of the value of his improvements before there
can be execution of a judgment dispossessing him. Nonetheless, since the Rules of Court
were applied to the Court of Agrarian Relations only on August 8, 1963, pursuant to
Republic Act 3844 as aforestated, its effectiveness to pending cases as of that time, such
as the instant case, should follow the norm set forth in Rule 133 therein; "These rules . . .
shall govern all cases brought after they take effect, and also all further proceedings in
cases then pending, except to the extent that in the opinion of the court their application

would not be feasible or would work injustice, in which event the former procedure shall
apply."
Should it turn out that indeed petitioner tenant had made improvements on the
landholding, a point not for Us now to decide then Section 43 of Republic Act 1199
clearly gives him the right to one-half of their value, thereby imposing upon the landholder
dispossessing him the correlative duty of paying the same. The rule prevailing during the
pendency of this case in the Court of Agrarian Relations required that this account be
settled before any judgment of ejectment can be executed. It is therefore not difficult to
see that to apply the Rules of Court, which do not contain a similar provision, would be
unjust to the tenant. In this event, the former procedure is to be followed, namely, Section
1 of Rule 15 of the Rules of the Court of Agrarian Relations.
Respondent Imperio's argument that petitioner failed to show that improvements were in
fact made, should be addressed to the Court of Agrarian Relations. The point is that the
tenant's claim for reimbursement under Section 43 of Republic Act 1199 should first be
threshed out, determined and resolved before the tenant can be dispossessed by writ of
execution. This recourse is but in accordance with the policy of the law to protect the rights
of tenants upon the principle of social justice (Sec. 2, Republic Act 1199).
The petition for contempt filed by respondent Imperio charges petitioner's counsel of
having cited a fictitious case and a non-existing ruling. The record bears out that
petitioner's counsel alleged in page 5 of the petition forcertiorari herein, thus:
Section 1, Rule 15, Rules of the Courts of Agrarian Relations, predicated on Section
43 of Republic Act No. 1199, as amended, supra, has been upheld to be valid by
this Honorable Tribunal so that now no writ of execution can be issued unless it is
complied with first (Paz Ongsiako, Inc. vs. Celestino Abad, et al., G.R. No. L121447). This ruling, in effect, created and established or confirmed the prior
substantial right of a tenant to indemnification before he is finally ejected from his
holding.
Petitioner's counsel obviously had in mind this Court's decision in Paz Ongsiako,
Inc. vs. Celestino Abad, L-12147, July 30, 1957. Although he cites as docket
number L-121447 instead of L-12147, the same is plainly but a slight typographical
mistake not sufficient to place him in contempt, especially because the names of
the parties were given correctly. As to said counsel's interpretation of this Court's
decision in said case, or of what the ruling therein "in effect" created, established
or confirmed, the same are mere arguments fully within the bounds of earnest
debate, rather than a deception urged upon this Court. The first petition for
contempt is therefore without merit.
The second petition for contempt is against respondent Imperio and three others, not
parties herein: the Chief of Police of the Municipality of Rizal, Nueva Ecija, Eduardo
Dumlao; policeman Remigio Baldonado; and, policeman Romeo Miguel. Said petition as
well as the supplemental petition thereto, allege that respondent Imperio, with the aid of

the three law enforcement officers, disturbed petitioner in the possession and cultivation of
the land, on June 13, 1966; caused its plowing and harrowing on June 27, 1966; and
prevented the petitioner from reaping the second rice crop on July 16, 1966. The foregoing
acts, if true, would be a ground for contempt only if at the time this Court's writ of
preliminary injunction was issued, respondent court's writ of execution had not yet been
carried out. From the sheriff's return,1 however, it would appear that respondent Imperio
was placed in possession of the land by virtue of the writ of execution as of December 18,
1965. This Court's preliminary injunction, restraining implementation of the writ of
execution, was issued only on January 8, 1966. Respondents, therefore, may not be held in
contempt. Nonetheless, the premature implementation of the writ of execution being
illegal, petitioner should be restored to peaceful and undisturbed possession of the
landholding, until his claim for payment of improvements (one-half of their value) is settled
by respondent court.
WHEREFORE, respondent court's orders of November 18, 1965 and December 14, 1965,
denying petitioner's motion to stay execution pending settlement of his claim for one-half
of the value of alleged improvements, as well as the writ of execution already issued, are
hereby set aside; respondents are ordered to restore petitioner to the landholding, and to
proceed according to Section 1 of Rule 15 of the former Rules of the Court of Agrarian
Relations, by first determining petitioner's claim for improvements under Section 43 of
Republic Act 1199, before issuing a writ of execution for the said tenant's dispossession.
The petitions for contempt are denied for lack of merit. No costs. So ordered.

continuing with the hearing of Civil Case No. 67400 of said Court, and from enforcing a
restraining order issued therein on November 16, 1966, as well as to annul an order of
respondent Judge, in the same case, dated December 9, 1966.
It appears that, on or about December 2, 1964, the Surigao Mineral Reservations Board
hereinafter referred to as the Board issued an Invitation to Bid, on May 12, 1965, for the
exploration and development of mineral deposits in a portion of the Surigao Mineral
Reservation, in the province of Surigao, more particularly described in said Invitation to
Bid; that, in response thereto, two (2) bids were filed, namely one (1) by the Mac-Arthur
International Minerals Co. hereinafter referred to as the Company and the other by
Benguet Consolidated, Inc.; that, these two (2) bids were referred by the Board to an
Evaluation Committee created therefor; that both bids were later rejected by the Board,
upon consideration of the report thereon of said Committee; and that, a reconsideration,
sought by the Company, of the action thus taken by the Board was, thereafter, denied by
the latter.
Thereupon, or on September 1, 1966, the Company filed, with the Court of First Instance of
Manila, the petition in said Case No. 67400, against the Board and the Executive Secretary
as the officer "responsible for the approval and authorization of public biddings and the
acceptance, handling and processing of all bids" seemingly to annul the proceedings
before said Board leading to the rejection of the bid of the Company and to prevent the
Board, the Evaluation Committee and the Executive Secretary from taking such steps as
may impair the rights that the Company claims to have acquired in consequence of its bid.
After requiring petitioners herein, as respondents in said Case No. 67400, to answer the
petition therein, or on November 16, 1966, respondent Judge issued a restraining order
directing petitioners herein, their agents and/or representatives, to refrain from executing
the acts adverted to above. On December 1, 1966, petitioners herein filed their answer to
said Case No. 67400, with a motion to dismiss and an opposition to the writ of preliminary
injunction prayed for by the Company. Acting on said motion, on December 9, 1966,
respondent Judge denied the same and set the case for hearing.
Presently, or on January 14, 1967, petitioners herein commenced the present action
against respondent Judge and the Company, for the purpose indicated at the beginning of
this decision. On January 19, 1967, this Court required respondents herein to file their
answer, not a motion to dismiss, as well as issued the writ of preliminary, injunction prayed
for by the petitioners. Subsequently, respondents filed their answer and later moved to
dissolve or amend said writ of preliminary injunction; but we denied the motion.

G.R. No. L-27072

July 31, 1968

SURIGAO MINERAL RESERVATION BOARD vs HON. GAUDENCIO CLORIBEL

CONCEPCION, C. J.:
Original action for certiorari and prohibition, with preliminary injunction, to restrain the
Honorable Gaudencio Cloribel, as Judge of the Court of First Instance of Manila, from

The main issue in this case is whether or not respondent Judge had committed a grave
abuse of discretion, amounting to excess of jurisdiction, in issuing the restraining order
dated November 16, 1966. This question, in turn, hinges on whether or not the records of
said Case No. 67400 disclose that the Company has no cause of action against petitioners
herein.

In this connection, it should be noted that the petition in said case is predicated like the
answer in the case at bar upon the theory that the Invitation to Bid issued by the Board
constitutes an "offer", which was unqualifiedly accepted by the bid submitted by the
Company, thereby resulting according to the latter's contention in both cases into a
perfected contract, which is binding upon the Board, thereby imposing upon the same the
obligation to implement said alleged contract and to refrain from entering into negotiations
or doing anything tending to defeat or impair the supposed rights of the Company under
said contract.
This theory is, however, absolutely untenable. An Invitation to Bid, is not an "offer", which,
if accepted, matures into a contract. In the language of Article 1326 of our Civil Code,
"advertisements for bidders are simply invitations to make proposals and the advertiser is
not bound to accept the highest or lowest bidder, unless the contrary appears."1 The
Company does not even allege that "the contrary appears."
Worse, still, the Invitation to Bid, issued by the Board, provided, inter alia, that "the
Government reserves the right to reject any and all bids, waive any defect of form or
accept such bid as may be deemed most advantageous to it." In other words, acceptance
by the Board of a given bid is necessary for a contract to exist between the Board or the
Government and any bidder, regardless of the terms and conditions of his bid. This
reservation of the "right" of the Board "to reject any and all bids," is one of the terms and
conditions of the Invitation to Bid which the Company has accepted and, hence, binds the
same.2 As a consequence, it is now in estoppel to object to or assail the exercise of said
"right" by the Board.3
Then, contrary to the conclusions made in the pleadings of the Company, the same has
not, in fact, adhered faithfully to the terms and conditions of said Invitation to Bid. Indeed,
the latter explicitly declares that "bids not accompanied by bid bonds will be rejected."
Admittedly, the bid of the Company had been submitted without the requisite bond.
It is thus manifest, from the records of said Case No. 67400, that the Company had no
cause of action against petitioners herein and that, accordingly, respondent Judge
committed a grave abuse of discretion, amounting to excess of jurisdiction, in issuing its
restraining order of November 16, 1966, and its order of December 9, 1966, refusing, in
effect, to set aside said order of November 16, 1966. 4
WHEREFORE, said orders of respondent Judge dated November 16, and December 9, 1966,
are hereby annulled and the writ of preliminary injunction issued in the present case made
permanent, with costs against respondent, Mac-Arthur International Minerals Company.
Writ granted. It is so ordered.

