Professional Documents
Culture Documents
ARTURO M. DE CASTRO,
Petitioner,
- versus -
I AGREE with the conclusion that the President can appoint the Chief Justice and
Members of the Supreme Court two months before a presidential election up to the
end of the Presidents term, but DISAGREE with the conclusion that the authority
to appoint extends to the whole Judiciary.
I. Prefatory Statement
The debate, in and out of this Court, on the issues these consolidated cases pose,
have been differently described to be at varying levels of severity and intensity. What
we in Court do know is the multiplicity of petitions and interventions filed,
generating arguments of varying shades of validity. Sad but true, what we need in
considering all these submissions is simplification and focus on the critical issues,
not the mass of opinions that merely pile on top of one another. Based on this
standard, this Opinion shall endeavor to be brief, succinct but clear, and may not be
the academic treatise lay readers and even lawyers customarily expect from the
Court.
Section 4(1) The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in division of three,
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five, or seven Members. Any vacancy shall be filled within ninety days from the
occurrence thereof.
xxx
Section 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the Congress as ex
officio Members, a representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private sector.
(2) The regular members of the Council shall be appointed by the President for
a term of four years with the consent of the Commission on Appointments. Of the
Members first appointed, the representative of the Integrated Bar shall serve for four
years, the professor of law for three years, the retired justice for two years, and the
representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the
Council and shall keep a record of its proceedings.
(4) The regular members of the Council shall receive such emoluments as may
be determined by the Supreme Court. The Supreme Court shall provide in its annual
budget the appropriations of the Council.
Section 9. The Members of the Supreme Court and the judges of the lower
courts shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy. Such appointment needs
no confirmation.
For the lower courts, the President shall issue the appointment within ninety
days from the submission of the list.
These provisions are quoted together to stress the role the JBC plays in the
appointment process, and that it is effectively an adjunct of the Supreme Court: the
JBC is under the supervision of the Court, but is fully independent in undertaking
its main function; the Chief Justice is the Chair, with the Clerk of the Supreme Court
as the Secretary; the emoluments of JBC members are determined by the Supreme
Court with the JBC budget a part of the Supreme Court budget; and the Supreme
Court may assign functions and duties to the JBC.
While the rule on locus standi can be relaxed, the rule on the need for an actual
justiciable case that is ripe for adjudication addresses a different concern and cannot
be similarly treated. I disagree with the ponenciasruling on justiciability as
I believe some of the petitions before us do not reach the required level
of justiciability; others, however, qualify as discussed below so that my
disagreement with the lack of justiciability of some of the petitions need
not hinder the Courts consideration of the main issue at hand.
The basic requisite before this Court can rule is the presence of an actual case
calling for the exercise of judicial power. This is a requirement that the Constitution
itself expressly imposes; in granting the Court judicial power and in defining the
grant, the Constitution expressly states that judicial power includes the duty to
settle actual controversies involving rights which are legally demandable and
enforceable.[2] Thus, the Court does not issue advisory opinions, nor do we pass upon
hypothetical cases, feigned problems or friendly suits collusively arranged between
parties without real adverse interests. Courts cannot adjudicate mere academic
questions to satisfy scholarly interest, however intellectually challenging they may
be. As a condition precedent to the exercise of judicial power, an actual controversy
between litigants must first exist.[3]
An actual case or controversy exists when a case involves a clash of legal rights
or an assertion of opposite legal claims that the courts can resolve through the
application of law and jurisprudence. The case cannot be abstract or hypothetical as
it must be a concrete dispute touching on the legal relations of parties having adverse
legal interests. A justiciable controversy admits of specific relief through a decree
that is conclusive in character, whereas an opinion only advises what the law would
be upon a hypothetical state of facts. An actual case is ripe for adjudication when the
act being challenged has a direct adverse effect on the individual challenging it.[4]
In the justiciable cases this Court has passed upon, particularly in cases
involving constitutional issues, we have held that the Court also has the duty to
formulate guiding and controlling constitutional principles, precepts, doctrines, or
rules. The Court carries the symbolic function of educating the bench and the bar on
the extent of protection given by constitutional guarantees.[5]
Separately from the above concept of claims involving demandable rights and
obligations (but no less real in the strict constitutional sense), is the authority of the
Supreme Court to rule on matters arising in the exercise of its power of supervision.
This aspect of the power of the Court its power of supervision is particularly
relevant in this case since the JBC was created under the supervision of the Supreme
Court, with the principal function of recommending appointees to the Judiciary. In
the same manner that the Court cannot dictate on the lower courts on how they
should decide cases except through the appeal and review process provided by the
Rules of Court, so also cannot the Court intervene in the JBCs authority to discharge
its principal function. In this sense, the JBC is fully independent as shown by A.M.
No. 03-11-16-SC or Resolution Strengthening The Role and Capacity of the Judicial
and Bar Council and Establishing the Offices Therein. In both cases, however and
unless otherwise defined by the Court (as in A.M. No. 03-11-16-SC), the Court can
supervise by ensuring the legality and correctness of these entities exercise of their
powers as to means and manner, and interpreting for them the constitutional
provisions, laws and regulations affecting the means and manner of the exercise of
their powers as the Supreme Court is the final authority on the interpretation of
these instruments. A prime example of the exercise of the Courts power of
supervision is In Re: Appointments dated March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City, and of Branch 24, Cabanatuan City, respectively, A.M. No.
98-5-01-SC, November 9, 1998 (hereinafter referred to as Valenzuela) where the
Court nullified the oath of office taken by Judge Valenzuela, while at the same time
giving its interpretation of how the election ban against appointment operates on the
Judiciary, thereby setting the guidelines on how Section 15, Article VII is to be read
and interpreted. The Valenzuela case shall be discussed more fully below.
In his petition for certiorari and mandamus, Arturo De Castro (in G.R.