G.R. No. L-27654 February 18, 1970 IN RE: ALMACEN

CASTRO, J.:
Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's Certificate of
Title," filed on September 25, 1967, in protest against what he therein asserts is "a great
injustice committed against his client by this Supreme Court." He indicts this Court, in his
own phrase, as a tribunal "peopled by men who are calloused to our pleas for justice, who
ignore without reasons their own applicable decisions and commit culpable violations of
the Constitution with impunity." His client's he continues, who was deeply aggrieved by
this Court's "unjust judgment," has become "one of the sacrificial victims before the altar
of hypocrisy." In the same breath that he alludes to the classic symbol of justice, he
ridicules the members of this Court, saying "that justice as administered by the present
members of the Supreme Court is not only blind, but also deaf and dumb." He then vows to
argue the cause of his client "in the people's forum," so that "the people may know of the
silent injustice's committed by this Court," and that "whatever mistakes, wrongs and
injustices that were committed must never be repeated." He ends his petition with a
prayer that
... a resolution issue ordering the Clerk of Court to receive the certificate of the
undersigned attorney and counsellor-at-law IN TRUST with reservation that at any time in
the future and in the event we regain our faith and confidence, we may retrieve our title
to assume the practice of the noblest profession.
He reiterated and disclosed to the press the contents of the aforementioned petition. Thus,
on September 26, 1967, the Manila Times published statements attributed to him, as
follows:
Vicente Raul Almacen, in an unprecedented petition, said he did it to expose the
tribunal's"unconstitutional and obnoxious" practice of arbitrarily denying petitions or
appeals without any reason.
Because of the tribunal's "short-cut justice," Almacen deplored, his client was
condemned to pay P120,000, without knowing why he lost the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this petition, "where our
Supreme Court is composed of men who are calloused to our pleas for justice, who
ignore without reason their own applicable decisions and commit culpable violations
of the Constitution with impunity.

xxx xxx xxx

He expressed the hope that by divesting himself of his title by which he earns his
living, the present members of the Supreme Court "will become responsive to all
cases brought to its attention without discrimination, and will purge itself of those
unconstitutional and obnoxious "lack of merit" or "denied resolutions. (Emphasis
supplied)

running of the period to appeal, and, consequently, the appeal was perfected out of
time.
Atty. Almacen moved to reconsider this resolution, urging that Manila Surety & Fidelity Co.
is not decisive. At the same time he filed a pleading entitled "Latest decision of the
Supreme Court in Support of Motion for Reconsideration," citing Republic of the Philippines
vs. Gregorio A. Venturanza, L-20417, decided by this Court on May 30, 1966, as the
applicable case. Again, the Court of Appeals denied the motion for reconsideration, thus:

Atty. Almacen's statement that

... our own Supreme Court is composed of men who are calloused to our
pleas of [sic] justice, who ignore their own applicable decisions and commit
culpable violations of the Constitution with impunity
was quoted by columnist Vicente Albano Pacis in the issue of the Manila Chronicle of
September 28, 1967. In connection therewith, Pacis commented that Atty. Almacen had
"accused the high tribunal of offenses so serious that the Court must clear itself," and that
"his charge is one of the constitutional bases for impeachment."
The genesis of this unfortunate incident was a civil case entitled Virginia Y. Yaptinchay vs.
Antonio H. Calero,1 in which Atty. Almacen was counsel for the defendant. The trial court,
after due hearing, rendered judgment against his client. On June 15, 1966 Atty. Almacen
received a copy of the decision. Twenty days later, or on July 5, 1966, he moved for its
reconsideration. He served on the adverse counsel a copy of the motion, but did not notify
the latter of the time and place of hearing on said motion. Meanwhile, on July 18, 1966, the
plaintiff moved for execution of the judgment. For "lack of proof of service," the trial court
denied both motions. To prove that he did serve on the adverse party a copy of his first
motion for reconsideration, Atty. Almacen filed on August 17, 1966 a second motion for
reconsideration to which he attached the required registry return card. This second motion
for reconsideration, however, was ordered withdrawn by the trial court on August 30, 1966,
upon verbal motion of Atty. Almacen himself, who, earlier, that is, on August 22, 1966, had
already perfected the appeal. Because the plaintiff interposed no objection to the record on
appeal and appeal bond, the trial court elevated the case to the Court of Appeals.
But the Court of Appeals, on the authority of this Court's decision in Manila Surety &
Fidelity Co., Inc. vs. Batu Construction & Co., L-16636, June 24, 1965, dismissed the
appeal, in the following words:
Upon consideration of the motion dated March 27, 1967, filed by plaintiff-appellee
praying that the appeal be dismissed, and of the opposition thereto filed by
defendant-appellant; the Court RESOLVED TO DISMISS, as it hereby dismisses, the
appeal, for the reason that the motion for reconsideration dated July 5, 1966 (pp. 90113, printed record on appeal) does not contain a notice of time and place of hearing
thereof and is, therefore, a useless piece of paper (Manila Surety & Fidelity Co., Inc. vs.
Batu Construction & Co., G.R. No. L-16636, June 24, 1965), which did not interrupt the

Before this Court for resolution are the motion dated May 9, 1967 and the supplement
thereto of the same date filed by defendant- appellant, praying for reconsideration of
the resolution of May 8, 1967, dismissing the appeal.
Appellant contends that there are some important distinctions between this case and
that of Manila Surety and Fidelity Co., Inc. vs. Batu Construction & Co., G.R. No. L16636, June 24, 1965, relied upon by this Court in its resolution of May 8, 1967.
Appellant further states that in the latest case,Republic vs. Venturanza, L-20417, May
30, 1966, decided by the Supreme Court concerning the question raised by appellant's
motion, the ruling is contrary to the doctrine laid down in the Manila Surety & Fidelity
Co., Inc. case.
There is no substantial distinction between this case and that of Manila Surety &
Fidelity Co.
In the case of Republic vs. Venturanza, the resolution denying the motion to dismiss
the appeal, based on grounds similar to those raised herein was issued on November
26, 1962, which was much earlier than the date of promulgation of the decision in the
Manila Surety Case, which was June 24, 1965. Further, the resolution in the
Venturanza case was interlocutory and the Supreme Court issued it "without prejudice
to appellee's restoring the point in the brief." In the main decision in said case (Rep.
vs. Venturanza the Supreme Court passed upon the issue sub silencio presumably
because of its prior decisions contrary to the resolution of November 26, 1962, one of
which is that in the Manila Surety and Fidelity case. Therefore Republic vs.
Venturanza is no authority on the matter in issue.
Atty. Almacen then appealed to this Court by certiorari. We refused to take the case, and
by minute resolution denied the appeal. Denied shortly thereafter was his motion for
reconsideration as well as his petition for leave to file a second motion for reconsideration
and for extension of time. Entry of judgment was made on September 8, 1967. Hence, the
second motion for reconsideration filed by him after the Said date was ordered expunged
from the records.
It was at this juncture that Atty. Almacen gave vent to his disappointment by filing his
"Petition to Surrender Lawyer's Certificate of Title," already adverted to a pleading that
is interspersed from beginning to end with the insolent contemptuous, grossly disrespectful

and derogatory remarks hereinbefore reproduced, against this Court as well as its
individual members, a behavior that is as unprecedented as it is unprofessional.
Nonetheless we decided by resolution dated September 28, 1967 to withhold action on his
petition until he shall have actually surrendered his certificate. Patiently, we waited for him
to make good his proffer. No word came from him. So he was reminded to turn over his
certificate, which he had earlier vociferously offered to surrender, so that this Court could
act on his petition. To said reminder he manifested "that he has no pending petition in
connection with Case G.R. No. L-27654, Calero vs. Yaptinchay, said case is now final and
executory;" that this Court's September 28, 1967 resolution did not require him to do
either a positive or negative act; and that since his offer was not accepted, he "chose to
pursue the negative act."
In the exercise of its inherent power to discipline a member of the bar for contumely and
gross misconduct, this Court on November 17, 1967 resolved to require Atty. Almacen to
show cause "why no disciplinary action should be taken against him." Denying the charges
contained in the November 17 resolution, he asked for permission "to give reasons and
cause why no disciplinary action should be taken against him ... in an open and public
hearing." This Court resolved (on December 7) "to require Atty. Almacen to state, within
five days from notice hereof, his reasons for such request, otherwise, oral argument shall
be deemed waived and incident submitted for decision." To this resolution he manifested
that since this Court is "the complainant, prosecutor and Judge," he preferred to be heard
and to answer questions "in person and in an open and public hearing" so that this Court
could observe his sincerity and candor. He also asked for leave to file a written explanation
"in the event this Court has no time to hear him in person." To give him the ampliest
latitude for his defense, he was allowed to file a written explanation and thereafter was
heard in oral argument.
His written answer, as undignified and cynical as it is unchastened, offers -no apology. Far
from being contrite Atty. Almacen unremittingly repeats his jeremiad of lamentations, this
time embellishing it with abundant sarcasm and innuendo. Thus:

Your respondent has no intention of disavowing the statements mentioned in his

petition. On the contrary, he refirms the truth of what he stated, compatible with his
lawyer's oath that he will do no falsehood, nor consent to the doing of any in court.
But he vigorously DENY under oath that the underscored statements contained in the
CHARGE are insolent, contemptuous, grossly disrespectful and derogatory to the
individual members of the Court; that they tend to bring the entire Court, without
justification, into disrepute; and constitute conduct unbecoming of a member of the
noble profession of law.
xxx xxx xxx
Respondent stands four-square that his statement is borne by TRUTH and has been
asserted with NO MALICE BEFORE AND AFTER THOUGHT but mainly motivated with
the highest interest of justice that in the particular case of our client, the members
have shown callousness to our various pleas for JUSTICE, our pleadings will bear us on
this matter, ...
xxx xxx xxx
To all these beggings, supplications, words of humility, appeals for charity, generosity,
fairness, understanding, sympathy and above all in the highest interest of JUSTICE,
what did we get from this COURT? One word, DENIED, with all its hardiness and
insensibility. That was the unfeeling of the Court towards our pleas and prayers, in
simple word, it is plain callousness towards our particular case.
xxx xxx xxx
Now that your respondent has the guts to tell the members of the Court that
notwithstanding the violation of the Constitution, you remained unpunished, this
Court in the reverse order of natural things, is now in the attempt to inflict
punishment on your respondent for acts he said in good faith.

At the start, let me quote passages from the Holy Bible, Chapter 7, St. Matthew:
"Do not judge, that you may not be judged. For with what judgment you judge, you
shall be judged, and with what measure you measure, it shall be measured to you.
But why dost thou see the speck in thy brother's eye, and yet dost not consider the
beam in thy own eye? Or how can thou say to thy brother, "Let me cast out the
speck from thy eye"; and behold, there is a beam in thy own eye? Thou hypocrite,
first cast out the beam from thy own eye, and then thou wilt see clearly to cast out
the speck from thy brother's eyes."

Did His Honors care to listen to our pleadings and supplications for JUSTICE,
CHARITY, GENEROSITY and FAIRNESS? Did His Honors attempt to justify their
stubborn denial with any semblance of reason, NEVER. Now that your respondent is
given the opportunity to face you, he reiterates the same statement with
emphasis, DID YOU? Sir. Is this. the way of life in the Philippines today, that even
our own President, said: "the story is current, though nebulous ,is to its truth, it
is still being circulated that justice in the Philippines today is not what it is used to
be before the war. There are those who have told me frankly and brutally that
justice is a commodity, a marketable commodity in the Philippines."

"Therefore all that you wish men to do to you, even to do you also to them: for this
is the Law and the Prophets."

xxx xxx xxx

xxx xxx xxx

We condemn the SIN, not the SINNER. We detest the ACTS, not the ACTOR. We
attack the decision of this Court, not the members. ... We were provoked. We were
compelled by force of necessity. We were angry but we waited for the finality of the
decision. We waited until this Court has performed its duties. We never interfered
nor obstruct in the performance of their duties. But in the end, after seeing that the
Constitution has placed finality on your judgment against our client and sensing
that you have not performed your duties with "circumspection, carefulness,
confidence and wisdom", your Respondent rise to claim his God given right to
speak the truth and his Constitutional right of free speech.
xxx xxx xxx
The INJUSTICES which we have attributed to this Court and the further violations
we sought to be prevented is impliedly shared by our President. ... .
What has been abhored and condemned, are the very things that were applied to us.
Recalling Madam Roland's famous apostrophe during the French revolution, "O Liberty,
what crimes are committed in thy name", we may dare say, "O JUSTICE, what technicalities
are committed in thy name' or more appropriately, 'O JUSTICE, what injustices are
committed in thy name."
We must admit that this Court is not free from commission of any abuses, but who
would correct such abuses considering that yours is a court of last resort. A strong
public opinion must be generated so as to curtail these abuses.
xxx xxx xxx
The phrase, Justice is blind is symbolize in paintings that can be found in all courts
and government offices. We have added only two more symbols, that it is also deaf
and dumb. Deaf in the sense that no members of this Court has ever heard our cries
for charity, generosity, fairness, understanding sympathy and for justice; dumb in
the sense, that inspite of our beggings, supplications, and pleadings to give us
reasons why our appeal has been DENIED, not one word was spoken or given ... We
refer to no human defect or ailment in the above statement. We only describe the.
impersonal state of things and nothing more.

But overlooking, for the nonce, the vituperative chaff which he claims is not intended as a
studied disrespect to this Court, let us examine the grain of his grievances.
He chafes at the minute resolution denial of his petition for review. We are quite aware of
the criticisms2 expressed against this Court's practice of rejecting petitions by minute
resolutions. We have been asked to do away with it, to state the facts and the law, and to
spell out the reasons for denial. We have given this suggestion very careful thought. For we
know the abject frustration of a lawyer who tediously collates the facts and for many weary
hours meticulously marshalls his arguments, only to have his efforts rebuffed with a terse
unadorned denial. Truth to tell, however, most petitions rejected by this Court are utterly
frivolous and ought never to have been lodged at all.3 The rest do exhibit a first-impression
cogency, but fail to, withstand critical scrutiny. By and large, this Court has been generous
in giving due course to petitions forcertiorari.
Be this as it may, were we to accept every case or write a full opinion for every petition we
reject, we would be unable to carry out effectively the burden placed upon us by the
Constitution. The proper role of the Supreme Court, as Mr. Chief Justice Vinson of the U.S.
Supreme Court has defined it, is to decide "only those cases which present questions
whose resolutions will have immediate importance beyond the particular facts and parties
involved." Pertinent here is the observation of Mr. Justice Frankfurter in Maryland vs.
Baltimore Radio Show, 94 L. ed 562, 566:
A variety of considerations underlie denials of the writ, and as to the same petition
different reasons may read different justices to the same result ... .
Since there are these conflicting, and, to the uninformed, even confusing reasons for
denying petitions for certiorari, it has been suggested from time to time that the
Court indicate its reasons for denial. Practical considerations preclude. In order that
the Court may be enabled to discharge its indispensable duties, Congress has placed
the control of the Court's business, in effect, within the Court's discretion. During the
last three terms the Court disposed of 260, 217, 224 cases, respectively, on their
merits. For the same three terms the Court denied, respectively, 1,260, 1,105,1,189
petitions calling for discretionary review. If the Court is to do its work it would not be
feasible to give reasons, however brief, for refusing to take these cases. The tune
that would be required is prohibitive. Apart from the fact that as already indicated
different reasons not infrequently move different members of the Court in concluding
that a particular case at a particular time makes review undesirable.

xxx xxx xxx

As we have stated, we have lost our faith and confidence in the members of this
Court and for which reason we offered to surrender our lawyer's certificate, IN TRUST
ONLY. Because what has been lost today may be regained tomorrow. As the offer was
intended as our self-imposed sacrifice, then we alone may decide as to when we
must end our self-sacrifice. If we have to choose between forcing ourselves to have
faith and confidence in the members of the Court but disregard our Constitution and
to uphold the Constitution and be condemned by the members of this Court, there is
no choice, we must uphold the latter.

Six years ago, in Novino, et al., vs. Court of Appeals, et al., 1,21098, May 31, 1963 (60 O.G.
8099), this Court, through the then Chief Justice Cesar Bengzon, articulated its considered
view on this matter. There, the petitioners counsel urged that a "lack of merit" resolution
violates Section 12 of Article VIII of the Constitution. Said Chief Justice Bengzon:
In connection with identical short resolutions, the same question has been raised
before; and we held that these "resolutions" are not "decisions" within the above
constitutional requirement. They merely hold that the petition for review should not

be entertained in view of the provisions of Rule 46 of the Rules of Court; and even
ordinary lawyers have all this time so understood it. It should be remembered that a
petition to review the decision of the Court of Appeals is not a matter of right, but of
sound judicial discretion; and so there is no need to fully explain the court's denial.
For one thing, the facts and the law are already mentioned in the Court of Appeals'
opinion.
By the way, this mode of disposal has as intended helped the Court in
alleviating its heavy docket; it was patterned after the practice of the U.S. Supreme
Court, wherein petitions for review are often merely ordered "dismissed".
We underscore the fact that cases taken to this Court on petitions for certiorari from the
Court of Appeals have had the benefit of appellate review. Hence, the need for compelling
reasons to buttress such petitions if this Court is to be moved into accepting them. For it is
axiomatic that the supervisory jurisdiction vested upon this Court over the Court of
Appeals is not intended to give every losing party another hearing. This axiom is implied in
sec. 4 of Rule 45 of the Rules of Court which recites:
Review of Court of Appeals' decision discretionary.A review is not a matter of right
but of sound judicial discretion, and will be granted only when there are special and
important reasons therefor. The following, while neither controlling nor fully
measuring the court's discretion, indicate the character of reasons which will be
considered:
(a) When the Court of Appeals has decided a question of substance, not theretofore
determined by the Supreme Court, nor has decided it in a way probably not in
accord with law or with the applicable decisions of the Supreme Court;
(b) When the Court of Appeals has so far departed from the accepted and usual
course of judicial proceedings, or so far sanctioned such departure by the lower
court, as to call for the exercise of the power of supervision.
Recalling Atty. Almacen's petition for review, we found, upon a thoroughgoing examination
of the pleadings. and records, that the Court of Appeals had fully and correctly considered
the dismissal of his appeal in the light of the law and applicable decisions of this Court. Far
from straying away from the "accepted and usual course of judicial proceedings," it traced
the procedural lines etched by this Court in a number of decisions. There was, therefore,
no need for this Court to exercise its supervisory power.
As a law practitioner who was admitted to the Bar as far back as 1941, Atty. Almacen knew
or ought to have known that for a motion for reconsideration to stay the running of
the period of appeal, the movant must not only serve a copy of the motion upon the
adverse party (which he did), but also notify the adverse party of the time and place of
hearing (which admittedly he did not). This rule was unequivocally articulated in Manila
Surety & Fidelity vs. Batu Construction & Co., supra:

The written notice referred to evidently is prescribed for motions in general by Rule
15, Sections 4 and 5 (formerly Rule 26), which provides that such notice shall state
the time, and place of hearing and shall be served upon all the Parties concerned at
least three days in advance. And according to Section 6 of the same Rule no motion
shall be acted upon by the court without proof of such notice. Indeed it has been
held that in such a case the motion is nothing but a useless piece of paper
(Philippine National Bank v. Damasco, I,18638, Feb. 28, 1963; citing Manakil v.
Revilla, 42 Phil. 81; Roman Catholic Bishop of Lipa v. Municipality of Unisan, 41 Phil.
866; and Director of Lands vs. Sanz, 45 Phil. 117). The reason is obvious: Unless the
movant sets the time and place of hearing the Court would have no way to
determine whether that party agrees to or objects to the motion, and if he objects,
to hear him on his objection, since the Rules themselves do not fix any period within
which he may file his reply or opposition.
If Atty. Almacen failed to move the appellate court to review the lower court's judgment, he
has only himself to blame. His own negligence caused the forfeiture of the remedy of
appeal, which, incidentally, is not a matter of right. To shift away from himself the
consequences of his carelessness, he looked for a "whipping boy." But he made sure that
he assumed the posture of a martyr, and, in offering to surrender his professional
certificate, he took the liberty of vilifying this Court and inflicting his exacerbating rancor
on the members thereof. It would thus appear that there is no justification for his scurrilous
and scandalous outbursts.
Nonetheless we gave this unprecedented act of Atty. Almacen the most circumspect
consideration. We know that it is natural for a lawyer to express his dissatisfaction each
time he loses what he sanguinely believes to be a meritorious case. That is why lawyers
are given 'wide latitude to differ with, and voice their disapproval of, not only the courts'
rulings but, also the manner in which they are handed down.
Moreover, every citizen has the right to comment upon and criticize the actuations of
public officers. This right is not diminished by the fact that the criticism is aimed at a
judicial authority,4 or that it is articulated by a lawyer.5 Such right is especially recognized
where the criticism concerns a concluded litigation, 6 because then the court's actuations
are thrown open to public consumption.7 "Our decisions and all our official actions," said
the Supreme Court of Nebraska,8 "are public property, and the press and the people have
the undoubted right to comment on them, criticize and censure them as they see fit.
Judicial officers, like other public servants, must answer for their official actions before the
chancery of public opinion."
The likely danger of confusing the fury of human reaction to an attack on one's integrity,
competence and honesty, with "imminent danger to the administration of justice," is the
reason why courts have been loath to inflict punishment on those who assail their
actuations.9 This danger lurks especially in such a case as this where those who Sit as
members of an entire Court are themselves collectively the aggrieved parties.
Courts thus treat with forbearance and restraint a lawyer who vigorously assails their
actuations. 10 For courageous and fearless advocates are the strands that weave durability

into the tapestry of justice. Hence, as citizen and officer of the court, every lawyer is
expected not only to exercise the right, but also to consider it his duty to expose the
shortcomings and indiscretions of courts and judges. 11
Courts and judges are not sacrosanct. 12 They should and expect critical evaluation of their
performance. 13 For like the executive and the legislative branches, the judiciary is rooted
in the soil of democratic society, nourished by the periodic appraisal of the citizens whom
it is expected to serve.
Well-recognized therefore is the right of a lawyer, both as an officer of the court and as a
citizen, to criticize in properly respectful terms and through legitimate channels the acts of
courts and judges. The reason is that
An attorney does not surrender, in assuming the important place accorded to him in
the administration of justice, his right as a citizen to criticize the decisions of the
courts in a fair and respectful manner, and the independence of the bar, as well as
of the judiciary, has always been encouraged by the courts. (In re Ades, 6 F Supp.
487) .
Criticism of the courts has, indeed, been an important part of the traditional work of the
bar. In the prosecution of appeals, he points out the errors of lower courts. In written for
law journals he dissects with detachment the doctrinal pronouncements of courts and
fearlessly lays bare for -all to see that flaws and inconsistence" of the doctrines (Hill v.
Lyman, 126 NYS 2d 286). As aptly stated by Chief Justice Sharswood in Ex Parte Steinman,
40 Am. Rep. 641:
No class of the community ought to be allowed freer scope in the expansion or
publication of opinions as to the capacity, impartiality or integrity of judges than
members of the bar. They have the best opportunities for observing and forming a
correct judgment. They are in constant attendance on the courts. ... To say that an
attorney can only act or speak on this subject under liability to be called to account
and to be deprived of his profession and livelihood, by the judge or judges whom he
may consider it his duty to attack and expose, is a position too monstrous to be
entertained. ... .
Hence, as a citizen and as Officer of the court a lawyer is expected not only to exercise the
right, but also to consider it his duty to avail of such right. No law may abridge this right.
Nor is he "professionally answerable for a scrutiny into the official conduct of the judges,
which would not expose him to legal animadversion as a citizen." (Case of Austin, 28 Am.
Dee. 657, 665).
Above all others, the members of the bar have the beat Opportunity to become
conversant with the character and efficiency of our judges. No class is less likely to
abuse the privilege, as no other class has as great an interest in the preservation of
an able and upright bench. (State Board of Examiners in Law v. Hart, 116 N.W. 212,
216)