191002) seeks the review of the action of the JBC deferring the sending to the
incumbent President of the list of nominees for the position of Chief Justice, and
seeks as well to compel the JBC to send this list to the incumbent President when the
position of Chief Justice becomes vacant. He posits that the JBCs decision to defer
action on the list is both a grave abuse of discretion and a refusal to perform a
constitutionally-mandated duty that may be compelled by mandamus.[9]
On its face, this petition fails to present any justiciable controversy that can be
the subject of a ruling from this Court. As a petition for certiorari, it must first
show as a minimum requirement that the JBC is a tribunal, board or officer
exercising judicial or quasi-judicial functions and is acting outside its jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction.[10] A
petition for mandamus, on the other hand, at the very least must show that a
tribunal, corporation, board or officer unlawfully neglects the performance of an act
which the law specifically enjoins as a duty.[11]
The petition facially fails to characterize the JBC as a council exercising judicial
or quasi-judicial functions, and in fact states that the JBC does not have any judicial
function.[12] It cannot so characterize the JBC because it really does not exercise
judicial or quasi-judicial functions. It is not involved in the determination of rights
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From the point of view of substance, the petition admits that the vacancy for
the position of Chief Justice will not occur until May 17, 2010, and alleges that the
JBC has resolved to defer the decision to whom to send the list of 3 nominees,
whether to the incumbent President or to the next President following the May 11,
2010 national elections in view of Section 15, Article VII of the Constitution that bans
appointments during the election period,[14] citing various newspaper clippings and
the judicial notice of this Court.[15]
Neither the Constitution nor the Rules of Procedure of the JBC[20] categorically
states when a list of nominees for a vacant Supreme Court position shall be
submitted to the President, although the Constitution gives the President 90 days
within which to fill the vacancy.[21] This presidential deadline implies that the JBC
should submit its list of nominees before, or at the latest, on the day the vacancy
materializes so as not to shorten the 90-day period given to the President within
which to act.
Given these timelines and the May 17, 2010 vacancy date considered with the
allegations regarding the nature of the JBCs functions and its actions that we are
asked to judicially notice the De Castro petition filed on February 9, 2010 clearly
does not present a justiciable case for the issuance of a writ of certiorari. The
petition cannot make an incorrect and misleading characterization of the JBC action,
citing our judicial notice as basis, and then proceed to claim that grave abuse of
discretion has been committed. The study of the question of submitting a list to the
President in the JBCs step-by-step application and nomination process is not a grave
abuse of discretion simply because the petition calls it so for purposes of securing a
justiciable case for our consideration.[22]
Since the obligation to submit a list will not accrue until immediately before or
at the time the vacancy materializes (as the petitions prayer in fact admits), no duty
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can likewise be said to have as yet been neglected or violated to serve as basis for the
special civil action of mandamus. The JBCs study of the applicable constitutional
issue, as part of the JBCs nomination process, cannot be tantamount to a refusal to
perform its constitutionally-mandated duty. Presently, what exists is a purely
potential controversy that has not ripened into a concrete dispute where rights
have been violated or can already be asserted.
Peralta only differs from De Castro because it does not allege deferment on the
basis of media reports and judicial notice; instead, it attaches the January 18,
2010 resolution of the JBC as Annex A and cites this as a basis. An examination of
Annex A, however, shows that the JBC did not in fact resolve to defer the submission
of the list of nominees; the JBC merely stated that As to the time to submit this
shortlist to the proper appointing authority, in light of the Constitution, existing
laws and jurisprudence, the JBC welcomes and will consider all view on the
matter. This is not a deferment, nor is it a refusal to perform a duty assigned by law
as the duty to submit a list of nominees will not mature until a vacancy has or is
about to occur.
It seeks to compel the JBC to include the names of Senior Justices Antonio
Carpio and Conchita Carpio-Morales, and Prosecutor Dennis Villa Ignacio, in the list
of nominees for the position of Chief Justice although these nominees have
manifested that they want their names submitted to the incoming, not to the
incumbent, President of the Philippines.
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The petition also seeks various declarations by this Court, among them, that
Section 15, Article VIII should apply only to the Executive Department and not to the
Judiciary; and that the Decision of this Court in Valenzuela should be set aside and
overruled.
As basis, the petition alleges that the issues raised in the petition have spawned
a frenzied inflammatory debate on the constitutional provisions that has divided the
bench and the bar and the general public as well. It likewise posits that due to the
positions the nominees have taken, a final authoritative pronouncement from this
Court on the meaning and construction of Sections 4(1), 8(5) and 9, Article VIII, in
relation with Section 15, Article VII, is necessary. The petition grounds itself, too, on
the needs of public interest and public service.
On the whole, the PHILCONSA petition merely asks for a declaration from this Court
of the meaning and interpretation of the constitutional provisions on the
appointment of the Chief Justice, the Members of the Court, and the Judiciary in
general during the election ban period.
As we did with the De Castro petition and based on the same standards we
discussed above, we hold that the PHILCONSA petition presents no justiciable
controversy that can be the basis for its consideration as a petition
for mandamus and for its adjudication on the merits. On its face, the petition defines
no specific duty that the JBC should exercise and has neglected to exercise, and
presents no right that has been violated nor any basis to assert any legal
right.[23] Like the De Castro petition, it only presents to the Court a potential
controversy that has not ripened.
Consequently, the Court should rule that the PHILCONSA petition should be
dismissed outright together with any intervention supporting or opposing this
petition.
The Mendoza petition (A.M. 10-2-5-SC) is unique as even its docket case
number will show; it is presented as an administrative matter for the Courts
consideration pursuant to its power of supervision over judges and over the
JBC,[24] following the lead taken in the Valenzuela case (an A.M. case).
The cited Valenzuela case is rooted in a situation not far different from the
present case; a vacancy in the Court[25] had occurred and a difference of opinion
arose between the Executive and the Court on the application of Section 15, Article
VII, in relation with Section 4(1) and 9 of Article VIII, of the Constitution. An
exchange of letters took place between the Palace and the Court on their respective
positions. In the meanwhile, the President appointed two RTC judges (Valenzuela
and Vallarta) within the two-month period prior to the election. The Palace
forwarded the judges appointments to the Court, thus confronting Chief Justice
Narvasa with the question of whether given the election ban under Section 15, Article
VII that prima facie applies he should transmit the appointment papers to the
appointed judges so they could take their oaths in accordance with existing
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practice. At that point, the Court decided to treat the matter as an administrative
matter that was ripe for adjudication.