To curtail the right of a lawyer to be critical of the foibles of courts and judges is to seal the
lips of those in the best position to give advice and who might consider it their duty to
speak disparagingly. "Under such a rule," so far as the bar is concerned, "the merits of a
sitting judge may be rehearsed, but as to his demerits there must be profound silence."
(State v. Circuit Court, 72 N.W. 196)
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not
spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on
the One hand, and abuse and slander of courts and the judges thereof, on the other.
Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is
Such a misconduct that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties which are not
mere flux and ferment. His investiture into the legal profession places upon his shoulders
no burden more basic, more exacting and more imperative than that of respectful behavior
toward the courts. He vows solemnly to conduct himself "with all good fidelity ... to the
courts; 14 and the Rules of Court constantly remind him "to observe and maintain the
respect due to courts of justice and judicial officers." 15 The first canon of legal ethics
enjoins him "to maintain towards the courts a respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the maintenance of its supreme
importance."
As Mr. Justice Field puts it:
... the obligation which attorneys impliedly assume, if they do not by express
declaration take upon themselves, when they are admitted to the Bar, is not merely to
be obedient to the Constitution and laws, but to maintain at all times the respect due
to courts of justice and judicial officers. This obligation is not discharged by merely
observing the rules of courteous demeanor in open court, but includes abstaining out
of court from all insulting language and offensive conduct toward judges personally for
their judicial acts. (Bradley, v. Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to the
orderly administration of justice. Hence, in the assertion of their clients' rights, lawyers
even those gifted with superior intellect are enjoined to rein up their tempers.
The counsel in any case may or may not be an abler or more learned lawyer than the
judge, and it may tax his patience and temper to submit to rulings which he regards
as incorrect, but discipline and self-respect are as necessary to the orderly
administration of justice as they are to the effectiveness of an army. The decisions of
the judge must be obeyed, because he is the tribunal appointed to decide, and the bar
should at all times be the foremost in rendering respectful submission. (In Re Scouten,
40 Atl. 481)
We concede that a lawyer may think highly of his intellectual endowment That is his
privilege. And he may suffer frustration at what he feels is others' lack of it. That is his

misfortune. Some such frame of mind, however, should not be allowed to harden into
a belief that he may attack a court's decision in words calculated to jettison the timehonored aphorism that courts are the temples of right. (Per Justice Sanchez in Rheem
of the Philippines vs. Ferrer, L-22979. June 26, 1967)
In his relations with the courts, a lawyer may not divide his personality so as to be an
attorney at one time and a mere citizen at another. Thus, statements made by an attorney
in private conversations or communications 16 or in the course of a political, campaign, 17 if
couched in insulting language as to bring into scorn and disrepute the administration of
justice, may subject the attorney to disciplinary action.
Of fundamental pertinence at this juncture is an examination of relevant parallel
precedents.
1. Admitting that a "judge as a public official is neither sacrosanct nor immune to public
criticism of his conduct in office," the Supreme Court of Florida in State v. Calhoon, 102 So.
2d 604, 608, nevertheless declared that "any conduct of a lawyer which brings into scorn
and disrepute the administration of justice demands condemnation and the application of
appropriate penalties," adding that:
It would be contrary to, every democratic theory to hold that a judge or a
court is beyond bona fide comments and criticisms which do not exceed
the bounds of decency and truth or which are not aimed at. the destruction
of public confidence in the judicial system as such. However, when the
likely impairment of the administration of justice the direct product of false
and scandalous accusations then the rule is otherwise.
2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for putting out and
circulating a leaflet entitled "JUSTICE??? IN OTUMWA," which accused a municipal judge of
having committed judicial error, of being so prejudiced as to deny his clients a fair trial on
appeal and of being subject to the control of a group of city officials. As a prefatory
statement he wrote: "They say that Justice is BLIND, but it took Municipal Judge Willard to
prove that it is also DEAF and DUMB!" The court did not hesitate to find that the leaflet
went much further than the accused, as a lawyer, had a right to do.
The entire publication evidences a desire on the part Of the accused to
belittle and besmirch the court and to bring it into disrepute with the
general public.
3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California affirmed the two-year
suspension of an attorney who published a circular assailing a judge who at that time was
a candidate for re-election to a judicial office. The circular which referred to two decisions
of the judge concluded with a statement that the judge "used his judicial office to enable
-said bank to keep that money." Said the court:

We are aware that there is a line of authorities which place no limit to the criticism
members of the bar may make regarding the capacity, impartiality, or integrity of
the courts, even though it extends to the deliberate publication by the attorney
capable of correct reasoning of baseless insinuations against the intelligence and
integrity of the highest courts. See State Board, etc. v. Hart. 116 N.W. 212, 17 LRA
(N.S.) 585, 15 Ann Cas 197 and note: Ex parte Steinman 95 Pac. 220, 40 Am. Rep.
637. In the first case mentioned it was observed, for instance:
"It may be (although we do not so decide) that a libelous publication by an
attorney, directed against a judicial officer, could be so vile and of such a
nature as to justify the disbarment of its author."
Yet the false charges made by an attorney in that case were of graver character
than those made by the respondent here. But, in our view, the better rule is that
which requires of those who are permitted to enjoy the privilege of practicing law
the strictest observance at all times of the principles of truth, honesty and fairness,
especially in their criticism of the courts, to the end that the public confidence in
the due administration of justice be upheld, and the dignity and usefulness of the
courts be maintained. In re Collins, 81 Pac. 220.
4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an attorney, representing a
woman who had been granted a divorce, attacked the judge who set aside the decree on
bill of review. He wrote the judge a threatening letter and gave the press the story of a
proposed libel suit against the judge and others. The letter began:
Unless the record in In re Petersen v. Petersen is cleared up so that my
name is protected from the libel, lies, and perjury committed in the cases
involved, I shall be compelled to resort to such drastic action as the law
allows and the case warrants.
Further, he said: "However let me assure you I do not intend to allow such dastardly work
to go unchallenged," and said that he was engaged in dealing with men and not
irresponsible political manikins or appearances of men. Ordering the attorney's
disbarment, the Supreme Court of Illinois declared:
... Judges are not exempt from just criticism, and whenever there is proper
ground for serious complaint against a judge, it is the right and duty of a
lawyer to submit his grievances to the proper authorities, but the public
interest and the administration of the law demand that the courts should
have the confidence and respect of the people. Unjust criticism, insulting
language, and offensive conduct toward the judges personally by
attorneys, who are officers of the court, which tend to bring the courts and
the law into disrepute and to destroy public confidence in their integrity,
cannot be permitted. The letter written to the judge was plainly an attempt
to intimidate and influence him in the discharge of judicial functions, and
the bringing of the unauthorized suit, together with the write-up in the

Sunday papers, was intended and calculated to bring the court into
disrepute with the public.
5. In a public speech, a Rhode Island lawyer accused the courts of the state of being
influenced by corruption and greed, saying that the seats of the Supreme Court were
bartered. It does not appear that the attorney had criticized any of the opinions or
decisions of the Court. The lawyer was charged with unprofessional conduct, and was
ordered suspended for a period of two years. The Court said:
A calumny of that character, if believed, would tend to weaken the authority of the
court against whose members it was made, bring its judgments into contempt,
undermine its influence as an unbiased arbiter of the people's right, and interfere
with the administration of justice. ...
Because a man is a member of the bar the court will not, under the guise of
disciplinary proceedings, deprive him of any part of that freedom of speech which he
possesses as a citizen. The acts and decisions of the courts of this state, in cases
that have reached final determination, are not exempt from fair and honest
comment and criticism. It is only when an attorney transcends the limits of
legitimate criticism that he will be held responsible for an abuse of his liberty of
speech. We well understand that an independent bar, as well as independent court,
is always a vigilant defender of civil rights. In Re Troy, 111 Atl. 723. 725.
6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six months for
submitting to an appellate court an affidavit reflecting upon the judicial integrity of the
court from which the appeal was taken. Such action, the Court said, constitutes
unprofessional conduct justifying suspension from practice, notwithstanding that he fully
retracted and withdrew the statements, and asserted that the affidavit was the result of an
impulse caused by what he considered grave injustice. The Court said:
We cannot shut our eyes to the fact that there is a growing habit in the profession of
criticising the motives and integrity of judicial officers in the discharge of their
duties, and thereby reflecting on the administration of justice and creating the
impression that judicial action is influenced by corrupt or improper motives. Every
attorney of this court, as well as every other citizen, has the right and it is his duty,
to submit charges to the authorities in whom is vested the power to remove judicial
officers for any conduct or act of a judicial officer that tends to show a violation of
his duties, or would justify an inference that he is false to his trust, or has improperly
administered the duties devolved upon him; and such charges to the tribunal, if
based upon reasonable inferences, will be encouraged, and the person making them
protected. ... While we recognize the inherent right of an attorney in a case decided
against him, or the right of the Public generally, to criticise the decisions of the
courts, or the reasons announced for them, the habit of criticising the motives of
judicial officers in the performance of their official duties, when the proceeding is not
against the officers whose acts or motives are criticised, tends to subvert the
confidence of the community in the courts of justice and in the administration of
justice; and when such charges are made by officers of the courts, who are bound by