An administrative matter that is entered in the Courts docket is either an
administrative case (A.C.) or an administrative matter (A.M.) submitted to the
Court for its consideration and action pursuant to its power of supervision. An A.C.
involves disciplinary and other actions over members of the Bar, based on the Courts
supervision over them arising from the Supreme Courts authority to promulgate
rules relating to the admission to the practice of law and to the Integrated
Bar. Closely related to A.C. cases are the Bar Matter (B.M.) cases particularly
involving admission to the practice of law.[26] An A.M. is a matter based on the
Supreme Courts power of supervision: under Section 6, Article VIII, this refers to the
Courts administrative supervision over all courts and the personnel thereof; under
Section 8, it refers to its supervision over the JBC.
From the time of Valenzuela up to the present, the governing law and the
relationships between the Court and the JBC have not changed; the supervisory
relationship still exists full strength. The JBC is now in fact waiting for the Courts
action on how it regards the Valenzuela ruling whether the Court will reiterate,
modify or completely abandon it. The JBC expressly admitted its dilemna in its
Comment when it said: Since the Honorable Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these consolidated Petitions
and Administrative Matter. Under these plain terms, the JBC recognizes that a
controversy exists on the issue of submitting a shortlist to the President and it will
not act except with guidance from this Court. This is a point no less
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That the JBC has taken this stance is not surprising given the two petitions for
prohibition filed by Jaime N. Soriano (G.R. No. 191032) and Atty. Amador Z.
Tolentino, Jr., (G.R. No. 191342) that, on their face, show a cause of action ripe for
adjudication.
Soriano seeks to bar the JBC from continuing the selection processes on the
ground that the Supreme Court, not the President, appoints the Chief Justice.
Tolentino, on the other hand, seeks the issuance of a writ of prohibition under Rule
65 of the 1997 Rules of Court, among others, to enjoin and restrain the JBC from
submitting a list of nominees for judiciary positions to the incumbent President, on
the ground that an existing election ban against appointments is in place under
Section 15, Article VII of the Constitution.
In the simplest terms, the JBC by its own admission in its Comment and by
Sorianos[28] and Tolentinos[29] own admissions in their petitions is now in the process
of preparing its submission of nominees for the vacancy to be created by the
retirement of the incumbent Chief Justice, and has already completed the initial
phases of this preparation. Soriano and Tolentino want to stop this process and
compel the JBC to immediately discontinue its activities, apparently on the theory
that nomination is part of the appointment process
While their cited grounds and the intrinsic merits of these grounds vary, the
Soriano and Tolentino petitions, on their faces, present actual justiciable
controversies that are ripe for adjudication. Section 15, Article VII of the Constitution
embodies a ban against appointments by the incumbent President two months
before the election up to the end of her term. A ruling from this Court (Valenzuela) is
likewise in place confirming the validity of this ban against the Judiciary, or at least
against the appointment of lower court judges. A vacancy in the position of Chief
Justice will occur on May 17, 2010, within the period of the ban, and the JBC is
admittedly preparing the submission of its list of nominees for the position of Chief
Justice to the President. Under the terms of Section 15, Article VII and the obtaining
facts, a prima facie case exists supporting the petition for violation of the election
ban.
That the JBC now under a different membership needs guidance on the course
of action it should take on the constitutional issues posed, can best be understood
when the realities behind the constitutional provisions are examined.
A first reality is that the JBC cannot, on its own due to lack of the proper
authority, determine the appropriate course of action to take under the
Constitution. Its principal function is to recommend appointees to the Judiciary and
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The third reality, closely related to the second, is that in resolving the
coverage of the election ban vis--vis the appointment of the Chief Justice and the
Members of the Court, provisions of the Constitution other than the disputed
provisions must be taken into account. In considering when and how to act, the JBC
has to consider that:
1. The President has a term of six years which begins at noon of June
30 following the election, which implies that the outgoing President remains
President up to that time. (Section 4, Article VII). The President assumes office
at the beginning of his or her term, with provision for the situations where the
President fails to qualify or is unavailable at the beginning of his term (Section
7, Article VII).
2. The Senators and the Congressmen begin their respective terms also
at midday of June 30 (Sections 4 and 7, Article VI). The Congress convenes
on the 4th Monday of July for its regular session, but the President may call a
special session at any time. (Section 15, Article VI)
3. The Valenzuela case cited as authority for the position that the election
ban provision applies to the whole Judiciary, only decided the issue with
respect to lower court judges, specifically, those covered by Section 9, Article
VIII of the Constitution. Any reference to the filling up of vacancies in the
Supreme Court pursuant to Section 4(1), Article VIII constitutes obiter
dictum as this issue was not directly in issue and was not ruled upon.
1. If the election ban would apply fully to the Supreme Court, the
incumbent President cannot appoint a Member of the Court beginning March
10, 2010, all the way up to June 30, 2010.
2. The retirement of the incumbent Chief Justice May 17, 2010 falls within
the period of the election ban. (In an extreme example where the retirement of
a Member of the Court falls on or very close to the day the election ban starts,
the Office of the Solicitor General calculates in its Comment that the whole 90
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3. Beginning May 17, 2010, the Chief Justice position would be vacant,
giving rise to the question of whether an Acting Chief Justice can act in his
place. While this is essentially a Supreme Court concern, the Chief Justice is
the ex officio Chair of the JBC; hence it must be concerned and be properly
guided.
4. The appointment of the new Chief Justice has to be made within 90 days
from the time the vacancy occurs, which translates to a deadline of August 15,
2010.
5. The deadline for the appointment is fixed (as it is not reckoned from the
date of submission of the JBC list, as in the lower courts) which means that the
JBC ideally will have to make its list available at the start of the 90-day period
so that its process will not eat up the 90-day period granted the President.
6. After noon of June 30, 2010, the JBC representation from Congress
would be vacant; the current representatives mandates to act for their
principals extend only to the end of their present terms; thus, the JBC shall be
operating at that point at less than its full membership.
7. Congress will not convene until the 4th Monday of July, 2010, but would
still need to organize before the two Houses of Congress can send their
representatives to the JBC a process may extend well into August 2010.
8. In July 2010, one regular member of the JBC would vacate his
post. Filling up this vacancy requires a presidential appointment and the
concurrence of the Commission on Appointments.
9. Last but not the least, the prohibition in Section 15, Article VII is that a
President or Acting President shall not make appointments. This prohibition is
expressly addressed to the President and covers the act of appointment; the
prohibition is not against the JBC in the performance of its function of
recommending appointees to the Judiciary an act that is one step away from
the act of making appointments.
Given the justiciable Soriano and Tolentino petitions that directly address the
JBC and its activities, the impact of the above-outlined realities on the grant of a writ
of prohibition, and the undeniable supervision that the Supreme Court exercises over
the JBC as well as its role as the interpreter of the Constitution sufficiently
compelling reason exists to recognize the Mendoza petition as a properly
filed A.M. petition that should fully be heard in these proceedings to fully
ventilate the supervisory aspect of the Courts relationship with the JBC
and to reflect, once again, how this Court views the issues first
considered in Valenzuela. The Courts supervision over the JBC, the latters need
for guidance, and the existence of an actual controversy that Soriano and Tolentino
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cite, save the Mendoza petition from being one for declaratory relief, which petition
is originally cognizable by the Regional Trial Court, not by this Court.[31]
The correctness of this reading of the law is contradicted by both history and by
the law itself.
History tells us that, without exception, the Chief Justice of the Supreme Court
has always been appointed by the head of the Executive Department. Thus, Chief
Justices Cayetano Arellano, Victorino Mapa, Manuel Araullo, Ramon Avancena, Jose
Abad Santos, Jose Yulo, Manuel Moran and all the Chief Justices after Philippine
independence were appointed by the Chief Executive. The only difference in their
respective appointments is the sovereignty under which they were appointed.
The Chief Justices under the American regime were appointed by the President
of the United States; one Chief Justice each was appointed under the Commonwealth
and under the Japanese Military Administration; and thereafter all the Chief Justices
were appointed by the Philippine President. In every case, the appointing authority
was the Chief Executive.
The use of the generic term Members of the Supreme Court under Section 9,
Article VIII in delineating the appointing authority under the 1987 Constitution, is
not new. This was the term used in the present line of Philippine Constitutions, from
1935 to 1987, and the inclusion of the Chief Justice with the general term Member of
the Court has never been in doubt.[32] In fact, Section 4(1) of the present Constitution
itself confirms that the Chief Justice is a Member of the Court when it provides that
the Court may sit en banc or, in its discretion, in divisions of three, five, or seven
Members. The Chief Justice is a Member of the En Banc and of the First Division in
fact, he is the Chair of the En Banc and of the First Division but even as Chair is
counted in the total membership of the En Banc or the Division for all purposes,
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particularly of quorum. Thus, at the same time that Section 4(1) speaks of a Supreme
Court. . . composed of one Chief Justice and fourteen Associate Justices, it likewise
calls all of them Members in defining how they will sit in the Court.
Thus, both by law and history, the Chief Justice has always been a Member of
the Court although, as a primus inter pares appointed by the President together with
every other Associate Justice. For this reason, we should dismiss the Soriano petition
for lack of merit.
This is only a Separate Opinion, not a ponencia, and rather than recite or
tabulate the various positions taken in these submissions, I shall instead discuss the
issues based on topically arranged subdivisions and introduce the various positions
as arguments, for or against, without always naming the source. This is solely for
ease of presentation, clarity and continuity rather than for any devious reason.
Section 15 on its face disallows any appointment in clear negative terms (shall
not make) without specifying the appointments covered by the prohibition. From
this literal reading springs the argument that no exception is provided (except the
exception found in Section 15 itself) so that even the Judiciary is covered by the ban
on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical in its
terms: any vacancy in the Court shall be filled within 90 days from its occurrence. In
the way of Section 15, Section 4(1) is also clear and categorical and provides no
exception; the appointment refers solely to the Members of the Supreme Court and
does not mention any period that would interrupt, hold or postpone the 90-day
requirement.
Section 9 may offer more flexibility in its application as the mandate for the
President is to issue appointments within 90 days from submission of the list,
without specifying when the submission should be made.From their wordings,
urgency leaps up from Section 4(1) while no such message emanates from Section 9;
in the latter the JBC appears free to determine when a submission is to be made,
obligating the President to issue appointments within 90 days from the submission
of the JBC list. From this view, the appointment period under Section 9 is one that is
flexible and can move.
of the Tolentino petition that when the words or terms of a statute or provision is
clear and unambiguous, then no interpretation is necessary as the words or terms
shall be understood in their ordinary meaning. In this case, the individual
provisions, in themselves, are clear; the conflict surfaces when they operate in
tandem or against one another.
The Valenzuela decision gives the full flavor of how the election ban issue arose
because of Chief Justice Narvasas very candid treatment of the facts and the
issue. Valenzuela openly stated that at the root of the dispute was the then existing
vacancy in the Court and the difference of opinion on the matter between the
Executive and the Court on the application of Section 15, Article VII, in relation with
Section 4(1) and 9 of Article VIII, of the Constitution.
What appears very clear from the decision, however, is that the factual
situation the Court ruled upon, in the exercise of its supervision of court personnel,
was the appointment by the President of two RTC judgesduring the period of the
ban. It is clear from the decision, too, that no immediate appointment was ever made
to the Court for the replacement of retired Justice Ricardo Francisco as the JBC
failed to meet on the required nominations prior to the onset of the election ban.
I find it interesting that Tolentino largely justifies his position that the JBC
should now be prohibited from proceeding with the nomination process based
on Valenzuela as the prevailing rule that should be followed under the principle
of stare decisis. Tolentino apparently misappreciates the reach and real holding
of Valenzuela, as explained and clarified above. A ruling involving the appointment
of lower court judges under Section 9, Article VIII cannot simply be bodily lifted and
applied in toto to the appointment of Members of the Supreme Court under Section
4(1) of the same Article.