their duty to protect the administration of justice, the attorney making such charges
is guilty of professional misconduct.
7. In In Re Mitchell, 71 So. 467, a lawyer published this statement:
I accepted the decision in this case, however, with patience, barring possible
temporary observations more or less vituperative and finally concluded, that, as my
clients were foreigners, it might have been expecting too much to look for a decision
in their favor against a widow residing here.
The Supreme Court of Alabama declared that:
... the expressions above set out, not only transcend the bounds of propriety and
privileged criticism, but are an unwarranted attack, direct, or by insinuation and
innuendo, upon the motives and integrity of this court, and make out a prima
facie case of improper conduct upon the part of a lawyer who holds a license from
this court and who is under oath to demean himself with all good fidelity to the court
as well as to his client.
The charges, however, were dismissed after the attorney apologized to the Court.
8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney published in a
newspaper an article in which he impugned the motives of the court and its members to
try a case, charging the court of having arbitrarily and for a sinister purpose undertaken to
suspend the writ of habeas corpus. The Court suspended the respondent for 30 days,
saying that:
The privileges which the law gives to members of the bar is one most subversive of
the public good, if the conduct of such members does not measure up to the
requirements of the law itself, as well as to the ethics of the profession. ...
The right of free speech and free discussion as to judicial determination is of prime
importance under our system and ideals of government. No right thinking man
would concede for a moment that the best interest to private citizens, as well as to
public officials, whether he labors in a judicial capacity or otherwise, would be
served by denying this right of free speech to any individual. But such right does not
have as its corollary that members of the bar who are sworn to act honestly and
honorably both with their client and with the courts where justice is administered, if
administered at all, could ever properly serve their client or the public good by
designedly misstating facts or carelessly asserting the law. Truth and honesty of
purpose by members of the bar in such discussion is necessary. The health of a
municipality is none the less impaired by a polluted water supply than is the health
of the thought of a community toward the judiciary by the filthy wanton, and
malignant misuse of members of the bar of the confidence the public, through its
duly established courts, has reposed in them to deal with the affairs of the private
individual, the protection of whose rights he lends his strength and money to

maintain the judiciary. For such conduct on the part of the members of the bar the
law itself demands retribution not the court.
9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the filing of an affidavit by an
attorney in a pending action using in respect to the several judges the terms criminal
corrupt, and wicked conspiracies,," "criminal confederates," "colossal and confident
insolence," "criminal prosecution," "calculated brutality," "a corrupt deadfall," and similar
phrases, was considered conduct unbecoming of a member of the bar, and the name of
the erring lawyer was ordered stricken from the roll of attorneys.
10. In State Board of Examiners v. Hart, 116 N.W. 215, the erring attorney claimed that
greater latitude should be allowed in case of criticism of cases finally adjudicated than in
those pending. This lawyer wrote a personal letter to the Chief Justice of the Supreme
Court of Minnesota impugning both the intelligence and the integrity of the said Chief
Justice and his associates in the decisions of certain appeals in which he had been attorney
for the defeated litigants. The letters were published in a newspaper. One of the letters
contained this paragraph:
You assigned it (the property involved) to one who has no better right to it than the
burglar to his plunder. It seems like robbing a widow to reward a fraud, with the court
acting as a fence, or umpire, watchful and vigilant that the widow got no undue
advantage. ... The point is this: Is a proper motive for the decisions discoverable,
short of assigning to the court emasculated intelligence, or a constipation of morals
and faithlessness to duty? If the state bar association, or a committee chosen from
its rank, or the faculty of the University Law School, aided by the researches of its
hundreds of bright, active students, or if any member of the court, or any other
person, can formulate a statement of a correct motive for the decision, which shall
not require fumigation before it is stated, and quarantine after it is made, it will
gratify every right-minded citizen of the state to read it.
The Supreme Court of Minnesota, in ordering the suspension of the attorney for six
months, delivered its opinion as follows:
The question remains whether the accused was guilty of professional misconduct in
sending to the Chief Justice the letter addressed to him. This was done, as we have
found, for the very purpose of insulting him and the other justices of this court; and
the insult was so directed to the Chief Justice personally because of acts done by
him and his associates in their official capacity. Such a communication, so made,
could never subserve any good purpose. Its only effect in any case would be to
gratify the spite of an angry attorney and humiliate the officers so assailed. It would
not and could not ever enlighten the public in regard to their judicial capacity or
integrity. Nor was it an exercise by the accused of any constitutional right, or of any
privilege which any reputable attorney, uninfluenced by passion, could ever have
any occasion or desire to assert. No judicial officer, with due regard to his position,
can resent such an insult otherwise than by methods sanctioned by law; and for any
words, oral or written, however abusive, vile, or indecent, addressed secretly to the
judge alone, he can have no redress in any action triable by a jury. "The sending of a

libelous communication or libelous matter to the person defamed does not

constitute an actionable publication." 18 Am. & Eng. Enc. Law (2d Ed.) p. 1017. In
these respects the sending by the accused of this letter to the Chief Justice was
wholly different from his other acts charged in the accusation, and, as we have said,
wholly different principles are applicable thereto.
The conduct of the accused was in every way discreditable; but so far as he
exercised the rights of a citizen, guaranteed by the Constitution and sanctioned
by considerations of public policy, to which reference has been made, he was
immune, as we hold, from the penalty here sought to be enforced. To that extent
his rights as a citizen were paramount to the obligation which he had assumed as
an officer of this court. When, however he proceeded and thus assailed the Chief
Justice personally, he exercised no right which the court can recognize, but, on
the contrary, willfully violated his obligation to maintain the respect due to courts
and judicial officers. "This obligation is not discharged by merely observing the
rules of courteous demeanor in open court, but it includes abstaining out of court
from all insulting language and offensive conduct toward the judges personally
for their official acts."Bradley v. Fisher, 13 Wall. (U.S.) 355, 20 L. Ed. 646. And
there appears to be no distinction, as regards the principle involved, between the
indignity of an assault by an attorney upon a judge, induced by his official act,
and a personal insult for like cause by written or spoken words addressed to the
judge in his chambers or at his home or elsewhere. Either act constitutes
misconduct wholly different from criticism of judicial acts addressed or spoken to
others. The distinction made is, we think entirely logical and well sustained by
authority. It was recognized in Ex parte McLeod supra. While the court in that
case, as has been shown, fully sustained the right of a citizen to criticise rulings
of the court in actions which are ended, it held that one might be summarily
punished for assaulting a judicial officer, in that case a commissioner of the court,
for his rulings in a cause wholly concluded. "Is it in the power of any person," said
the court, "by insulting or assaulting the judge because of official acts, if only the
assailant restrains his passion until the judge leaves the building, to compel the
judge to forfeit either his own self-respect to the regard of the people by tame
submission to the indignity, or else set in his own person the evil example of
punishing the insult by taking the law in his own hands? ... No high-minded,
manly man would hold judicial office under such conditions."
That a communication such as this, addressed to the Judge personally,
constitutes professional delinquency for which a professional punishment may be
imposed, has been directly decided. "An attorney who, after being defeated in a
case, wrote a personal letter to the trial justice, complaining of his conduct and
reflecting upon his integrity as a justice, is guilty of misconduct and will be
disciplined by the court." Matter of Manheim 133 App. Div. 136, 99 N.Y. Supp. 87
The same is held in Re Griffin (City Ct.) 1 N.Y. 7 and in Re Wilkes (City Ct.) 3 N.Y. In
the latter case it appeared that the accused attorney had addressed a sealed
letter to a justice of the City Court of New York, in which it was stated, in
reference to his decision: "It is not law; neither is it common sense. The result is I
have been robbed of 80." And it was decided that, while such conduct was not a
contempt under the state, the matter should be "called to the attention of the

Supreme Court, which has power to discipline the attorney." "If," says the court,
"counsel learned in the law are permitted by writings leveled at the heads of
judges, to charge them with ignorance, with unjust rulings, and with robbery,
either as principals or accessories, it will not be long before the general public
may feel that they may redress their fancied grievances in like manner, and thus
the lot of a judge will be anything but a happy one, and the administration of
justice will fall into bad repute."
The recent case of Johnson v. State (Ala.) 44 South. 671, was in this respect much
the same as the case at bar. The accused, an attorney at law, wrote and mailed a
letter to the circuit judge, which the latter received by due course of mail, at his
home, while not holding court, and which referred in insulting terms to the
conduct of the judge in a cause wherein the accused had been one of the
attorneys. For this it was held that the attorney was rightly disbarred in having
"willfully failed to maintain respect due to him [the judge] as a judicial officer, and
thereby breached his oath as an attorney." As recognizing the same principle, and
in support of its application to the facts of this case, we cite the following: Ex
parte Bradley, 7 Wall (U.S.) 364, 19 L. Ed. 214; Beene v. State, 22 Ark.
149;Commonwealth v. Dandridge, 2 Va. Cas. 408; People v. Green, 7 Colo 237,
244, 3 Pac. 65, 374, 49 Am. Rep. 351; Smith's Appeal, 179 Pa. 14, 36 Atl. 134;
Scouten's Appeal, 186 Pa. 270, Atl. 481.
Our conclusion is that the charges against the accused have been so far
sustained as to make it our duty to impose such a penalty as may be sufficient
lesson to him and a suitable warning to others. ...
11. In Cobb v. United States, 172 F. 641, the court affirmed a lawyer's suspension for 18
months for publishing a letter in a newspaper in which he accused a judge of being under
the sinister influence of a gang that had paralyzed him for two years.
12. In In Re Graves, 221 Pac. 411, the court held that an attorney's unjustifiable attack
against the official acts and decisions of a judge constitutes "moral turpitude." There, the
attorney was disbarred for criticising not only the judge, but his decisions in general
claiming that the judge was dishonest in reaching his decisions and unfair in his general
conduct of a case.
13. In In Re Doss, 12 N.E. 2d 659, an attorney published newspaper articles after the trial
of cases, criticising the court in intemperate language. The invariable effect of this sort of
propaganda, said the court, is to breed disrespect for courts and bring the legal profession
into disrepute with the public, for which reason the lawyer was disbarred.
14. In State v. Grimes, 354 Pac. 2d 108, an attorney, dissatisfied with the loss of a case,
prepared over a period of years vicious attacks on jurists. The Oklahoma Supreme Court
declared that his acts involved such gross moral turpitude as to make him unfit as a
member of the bar. His disbarment was ordered, even though he expressed an intention to
resign from the bar.