Another aspect of stare decisis that must be appreciated is that Supreme Court
rulings are not written in stone so that they will remain unerased and applicable for
all times. The Supreme Courts review of rulings and their binding effects is a
continuing one so that a ruling in one era may be declared by the Court at some
future time to be no longer true and should thus be abandoned and changed. The
best and most unforgettable example of this kind of change happened in the United
States when the US Supreme Court overturned the ruling in Plessy v.
Fergusson[33] that upheld the constitutionality of racial segregation under the
separate but equal doctrine. After half a century, the US Court completely abandoned
this ruling in the now famous Brown v. Board of Education when it ruled that
separate but equal doctrine is inherently unequal in the context of public
education.[34]I mention this, if only as a reminder to one and all, that the terms of
the Valenzuela ruling, if truly applicable even to appointments to this Court, is not
written in stone and remains open for review by this Court.
Valenzuela rests on the reasoning that the evil that Section 15 seeks to remedy
vote buying, midnight appointments and partisan reasons to influence the results of
the election is so pervasive so that the Section 15 ban should prevail over everything
else. The Court, however, forgot in some statements in this case that hand in hand
with Section 15 is Section 4(1) where the framers also recognized, in clear and
absolute terms, that a vacancy in the Court should be filled up because of the
importance of having a Supreme Court with its full and complete membership.
Completeness has a heightened meaning when the missing Member is the head of
the Judiciary and the Court in the person of the Chief Justice.
The separate realities that Section 15, Article VII and Section 4(1) bring to the
fore now confront us with the question of prioritizing our constitutional values in
terms of two provisions that effectively operate in their separate spheres, but which
conflict when they directly confront one another. The direct question is: should we
really implement Section 15 above everything else, even at the expense of having an
incomplete Supreme Court, or should we recognize that both provisions should be
allowed to operate within their own separate spheres with one provision being an
exception to the other, instead of saying that one provision should absolutely prevail
over the other?
In the first place, Section 4(1) covers only the appointment of 15 Members, not
in their totality, but singly and individually as Members disappear from the Court
and are replaced. Thus, the evil that the Aytonacase[35] sought to remove
mass midnight appointments will not be present.
partisanship can hardly be a reason to systemically place the whole Supreme Court
under a ban on appointments during the election period.
In any case, the comments made on this point in the petitions are conjectural
and speculative and can hardly be the bases for adjudication on the merits. If records
of the Court will matter, the duly proven facts on record about the immediately past
Chief Justices speak for themselves with respect to partisanship in favor of the sitting
President. It is a matter of public record that Chief Justices Davide, Panganiban and
Puno did not try to please their respective incumbent Presidents, and instead ruled
in the way that the law, jurisprudence and the requirements of public interests
dictated.
The Mendoza petition presents some very compelling reasons why the
Supreme Court, if not the whole Judiciary, should be exempt from the coverage of
the election ban that Section 15, Article VII imposes.
The Chief Justice is the head of the Judiciary in the same manner that the
President is the Chief Executive and the Senate President and the Speaker of the
House head the two Houses of Congress. The Constitution ensures, through clear
and precise provisions, that continuity will prevail in every branch by defining how
replacement and turnover of power shall take place. Thus, after every election to be
held in May, a turn over of power is mandated on the following 30th of June for all
elective officials.
the requirement is 90 days from the JBCs submission of its list. This constitutional
arrangement is what the application of Section 15, Article VII to the appointment of
Members of the Supreme Court will displace.
The Tolentino petition argues that the appointment of a Chief Justice is not all
that important because the law anyway provides for an Acting Chief Justice. While
this is arguably true, Peralta misunderstands the true worth of a duly appointed
Chief Justice. He forgets, too, that a Supreme Court without a Chief Justice in place
is not a whole Supreme Court; it will be a Court with only 14 members who would act
and vote on all critical matters before it.
The importance of the presence of one Member of the Court can and should
never be underestimated, particularly on issues that may gravely affect the
nation. Many a case has been won or lost on the basis of one vote. On an issue of the
constitutionality of a law, treaty or statute, a tie vote which is possible in a 14
member court means that the constitutionality is upheld. This was our lesson
in Isagani Cruz v. DENR Secretary.[36]
More than the vote, Court deliberation is the core of the decision-making
process and one voice less is not only a vote less but a contributed opinion, an
observation, or a cautionary word less for the Court. One voice can be a big
difference if the missing voice is that of the Chief Justice.
The intent of the framers of the Constitution to extend to the Court a fixed
period that will assure the nation that the Courts membership shall immediately be
filled, is evidenced no less than by the Constitutional Commissions own deliberations
where the following exchange took place:
Mr. De Castro: I understand that our justices now in the Supreme Court, together
with the Chief Justice, are only 11.
Mr. Concepcion: Yes.
Mr. De Castro: And the second sentence of this subsection reads: Any
vacancy shall be filled within ninety days from the occurrence thereof.
Mr. Concepcion: That is right.
Mr. De Castro: Is this a now a mandate to the executive to fill the vacancy.
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Authority to Sanction Members of the Bar
Mr. Concepcion: That is right. That is borne out of the fact that in the past 30
years, seldom has the Court had a complete complement.
This exchange, to my mind, removes any remaining doubt about the framers
recognition of the need to always have a full Court.
b.3. Construction of the Disputed Provisions
For indeed, the reasons the former Chief Justice cited in Valenzuela justify the
application of the Section 15, Article VII as against the rule on appointment of lower
court judges under Section 9, Article VIII. As I have shown above, Section 9 does not
impose a hard and fast rule on the period to be observed, apparently because the
urgency of the appointment may not be as great as in the appointment of Members
of the Supreme Court.The period for appointment can move at the discretion of the
JBC, although the exercise of this discretion also carries its own butt-in and implicit
limits.
For this reason, I do not disagree with Valenzuela for its ruling on lower court
judges; Section 15, Article VII may indeed prevail over Section 9, Article VIII.
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Authority to Sanction Members of the Bar
In contrast with this conclusion, an interpretation that Section 15, Article VII
will similarly prevail over Section 4(1), Article VIII is clearly misplaced. The
structure, arrangement and intent of the Constitution and the public policy reasons
behind them simply speak against the interpretation that appointments of Members
of the Court should be subject to the election ban. These are all discussed above and
need not be repeated here.