The teaching derived from the above disquisition and impressive affluence of judicial
pronouncements is indubitable: Post-litigation utterances or publications, made by lawyers,
critical of the courts and their judicial actuations, whether amounting to a crime or not,
which transcend the permissible bounds of fair comment and legitimate criticism and
thereby tend to bring them into disrepute or to subvert public confidence in their integrity
and in the orderly administration of justice, constitute grave professional misconduct which
may be visited with disbarment or other lesser appropriate disciplinary sanctions by the
Supreme Court in the exercise of the prerogatives inherent in it as the duly constituted
guardian of the morals and ethics of the legal fraternity.
Of course, rarely have we wielded our disciplinary powers in the face of unwarranted
outbursts of counsel such as those catalogued in the above-cited jurisprudence. Cases of
comparable nature have generally been disposed of under the power of courts to punish
for contempt which, although resting on different bases and calculated to attain a different
end, nevertheless illustrates that universal abhorrence of such condemnable practices.
A perusal of the more representative of these instances may afford enlightenment.
1. In Salcedo vs. Hernandez, 61 Phil. 724, where counsel branded the denial of his motion
for reconsideration as "absolutely erroneous and constituting an outrage to the rigths of
the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls," this
Court, although conceding that
It is right and plausible that an attorney, in defending the cause and rights of his
client, should do so with all the fervor and energy of which he is capable, but it is
not, and never will be so for him to exercise said right by resorting to intimidation or
proceeding without the propriety and respect which the dignity of the courts
requires. The reason for this is that respect for the courts guarantees the stability of
their institution. Without such guaranty, said institution would be resting on a very
shaky foundation,
found counsel guilty of contempt inasmuch as, in its opinion, the statements made
disclosed
... an inexcusable disrespect of the authority of the court and an intentional
contempt of its dignity, because the court is thereby charged with no less than
having proceeded in utter disregard of the laws, the rights to the parties, and 'of the
untoward consequences, or with having abused its power and mocked and flouted
the rights of Attorney Vicente J. Francisco's client ... .
2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author of the Press Freedom Law,
reaching to, the imprisonment for contempt of one Angel Parazo, who, invoking said law,
refused to divulge the source of a news item carried in his paper, caused to be published in
i local newspaper a statement expressing his regret "that our High Tribunal has not only
erroneously interpreted said law, but it is once more putting in evidence the incompetency
or narrow mindedness of the majority of its members," and his belief that "In the wake of

so many blunders and injustices deliberately committed during these last years, ... the only
remedy to put an end to go much evil, is to change the members of the Supreme Court,"
which tribunal he denounced as "a constant peril to liberty and democracy" and "a far cry
from the impregnable bulwark of justice of those memorable times of Cayetano Arellano,
Victorino Mapa, Manuel Araullo and other learned jurists who were the honor and glory of
the Philippine Judiciary." He there also announced that one of the first measures he would
introduce in then forthcoming session of Congress would have for its object the complete
reorganization of the Supreme Court. Finding him in contempt, despite his avowals of good
faith and his invocation of the guarantee of free speech, this Court declared:
But in the above-quoted written statement which he caused to be published in the
press, the respondent does not merely criticize or comment on the decision of the
Parazo case, which was then and still is pending consideration by this Court upon
petition of Angel Parazo. He not only intends to intimidate the members of this Court
with the presentation of a bill in the next Congress, of which he is one of the
members, reorganizing the Supreme Court and reducing the number of Justices from
eleven, so as to change the members of this Court which decided the Parazo case,
who according to his statement, are incompetent and narrow minded, in order to
influence the final decision of said case by this Court, and thus embarrass or
obstruct the administration of justice. But the respondent also attacks the honesty
and integrity of this Court for the apparent purpose of bringing the Justices of this
Court into disrepute and degrading the administration. of justice ... .
To hurl the false charge that this Court has been for the last years committing
deliberately so many blunders and injustices, that is to say, that it has been deciding
in favor of Que party knowing that the law and justice is on the part of the adverse
party and not on the one in whose favor the decision was rendered, in many cases
decided during the last years, would tend necessarily to undermine the confidence
of the people in the honesty and integrity of the members of this Court, and
consequently to lower ,or degrade the administration of justice by this Court. The
Supreme Court of the Philippines is, under the Constitution, the last bulwark to which
the Filipino people may repair to obtain relief for their grievances or protection of
their rights when these are trampled upon, and if the people lose their confidence in
the honesty and integrity of the members of this Court and believe that they cannot
expect justice therefrom, they might be driven to take the law into their own hands,
and disorder and perhaps chaos might be the result. As a member of the bar and an
officer of the courts, Atty. Vicente Sotto, like any other, is in duty bound to uphold
the dignity and authority of this Court, to which he owes fidelity according to the
oath he has taken as such attorney, and not to promote distrust in the
administration of justice. Respect to the courts guarantees the stability of other
institutions, which without such guaranty would be resting on a very shaky
foundation.
Significantly, too, the Court therein hastened to emphasize that
... an attorney as an officer of the court is under special obligation to be respectful in
his conduct and communication to the courts; he may be removed from office or

stricken from the roll of attorneys as being guilty of flagrant misconduct (17 L.R.A.
[N.S.], 586, 594.)
3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against Alfonso Ponce Enrile, et
al., supra, where counsel charged this Court with having "repeatedly fallen" into ,the pitfall
of blindly adhering to its previous "erroneous" pronouncements, "in disregard of the law on
jurisdiction" of the Court of Industrial Relations, our condemnation of counsel's misconduct
was unequivocal. Articulating the sentiments of the Court, Mr. Justice Sanchez stressed:
As we look back at the language (heretofore quoted) employed in the motion for
reconsideration, implications there are which inescapably arrest attention. It speaks
of one pitfall into which this Court has repeatedly fallen whenever the jurisdiction of
the Court of Industrial Relations comes into question. That pitfall is the tendency of
this Court to rely on its own pronouncements in disregard of the law on jurisdiction.
It makes a sweeping charge that the decisions of this Court, blindly adhere to earlier
rulings without as much as making any reference to and analysis of the pertinent
statute governing the jurisdiction of the industrial court. The plain import of all these
is that this Court is so patently inept that in determining the jurisdiction of the
industrial court, it has committed error and continuously repeated that error to the
point of perpetuation. It pictures this Court as one which refuses to hew to the line
drawn by the law on jurisdictional boundaries. Implicit in the quoted statements is
that the pronouncements of this Court on the jurisdiction of the industrial court are
not entitled to respect. Those statements detract much from the dignity of and
respect due this Court. They bring into question the capability of the members
and some former members of this Court to render justice. The second paragraph
quoted yields a tone of sarcasm which counsel labelled as "so called" the "rule
against splitting of jurisdiction."
Similar thoughts and sentiments have been expressed in other cases
interest of brevity, need not now be reviewed in detail.

18

which, in the

Of course, a common denominator underlies the aforecited cases all of them involved
contumacious statements made in pleadings filed pending litigation. So that, in line with
the doctrinal rule that the protective mantle of contempt may ordinarily be invoked only
against scurrilous remarks or malicious innuendoes while a court mulls over a pending
case and not after the conclusion thereof, 19 Atty. Almacen would now seek to sidestep the
thrust of a contempt charge by his studied emphasis that the remarks for which he is now
called upon to account were made only after this Court had written finis to his appeal. This
is of no moment.
The rule that bars contempt after a judicial proceeding has terminated, has lost much of its
vitality. For sometime, this was the prevailing view in this jurisdiction. The first stir for a
modification thereof, however, came when, inPeople vs. Alarcon, 20 the then Chief Justice
Manuel V. Moran dissented with the holding of the majority, speaking thru Justice Jose P.
Laurel, which upheld the rule above-adverted to. A complete disengagement from the
settled rule was later to be made in In re Brillantes, 21 a contempt proceeding, where the
editor of the Manila Guardian was adjudged in contempt for publishing an editorial which

asserted that the 1944 Bar Examinations were conducted in a farcical manner after the
question of the validity of the said examinations had been resolved and the case closed.
Virtually, this was an adoption of the view expressed by Chief Justice Moran in his dissent
in Alarcon to the effect that them may still be contempt by publication even after a case
has been terminated. Said Chief Justice Moran in Alarcon:
A publication which tends to impede, obstruct, embarrass or influence the courts in
administering justice in a pending suit or proceeding, constitutes criminal contempt
which is 'summarily punishable by courts. A publication which tends to degrade the
courts and to destroy public confidence in them or that which tends to bring them in
any way into disrepute, constitutes likewise criminal contempt, and is equally
punishable by courts. What is sought, in the first kind of contempt, to be shielded
against the influence of newspaper comments, is the all-important duty of the courts
to administer justice in the decision of a pending case. In the second kind of
contempt, the punitive hand of justice is extended to vindicate the courts from any
act or conduct calculated to bring them into disfavor or to destroy public confidence
in them. In the first there is no contempt where there is no action pending, as there
is no decision which might in any way be influenced by the newspaper publication. In
the second, the contempt exists, with or without a pending case, as what is sought
to be protected is the court itself and its dignity. Courts would lose their utility if
public confidence in them is destroyed.
Accordingly, no comfort is afforded Atty. Almacen by the circumstance that his statements
and actuations now under consideration were made only after the judgment in his client's
appeal had attained finality. He could as much be liable for contempt therefor as if it had
been perpetrated during the pendency of the said appeal.
More than this, however, consideration of whether or not he could be held liable for
contempt for such post litigation utterances and actuations, is here immaterial. By the
tenor of our Resolution of November 17, 1967, we have confronted the situation here
presented solely in so far as it concerns Atty. Almacen's professional identity, his sworn
duty as a lawyer and his fitness as an officer of this Court, in the exercise of the
disciplinary power the morals inherent in our authority and duty to safeguard and ethics of
the legal profession and to preserve its ranks from the intrusions of unprincipled and
unworthy disciples of the noblest of callings. In this inquiry, the pendency or non-pendency
of a case in court is altogether of no consequence. The sole objective of this proceeding is
to preserve the purity of the legal profession, by removing or suspending a member whose
misconduct has proved himself unfit to continue to be entrusted with the duties and
responsibilities belonging to the office of an attorney.
Undoubtedly, this is well within our authority to do. By constitutional mandate, 22 our is the
solemn duty, amongst others, to determine the rules for admission to the practice of law.
Inherent in this prerogative is the corresponding authority to discipline and exclude from
the practice of law those who have proved themselves unworthy of continued membership
in the Bar. Thus

The power to discipline attorneys, who are officers of the court, is an inherent and
incidental power in courts of record, and one which is essential to an orderly
discharge of judicial functions. To deny its existence is equivalent to a declaration
that the conduct of attorneys towards courts and clients is not subject to restraint.
Such a view is without support in any respectable authority, and cannot be tolerated.
Any court having the right to admit attorneys to practice and in this state that power
is vested in this court-has the inherent right, in the exercise of a sound judicial
discretion to exclude them from practice. 23
This, because the admission of a lawyer to the practice of law is a representation to all that
he is worthy of their confidence and respect. So much so that
... whenever it is made to appear to the court that an attorney is no longer worthy of
the trust and confidence of the public and of the courts, it becomes, not only the
right, but the duty, of the court which made him one of its officers, and gave him the
privilege of ministering within its bar, to withdraw the privilege. Therefore it is
almost universally held that both the admission and disbarment of attorneys are
judicial acts, and that one is admitted to the bar and exercises his functions as an
attorney, not as a matter of right, but as a privilege conditioned on his own behavior
and the exercise of a just and sound judicial discretion. 24
Indeed, in this jurisdiction, that power to remove or suspend has risen above being a mere
inherent or incidental power. It has been elevated to an express mandate by the Rules of
Court. 25
Our authority and duty in the premises being unmistakable, we now proceed to make an
assessment of whether or not the utterances and actuations of Atty. Almacen here in
question are properly the object of disciplinary sanctions.
The proffered surrender of his lawyer's certificate is, of course, purely potestative on Atty.
Almacen's part. Unorthodox though it may seem, no statute, no law stands in its way.
Beyond making the mere offer, however, he went farther. In haughty and coarse language,
he actually availed of the said move as a vehicle for his vicious tirade against this Court.
The integrated entirety of his petition bristles with vile insults all calculated to drive home
his contempt for and disrespect to the Court and its members. Picturing his client as "a
sacrificial victim at the altar of hypocrisy," he categorically denounces the justice
administered by this Court to be not only blind "but also deaf and dumb." With unmitigated
acerbity, he virtually makes this Court and its members with verbal talons, imputing to the
Court the perpetration of "silent injustices" and "short-cut justice" while at the same time
branding its members as "calloused to pleas of justice." And, true to his announced threat
to argue the cause of his client "in the people's forum," he caused the publication in the
papers of an account of his actuations, in a calculated effort ;to startle the public, stir up
public indignation and disrespect toward the Court. Called upon to make an explanation,
he expressed no regret, offered no apology. Instead, with characteristic arrogance, he
rehashed and reiterated his vituperative attacks and, alluding to the Scriptures, virtually
tarred and feathered the Court and its members as inveterate hypocrites incapable of
administering justice and unworthy to impose disciplinary sanctions upon him.

The virulence so blatantly evident in Atty. Almacen's petition, answer and oral argumentation
speaks for itself. The vicious language used and the scurrilous innuendoes they carried far
transcend the permissible bounds of legitimate criticism. They could never serve any purpose
but to gratify the spite of an irate attorney, attract public attention to himself and, more
important of all, bring ;this Court and its members into disrepute and destroy public confidence
in them to the detriment of the orderly administration of justice. Odium of this character and
texture presents no redeeming feature, and completely negates any pretense of passionate
commitment to the truth. It is not a whit less than a classic example of gross misconduct, gross
violation of the lawyer's oath and gross transgression of the Canons of Legal Ethics. As such, it
cannot be allowed to go unrebuked. The way for the exertion of our disciplinary powers is thus
laid clear, and the need therefor is unavoidable.
We must once more stress our explicit disclaimer of immunity from criticism. Like any other
Government entity in a viable democracy, the Court is not, and should not be, above criticism.
But a critique of the Court must be intelligent and discriminating, fitting to its high function as
the court of last resort. And more than this, valid and healthy criticism is by no means
synonymous to obloquy, and requires detachment and disinterestedness, real qualities
approached only through constant striving to attain them. Any criticism of the Court must,
possess the quality of judiciousness and must be informed -by perspective and infused by
philosophy. 26
It is not accurate to say, nor is it an obstacle to the exercise of our authority in ;the premises,
that, as Atty. Almacen would have appear, the members of the Court are the "complainants,
prosecutors and judges" all rolled up into one in this instance. This is an utter misapprehension,
if not a total distortion, not only of the nature of the proceeding at hand but also of our role
therein.
Accent should be laid on the fact that disciplinary proceedings like the present are sui generis.
Neither purely civil nor purely criminal, this proceeding is not and does not involve a trial of
an action or a suit, but is rather an investigation by the Court into the conduct of its
officers. 27 Not being intended to. inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor therein It may be initiated by the
Court motu proprio. 28 Public interest is its primary objective, and the real question for
determination is whether or not the attorney is still a fit person to be allowed the privileges as
such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of
the Bar to account for his actuations as an officer of the Court with the end in view of preserving
the purity of the legal profession and the proper and honest administration of justice by purging
the profession of members who by their misconduct have proved themselves no longer worthy
to be entrusted with the duties and responsibilities pertaining to the office of an attorney. 29 In
such posture, there can thus be no occasion to speak of a complainant or a prosecutor.
Undeniably, the members of the Court are, to a certain degree, aggrieved parties. Any tirade
against the Court as a body is necessarily and inextricably as much so against the individual
members thereof. But in the exercise of its disciplinary powers, the Court acts as an entity
separate and distinct from the individual personalities of its members. Consistently with the
intrinsic nature of a collegiate court, the individual members act not as such individuals but.
only as a duly constituted court. Their distinct individualities are lost in the majesty of their
office.30 So that, in a very real sense, if there be any complainant in the case at bar, it can only
be the Court itself, not the individual members thereof as well as the people themselves
whose rights, fortunes and properties, nay, even lives, would be placed at grave hazard should

the administration of justice be threatened by the retention in the Bar of men unfit to discharge
the solemn responsibilities of membership in the legal fraternity.
Finally, the power to exclude persons from the practice of law is but a necessary incident of the
power to admit persons to said practice. By constitutional precept, this power is vested
exclusively in this Court. This duty it cannot abdicate just as much as it cannot unilaterally
renounce jurisdiction legally invested upon it. 31 So that even if it be conceded that the members
collectively are in a sense the aggrieved parties, that fact alone does not and cannot disqualify
them from the exercise of that power because public policy demands that they., acting as a
Court, exercise the power in all cases which call for disciplinary action. The present is such a
case. In the end, the imagined anomaly of the merger in one entity of the personalities of
complainant, prosecutor and judge is absolutely inexistent.
Last to engage our attention is the nature and extent of the sanctions that may be visited upon
Atty. Almacen for his transgressions. As marked out by the Rules of Court, these may range from
mere suspension to total removal or disbarment. 32 The discretion to assess under the
circumstances the imposable sanction is, of course, primarily addressed to the sound discretion
of the Court which, being neither arbitrary and despotic nor motivated by personal animosity or
prejudice, should ever be controlled by the imperative need that the purity and independence of
the Bar be scrupulously guarded and the dignity of and respect due to the Court be zealously
maintained.
That the misconduct committed by Atty. Almacen is of considerable gravity cannot be
overemphasized. However, heeding the stern injunction that disbarment should never be
decreed where a lesser sanction would accomplish the end desired, and believing that it may
not perhaps be futile to hope that in the sober light of some future day, Atty. Almacen will realize
that abrasive language never fails to do disservice to an advocate and that in every
effervescence of candor there is ample room for the added glow of respect, it is our view that
suspension will suffice under the circumstances. His demonstrated persistence in his misconduct
by neither manifesting repentance nor offering apology therefor leave us no way of determining
how long that suspension should last and, accordingly, we are impelled to decree that the same
should be indefinite. This, we are empowered to do not alone because jurisprudence grants us
discretion on the matter 33 but also because, even without the comforting support of precedent,
it is obvious that if we have authority to completely exclude a person from the practice of law,
there is no reason why indefinite suspension, which is lesser in degree and effect, can be
regarded as falling outside of the compass of that authority. The merit of this choice is best
shown by the fact that it will then be left to Atty. Almacen to determine for himself how long or
how short that suspension shall last. For, at any time after the suspension becomes effective he
may prove to this Court that he is once again fit to resume the practice of law.
ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul Almacen be, as he is hereby,
suspended from the practice of law until further orders, the suspension to take effect
immediately.
Let copies of this resolution. be furnished the Secretary of Justice, the Solicitor General and the
Court of Appeals for their information and guidance.

G.R. No. 184116

June 19, 2013

CENTURY IRON WORKS, INC. and BENITO CHUA, Petitioners,

vs.
ELETO B. BANAS, Respondent.
DECISION
BRION, J.:
We resolve the petition for review on certiorari 1 filed by petitioners Century Iron Works, Inc.
(Century Iron) and Benito Chua to challenge the January 31, 2008 decision 2 and the August
8, 2008 resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 98632.
The Factual Antecedents
Respondent Eleto B. Banas worked at petitioner Century Iron beginning July 5, 2000 4 until
his dismissal on June 18, 2002.5 Baas responded to his dismissal by filing a complaint for
illegal dismissal with prayer for reinstatement and money claims. 6
According to Century Iron, Baas worked as an inventory comptroller whose duties are to:
(1) train newly hired warehouseman; (2) initiate analysis on the discrepancies concerning
records and inventories; (3) check and confirm warehousemans report; (4) check the
accuracy of materials requisition before issuance to the respective warehouseman at the
jobsite; (5) monitor and maintain records; and (6) recommend and initiate corrective or
preventive action as may be warranted.7
Sometime in 2002, Century Iron received letters of complaint from its gas suppliers
regarding alleged massive shortage of empty gas cylinders. 8 In the investigation that
Century Iron conducted in response to the letters, it found that Baas failed to make a
report of the missing cylinders. On May 14, 2002, Century Iron required Baas to explain
within forty-eight (48) hours from receipt of its letter why no disciplinary action should be
taken against him for loss of trust and confidence and for gross and habitual neglect of
duty.9 On May 31, 2002, Century Iron issued a Memorandum requiring Baas to attend a
hearing regarding the missing cylinders.10 Baas subsequently appeared at the hearing to
air his side.
On June 17, 2002, Century Iron, through Personnel Officer Mr. Virgilio T. Baaga, terminated
Baas services on grounds of loss of trust and confidence, and habitual and gross neglect
of duty.11 The termination was effective June 18, 2002.
In his defense, Baas alleged that he merely worked as an inventory clerk who is not
responsible for the lost cylinders. He pointed out that his tasks were limited to conducting
periodic and yearly inventories, and submitting his findings to the personnel officer. He
maintained that unlike a supervisory employee, he was not required to post a bond and he

did not have the authority to receive and/or release cylinders in the way that a
warehouseman does. Therefore, he cannot be terminated on the ground of loss of
confidence.12
On the other hand, the petitioners asserted that Baas was a supervisory employee who
was responsible for the lost cylinders. They maintained that Baas committed numerous
infractions during his tenure amounting to gross and habitual neglect of duty. These
included absences without leave, unauthorized under time, failure to implement proper
standard warehousing and housekeeping procedure, negligence in making inventories of
materials, and failure to ensure sufficient supplies of oxygen-acetylene gases. 13
The Labor Arbitration Rulings
In a decision14 dated January 31, 2005, Labor Arbiter (LA) Joel S. Lustria ruled that Baas
was illegally dismissed. The LA did not believe Century Irons assertions that Baas worked
as an inventory comptroller and that he was grossly and habitually neglectful of his duties.
The evidence on record shows that Baas was an inventory clerk whose duties were
merely to conduct inventory and to submit his report to the personnel officer. As an
inventory clerk, it was not his duty to receive the missing items. The LA also ruled that
Century Iron deprived Baas of due process because the purpose of the hearing was to
investigate the lost cylinders and not to give Baas an opportunity to explain his side.
On appeal by Century Iron, the National Labor Relations Commission (NLRC) affirmed the
LAs ruling in toto.15 It ruled that the various memoranda issued by Century Iron explicitly
show that Baas was an inventory clerk. It noted that Century Iron unequivocally stated in
its termination report dated July 29, 2002 that Baas was an inventory clerk. It also pointed
out that Century Iron failed to present the Contract of Employment or the Appointment
Letter which was the best evidence that Baas was an inventory comptroller.
The NLRC denied16 the motion for reconsideration17 that Century Iron subsequently filed,
prompting the employer company to seek relief from the CA through a petition for
certiorari under Rule 65 of the Rules of Court.18
The CA Ruling
On January 31, 2008, the CA affirmed with modification the NLRC decision. It agreed with
the lower tribunals finding that Baas was merely an inventory clerk. It, however, ruled
that Baas was afforded due process. It held that Baas had been given ample opportunity
to air his side during the hearing, pointing out that the essence of due process is simply an
opportunity to be heard.19
Century Iron filed the present petition20 after the CA denied21 its motion for
reconsideration.22
The Petition

The petitioners impute the following errors committed by the appellate court:
1) The CA erred in holding that the factual findings of the NLRC may not be
inquired into considering that only questions of law may be brought in an original
action for certiorari;

a) Whether or not loss of confidence is a ground for terminating a rank-and-file employee who is
not routinely charged with the care and custody of the employers money or property; and
b) Whether or not Baas was grossly and habitually neglectful of his duties.