Based on the values that the disputed provisions embody, what we need to
balance are the integrity of our electoral process and the protection needed to
achieve this goal, as against the Judiciarys need for independence and strength
enforced through a Supreme Court that is at its full strength. To be sure, the nation
and our democracy need one as well as the other, for ultimately both contribute to
our overall national strength, resiliency, and stability. Thus, we must, to the extent
possible, give force and effect to both and avoid sacrificing one for the other.
The resolution of the present dispute can only be complete if clear guidelines
are given to the JBC on how it shall conduct itself under the present circumstances
pursuant to this Courts ruling. The Court should therefore direct the JBC to:
A. forthwith proceed with its normal processes for the submission of the list of
nominees for the vacancy to be created by the retirement of Chief Justice
Reynato S. Puno, to be submitted to the President on or before the day
before the retirement of the Chief Justice;
B. in the course of preparing its list of nominees, determine with certainty the
nominees readiness to accept the nomination as well as the appointment
they may receive from the President, deleting from the list the nominees
who will refuse to confirm their full readiness to accept without conditions
either their nomination or their appointment, if they will be appointed;
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Authority to Sanction Members of the Bar
C. proceed with its normal processes for the preparation of the lists for the
vacancies for the lower courts, to be submitted to the Office of the President
as soon as the election ban on appointments is lifted; and
D. in all other matters not otherwise falling under the above, conduct itself in
accordance with this Decision.
1. Dismiss the De Castro and Peralta petitions and for not being justiciability
and for prematurity.
2. Dismiss the Soriano and the Tolentino petitions for lack of merit.
4. Grant the Mendoza petition and declare for the JBCs guidance that:
a. Section 4(1), Article VIII is an exception to the coverage of
Section 15, Article VII; appointments to the Supreme Court are
not subject to the election ban under Section 15, Article VII so
that the JBC can submit its list of nominees for the expected
vacancy for the retirement of Chief Justice Reynato S. Puno, on
or before the vacancy occurs, for the Presidents consideration
and action pursuant to Section 4(1), Article VIII ;
b. Reiterate our ruling in In re: Valenzuela and Vallarta that no
other appointments of judges of the lower courts can be made
within the election ban period, pursuant to Section 15, Article
VII.
ARTURO D. BRION
Associate Justice
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Authority to Sanction Members of the Bar
In BAR MATTER N0. 1645 (RE: AMENDMENT OF RULE 139-B), dated October
13, 2015, the Supreme Court issued new rules governing administrative
disciplinary cases against lawyers.
2.
The Supreme Court's power relating to the admission to the practice of law
inherently includes the power to discipline and remove from the rolls, lawyers who
have transgressed their oath and violated the Code of Professional Responsibility.
3.
Dismissal of complaints filed against lawyers is a power of the Supreme Court that
cannot be delegated to the Integrated Bar of the Philippines.
4.
The motive of the complainant and his or her action/inaction after the filing of a
verified complaint against a lawyer are not essential to the proceedings.
1.
Sections 1, 5, 12, 13, and 15 of Rule 139-B of the Rules of Court are amended to
read as follows:
The IBP shall forward to the Supreme Court for appropriate disposition all complaints
for disbarment, suspension and discipline filed against incumbent Justices of the
Court of Appeals, Sandiganbayan, Court of Tax Appeals and judges of lower courts,
or against lawyers in the government service, whether or not they are charged singly
or jointly with other respondents, and whether or not such complaint deals with acts
unrelated to the discharge of their official functions. If the complaint is filed before the
IBP, six ( 6) copies of the verified complaint shall be filed with the Secretary of the
IBP or the Secretary of any of its chapter who shall forthwith transmit the same to the
IBP Board of Governors for assignment to an investigator.”
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Authority to Sanction Members of the Bar
If the complaint does not merit action, or if the answer shows to the satisfaction of
the Investigator that the complaint is not meritorious, the Investigator will recommend
to the Board of Governors the dismissal of the complaint.
(Amendment pursuant to Supreme Court Resolution dated May 27, 1993 re Bar
Matter No. 356)
b) After its review, the Board, by the vote of a majority of its total membership, shall
recommend to the Supreme Court the dismissal of the complaint or the imposition of
disciplinary action against the respondent.
The Board shall issue a resolution setting forth its findings and recommendations,
clearly and distinctly stating the facts and the reasons on which it is based.
The resolution shall be issued within a period not exceeding thirty (30) days from the
next meeting of the Board following the submission of the Investigator's report.
c) The Board's resolution, together with the entire records and all evidence
presented and submitted, shall be transmitted to the Supreme Court for final action
within ten (10) days from issuance of the resolution.
d) Notice of the resolution of the Board shall be given to all parties through their
counsel, if any.”
Court may refer the case for investigation to the Office of the Bar Confidant, or to
any officer of the Supreme Court or judge of a lower court, in which case the
investigation shall proceed in the same manner provided in sections 6 to 11 hereof,
save that the review of the report of investigation shall be conducted directly by the
Supreme Court.
The complaint may also be referred to the IBP for investigation, report, and
recommendation.”
C. COMMON PROVISIONS
The amendments shall take effect fifteen (15) days after publication in a
newspaper of general circulation.
The Integrated Bar of the Philippines is ordered to revise its rules of procedure
in accordance with the amendments to Rule 139-B.
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Authority to Sanction Members of the Bar
complaint arose from the proceedings before the Court of Appeals in Bank of
the Philippine Islands v. Angelita De Jesus, through her Attorney-in-Fact Jim
Dulay, which Atty. Mortel handles.
2 3
On July 20, 2010, the Court of Appeals issued a Notice for Atty. Mortel to file an
4
Atty. Mortel recently moved out of his office at Herrera Tower, Makati City due to
the high cost of maintenance. Looking for a new office, he requested to use the
7 8
address of his friend’s law firm as his address on record for Bank of the
Philippine Islands. Atty. Marcelino Ferdinand V. Jose (Atty. Jose), Managing
9
Partner of MFV Jose Law Office, granted this request sometime in August
2010. Atty. Mortel’s address on record was then listed at Unit 2106, Philippine
10
AXA Life Center, 1286 Sen. Gil Puyat Ave., Makati City, the same address as
11
staff would pass these to the desk of Atty. Jose for monitoring and checking.