The Courts Ruling

2) The CA erred in finding that Baas was not a supervisory employee; and

We reverse the CAs decision.

3) The CA erred in not holding that Baas termination from his employment was
for valid and just causes.23

In a petition for review on certiorari under Rule 45, only questions of law may be
put into issue while in a
petition for certiorari under Rule 65, only questions of jurisdiction may be
inquired into

The petitioners argue that the CA erred when it did not disturb the NLRCs finding that
Baas was merely a rank-and-file employee. Citing Capitol Medical Center, Inc. v. Dr.
Meris,24 they contend that for factual findings of the NLRC to be accorded respect, these
must be sufficiently supported by the evidence on record. The petitioners assert that
Baas was a supervisory employee who, in the interest of the employer, effectively
recommended managerial actions using his independent judgment. They point out that
one of Baas duties as an inventory comptroller was to recommend and initiate corrective
or preventive action as may be warranted.
The petitioners also maintain that Baas was dismissed for just and valid causes. They
reiterate that since Baas was a supervisory employee, he could be dismissed on the
ground of loss of confidence. Finally, the petitioners claim that Baas was grossly and
habitually negligent in his duty which further justified his termination.
The Respondents Position
In his Comment, Baas posits that the petition raises purely questions of fact which a
petition for review on certiorari under Rule 45 of the Rules of Courts does not allow. He
additionally submits that the petitioners arguments have been fully passed upon and
found unmeritorious by the lower tribunals and the CA.
25

The Issues
This case presents to us the following issues:
1) Whether or not questions of fact may be inquired into in a petition for certiorari under Rule 65
of the Rules of Court;
2) Whether or not Baas occupied a position of trust and confidence, or was routinely charged
with the care and custody of Century Irons money or property; and
3) Whether or not Century Iron terminated Baas for just and valid causes.
As part of the third issue, the following questions are raised:

On the first issue, the CA relied on Cebu Shipyard & Engg Works, Inc. v. William Lines,
Inc.26 in affirming the lower tribunals finding that Baas worked as an inventory clerk.
According to the CA, this Court has ruled in Cebu Shipyard that in petitions for certiorari,
only questions of law may be put into issue and questions of fact cannot be entertained.
Not noticing such glaring error, the petitioners agree to such disquisition.They, however,
assert that there is an exception to the rule that only questions of law may be brought in
an original action for certiorari, such as when the lower courts findings of facts are not
supported by sufficient evidence or that the same was based on misapprehension or
erroneous appreciation of facts.27
A revisit of Cebu Shipyard shows that the CA has inadvertently misquoted this Court. In the
said case, we held:28
In petitions for review on certiorari, only questions of law may be put into issue. Questions
of fact cannot be entertained. The finding of negligence by the Court of Appeals is a
question which this Court cannot look into as it would entail going into factual matters on
which the finding of negligence was based. [emphasis ours; italics supplied]
We clarify that the petitioners filed a petition for certiorari under Rule 65 of the Rules of
Court before the CA. Both the petitioners and the CA have confused Rule 45 and Rule 65. In
several Supreme Court cases,29 we have clearly differentiated between a petition for
review on certiorari under Rule 45 and a petition for certiorari under Rule 65. A petition for
review on certiorari under Rule 45 is an appeal from a ruling of a lower tribunal on pure
questions of law.30 It is only in exceptional circumstances 31 that we admit and review
questions of fact.
A question of law arises when there is doubt as to what the law is on a certain state of
facts, while there is a question of fact when the doubt arises as to the truth or falsity of the
alleged facts. For a question to be one of law, the question must not involve an
examination of the probative value of the evidence presented by the litigants or any of
them. The resolution of the issue must rest solely on what the law provides on the given
set of circumstances. Once it is clear that the issue invites a review of the evidence
presented, the question posed is one of fact.32

Thus, the test of whether a question is one of law or of fact is not the appellation given to
such question by the party raising the same; rather, it is whether the appellate court can
determine the issue raised without reviewing or evaluating the evidence, in which case, it
is a question of law; otherwise it is a question of fact. 33
On the other hand, a petition for certiorari under Rule 65 is a special civil action, an original
petition confined solely to questions of jurisdiction because a tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without jurisdiction or in excess of jurisdiction or
with grave abuse of discretion amounting to lack of jurisdiction. 34
The petition before us involves mixed questions of fact and law. The issues of whether Baas
occupied a position of trust and confidence, or was routinely charged with the care and custody
of the employers money or property, and whether Baas was grossly and habitually neglectful
of his duties involve questions of fact which are necessary in determining the legal question of
whether Baas termination was in accordance with Article 282 of the Labor Code.
We will only touch these factual issues in the course of determining whether the CA correctly
ruled whether or not the NLRC committed grave abuse of discretion in the process of deducing
its conclusions from the evidence proffered by the parties. In reviewing in this Rule 45 petition
the CAs decision on a Rule 65 petition, we will answer the question: Did the CA correctly
determine whether the NLRC committed grave abuse of discretion in ruling on this case? 35
Baas did not occupy a position of trust and confidence nor was he in charge of the
care and custody of Century Irons money or property
The CA properly affirmed the NLRCs ruling that Baas was a rank-and-file employee who was
not charged with the care and custody of Century Irons money or property. The ruling of the CA,
finding no grave abuse of discretion in the LA and the NLRC rulings and are supported by
substantial evidence, is, to our mind, correct. The evidence on record supports the holding that
Baas was an ordinary employee. There is no indication that the NLRCs decision was unfair or
arbitrary. It properly relied on Century Irons numerous memoranda 36 where Baas was identified
as an inventory clerk. It correctly observed that Century Iron unequivocably declared that Baas
was an inventory clerk in its July 29, 2002 termination report with the Department of Labor and
Employment.37 Moreover, as the NLRC judiciously pointed out, Century Iron failed to present the
Contract of Employment or the Appointment Letter, the best evidence that would show that
Baas was an inventory comptroller.
Since Baas was an ordinary rank-and-file employee, his termination on the ground
of loss of confidence was illegal
Since Baas did not occupy a position of trust and confidence nor was he routinely in charge
with the care and custody of Century Irons money or property, his termination on the ground of
loss of confidence was misplaced.
We point out in this respect that loss of confidence applies to: (1) employees occupying
positions of trust and confidence, the managerial employees; and (2) employees who are
routinely charged with the care and custody of the employers money or property which may
include rank-and-file employees. Examples of rank-and-file employees who may be dismissed

for loss of confidence are cashiers, auditors, property custodians, or those who, in the normal
routine exercise of their functions, regularly handle significant amounts of money or
property.38 Thus, the phrasing of the petitioners second assignment of error is inaccurate
because a rank-and-file employee who is routinely charged with the care and custody of the
employers money or property may be dismissed on the ground of loss of confidence.
Baas was grossly and habitually neglectful of his duties
With respect to Century Irons assertion that Baas was grossly and habitually neglectful of his
duties, the CA erred in ruling that the NLRC did not commit grave abuse of discretion in
concluding that the dismissal was illegal. The NLRCs finding that there was illegal dismissal on
the ground of gross and habitual neglect of duties is not supported by the evidence on record. It
believed in Baas bare and unsubstantiated denial that he was not grossly and habitually
neglectful of his duties when the record is replete with pieces of evidence showing the contrary.
Consequently, the NLRC capriciously and whimsically exercised its judgment by failing to
consider all material evidence presented to it by the petitioners and in giving credence to Baas
claim which is unsupported by the evidence on record. 39
Baas self-serving and unsubstantiated denials cannot defeat the concrete and overwhelming
evidence submitted by the petitioners. The evidence on record shows that Baas committed
numerous infractions in his one year and eleven-month stay in Century Iron. On October 27,
2000, Century Iron gave Baas a warning for failing to check the right quantity of materials
subject of his inventory.40 On December 29, 2000, Baas went undertime.41 On January 2, 2001,
Baas incurred an absence without asking for prior leave. 42 On August 11, 2001, he was warned
for failure to implement proper warehousing and housekeeping procedures. 43 On August 21,
2001, he failed to ensure sufficient supplies of oxygen-acetylene gases during business
hours.44 On November 15, 2001, Baas was again warned for failing to secure prior permission
before going on leave.45 In May 2002, Century Irons accounting department found out that
Baas made double and wrong entries in his inventory. 46
Article 282 of the Labor Code provides that one of the just causes for terminating an
employment is the employees gross and habitual neglect of his duties. This cause includes
gross inefficiency, negligence and carelessness. 47 "Gross negligence connotes want or absence
of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a
thoughtless disregard of consequences without exerting any effort to avoid them. Fraud and
willful neglect of duties imply bad faith of the employee in failing to perform his job, to the
detriment of the employer and the latters business. Habitual neglect, on the other hand, implies
repeated failure to perform one's duties for a period of time, depending upon the
circumstances."48
To our mind, such numerous infractions are sufficient to hold him grossly and habitually
negligent.1wphi1 His repeated negligence is not tolerable. The totality of infractions or the
number of violations he committed during his employment merits his dismissal. Moreover, gross
and habitual negligence includes unauthorized absences and tardiness, 49 as well as gross
inefficiency, negligence and carelessness.50 As pronounced in Valiao v. Court of
Appeals,51 "fitness for continued employment cannot be compartmentalized into tight little
cubicles of aspects of character, conduct, and ability separate and independent of each other."

Besides, the determination of who to keep in employment and who to dismiss for cause is one of
Century Iron's prerogatives. Time and again, we have recognized that the employer has the right
to regulate, according to its discretion and best judgment, ell aspects of employment, including
work assignment, working methods, processes to be followed, working regulations, transfer of
employees, work supervision, lay-off of workers and the discipline, dismissal and recall of
workers.52 It would be the height of injustice if we force an employer to retain the services of an
employee who does not value his work.

In view of all the foregoing, we find the petition meritorious.

WHEREFORE, premises considered, we hereby GRANT the petition. The assailed decision and
resolution of the Court of Appeals are REVERSED and SET ASIDE. The complaint for illegal
dismissal is DISMISSED for lack of merit. Costs against respondent Eleto B. Baas.
SO ORDERED.