Atty. Jose would then forward these to the handling lawyer in the office. The 14
law firm’s messenger, Randy G. Lucero (Lucero), was tasked with informing
Atty. Mortel whenever there was a resolution or order pertinent to Bank of
Philippine Islands.15
Bank of Philippine Islands was not included in MFV Jose Law Office’s list or
inventory of cases. Thus, Atty. Jose "simply attached a piece of paper with
16
Initially, Randy De Leon (De Leon), Atty. Mortel’s messenger, went to MFV Law
Office to inquire if it had received notices for Atty. Mortel. None came at that
18
time. Thus, De Leon left his number with Lucero, and the two messengers
19
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Authority to Sanction Members of the Bar
agreed that Lucero would text De Leon should any court notice or order for Atty.
Mortel arrive. 20
On August 16, 2010, instead of heeding the Court of Appeals Notice to file the
appellant’s brief, Atty. Mortel moved to withdraw Angelita De Jesus’ appeal in 21
Withdraw Appeal was filed, he stopped communicating with MFV Law Office
and instructed De Leon to do the same. 23
In the Resolution dated September 20, 2010, the Court of Appeals directed Atty.
Mortel to secure and submit Angelita De Jesus’ written conformity to the Motion
to Withdraw Appeal within five (5) days from notice. Atty. Mortel did not
24
comply. 25
In the Resolution dated November 11, 2010, the Court of Appeals again directed
Atty. Mortel to comply with the September 20, 2010 Resolution and warned him
of disciplinary action should he fail to secure and submit Angelita De Jesus’
written conformity to the Motion within the reglementary period. Atty. Mortel did
26
not comply. 27
Thus, on February 23, 2011, the Court of Appeals resolved to "den[y] the motion
to withdraw appeal; . . . reiterat[e] the notice dated July 20, 2010, directing
[Angelita De Jesus] to file appellant’s brief within . . . [45] days from notice; and .
. . direc[t] Atty. Mortel to show cause why he should not be cited in contempt for
non-compliance with [the Court of Appeals] order." 28
The February 23, 2011 Resolution was sent to Angelita De Jesus’ address on
record, but it was returned with the notation "moved out" on the envelope. 29
On March 28, 2011, the Court of Appeals resolved to direct Atty. Mortel to
furnish it with Angelita De Jesus’ present and complete address within 10 days
from notice. Atty. Mortel did not comply. 30
In the Resolution dated July 5, 2011, the Court of Appeals again ordered Atty.
Mortel to inform it of Angelita De Jesus’ address within 10 days from
notice. Atty. Mortel did not comply.
31 32
In the Resolution dated October 13, 2011, the Court of Appeals directed Atty.
Mortel, for the last time, to inform it of Angelita De Jesus’ address within 10 days
from notice. Still, Atty. Mortel did not comply.
33 34
In the Resolution dated January 10, 2012, the Court of Appeals ordered Atty.
Mortel to show cause, within 15 days, why he should not be held in contempt for
non-compliance with the Court of Appeals Resolutions. Atty. Mortel ignored
35
this.
36
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Authority to Sanction Members of the Bar
In the Resolution dated May 16, 2012, the Court of Appeals found Atty. Mortel
liable for indirect contempt. It ordered him to pay ₱10,000.00 as fine. Atty.
37 38
On August 13, 2012, the Court of Appeals resolved to (1) again order Atty.
Mortel to pay, within 10 days from notice, the fine of ₱10,000.00 imposed upon
him under the May 16, 2012 Resolution; (2) require Atty. Mortel to follow the
40
July 5, 2011 and October 13, 2011 Resolutions that sought information from him
as to his client’s present address; and (3) warn him that failure to comply with
41
the Resolutions within the reglementary period will constrain the Court of
Appeals "to impose a more severe sanction against him." Atty. Mortel snubbed
42
the directives.
43
According to the Court of Appeals, the Cashier Division reported that Atty.
Mortel still did not pay the fine imposed despite his receipt of the May 16, 2012,
August 13, 2012, and October 17, 2012 Resolutions. 44
In the Resolution dated April 26, 2013, the Court of Appeals directed Atty. Mortel
to show cause why it should not suspend him from legal practice for ignoring its
May 16, 2012 Resolution (which fined him for ₱10,000.00). The April 26, 2013
45
Resolution was sent to his address on record at Unit 2106, Philippine AXA Life
Center, 1286 Sen. Gil Puyat Ave., Makati City, as shown in the registry return
46
card.47
Despite having ignored 11 Court of Appeals Resolutions, Atty. Mortel did not
48
show cause for him not to be suspended. The Court of Appeals found that his
49
In the Resolution dated August 14, 2013, the Court of Appeals suspended Atty.
Mortel from legal practice for six (6) months and gave him a stern warning
against repeating his actions. Atty. Mortel was also directed to comply with the
51
Let copies of this Resolution be furnished the Supreme Court for its information
and appropriate action.
SO ORDERED. (Emphasis in the original)
52
the Court of Appeals submitted before this Court a certified true copy of the
August 14, 2013 Resolution, which suspended Atty. Mortel from legal practice,
together with a statement of facts from which the suspension order was based. 54
On October 23, 2013, the Office of the Bar Confidant issued a Report stating
that it docketed the Court of Appeals’ August 14, 2013 Resolution as a regular
administrative case against Atty. Mortel. 55
In the Resolution dated January 20, 2014, this Court noted and approved the
administrative case, furnished Atty. Mortel a copy of the August 14, 2013
Resolution, and required him to comment within 10 days from notice. This 56
On February 25, 2014, Atty. Jose read this Court’s January 20,
2014 Resolution meant for Atty. Mortel, and saw that Atty. Mortel had been
58 59
Four (4) years passed since the Court of Appeals first sent a Resolution to Atty. 63
Mortel, through MFV Jose Law Office, in 2010. Atty. Jose asked Lucero, his
messenger, why these Resolutions were not forwarded to Atty. Mortel. 64
Lucero stated that he would usually text De Leon, Atty. Mortel’s messenger,
whenever there was an order or resolution pertinent to the case. However, after 65
a few messages, De Leon no longer texted back. Lucero added that he "had no
66
mails sent by the Court of Appeals for Atty. Mortel. Not knowing how to contact
68
Atty. Mortel’s messenger, Lucero simply kept the copies in the office racks or on
his table.69
On March 5, 2014, Atty. Mortel filed before the Court of Appeals an Omnibus
Motion and Manifestation with Profuse Apologies. He informed the Court of
70
Withdraw Appeal, (2) the acceptance of his compliance with the September 20,
2010 and November 11, 2010 Resolutions of the Court of Appeals (which
sought for his client’s conformity to the Motion), (3) the grant of his Motion, and
(4) the recall of all previous orders or resolutions of the Court of Appeals. 72
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Authority to Sanction Members of the Bar
In his Comment dated March 7, 2014, Atty. Mortel argues that he honestly
73
believed that the case was already closed and terminated in light of his Motion
to Withdraw Appeal. Atty. Mortel avers that "[h]e did not expect that a
74
appeal is a matter of right, which did not need his client’s conformity. Thus, he
76
did not bother to visit MFV Jose Law Office again or send his messenger to
check with the law firm if there were resolutions or orders for him.77
as all Resolutions of the Court [of Appeals] were received by the messenger of
MFV Jose Law Office but not forwarded to him." Finally, he claims that he had
79
In the Resolution dated February 9, 2015, this Court noted Atty. Mortel’s
81
Comment and required the Sixth Division of the Court of Appeals Manila to file a
reply within 10 days from notice.
In the Resolution dated May 30, 2016, this Court dispensed with the filing of the
82
reply.
For resolution are the following issues:
First, whether there are grounds for this Court to probe into Atty. Marcelino
Ferdinand V. Jose’s possible administrative liability; and
Second, whether respondent Atty. Gideon D.V. Mortel should be imposed a
disciplinary sanction.
I
This Court has the authority to discipline an errant member of the bar. Rule 83
139-B, Section 1 of the Rules of Court provides that "[p]roceedings for the
disbarment, suspension, or discipline of attorneys may be taken by the Supreme
Court motu proprio[.]" However, the lawyer must have the "full opportunity upon
84
reasonable notice to answer the charges against him [or her,] among
others." Thus:
85
RULE 138
ATTORNEYS AND ADMISSION TO BAR
....
SEC. 30. Attorney to be heard before removal or suspension. — No attorney
shall be removed or suspended from the practice of his profession, until he has
had full opportunity upon reasonable notice to answer the charges against him,
to produce witnesses in his own behalf, and to be heard by himself or counsel.
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Authority to Sanction Members of the Bar
But if upon reasonable notice he fails to appear and answer the accusation, the
court may proceed to determine the matter ex parte.
Implicit in Atty. Jose and respondent’s arrangement is that Atty. Jose would
update respondent should there be any communication sent to respondent
through his law firm, and that respondent would regularly check with the law firm
if any court-delivered mail arrives for him.
86
Yet, Atty. Jose failed to measure up to his part of the deal. He delegated
everything to his messenger without adequately supervising him. All
communication, court orders, resolutions, notices, or other court processes
addressed to MFV Jose Law Office go through Atty. Jose’s desk for monitoring
and checking. 87
Appeals meant for respondent, Atty. Jose could have followed up with Lucero if
respondent was actually receiving the Court of Appeals’ orders or resolutions.
This is a fairly simple task requiring a quick yes or no, accomplishable in a few
seconds. As Managing Partner of his firm, Atty. Jose can be expected to have
supervisory duties over his firm’s associates and support staff, among others.
Alternatively, Atty. Jose could have contacted respondent himself. That he did
not know respondent’s number does not suffice. It bears stressing that Atty.
89
In the first place, Atty. Jose showed that he could easily get respondent’s new
number through a mutual friend. Yet, he only did so four (4) years later. In 91
today’s age of email, social media, web messaging applications, and a whole
gamut of digital technology easing people’s connectivity whenever and wherever
they are, it is fairly easy to get connected with someone without even leaving
one’s location.
Atty. Jose is fully aware of the importance of following court orders and
processes. It is reasonable to expect him to extend assistance to the lawyer to
whom he lent his office address—and in doing so, to the Court of Appeals—in
the speedy and efficient administration of justice in Bank of the Philippine
Islands.
Atty. Jose’s reading of this Court’s January 20, 2014 Resolution is also highly
92
questionable. While the Resolution was sent to his law firm, it was addressed
93
Even assuming that this Court’s January 20, 2014 Resolution is independent
of Bank of Philippine Islands, the present case being administrative in nature,
Atty. Jose’s action still invites suspicion.
Article III, Section 3(1) of the 1987 Constitution guarantees that:
ARTICLE III
Bill of Rights
....
SECTION 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
Under Article 32 of the Civil Code:
ARTICLE 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner impedes or
impairs any of the following rights and liberties of another person shall be liable
to the latter for damages:
....
(11) The privacy of communication and correspondence[.]
Atty. Jose took hold of this Court’s correspondence meant for respondent and
read it. On February 25, 2014, he "look[ed] into the said case [and] noticed that
97
the Resolution . . . was already in the pink form issued by the Supreme Court.
[He] saw the word ‘suspended’ and, upon perusal, saw that [respondent] was
now subjected to an administrative case[.]" 98
Atty. Jose may claim that he did so out of concern. However, if he were truly
concerned, his proper recourse would have been to inform respondent about
receiving mail from this Court, not to read it. Moreover, he would have informed
respondent, as early as 2010, that his law firm received several Court of
Appeals correspondences, and that these letters kept arriving for respondent
until 2013. 99
Therefore, under Rule 138, Section 30 of the Rules of Court, this Court directs
100
Atty. Jose to show cause, within 10 days from receipt of a copy of this
Resolution, why he should not be administratively sanctioned for failing to
ensure respondent’s prompt receipt of the Court of Appeals Resolutions, and for
reading this Court’s Resolution addressed to respondent.
II
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Authority to Sanction Members of the Bar
Atty. Jose stated under oath that respondent requested to use MFV Jose Law
Office’s address as his mailing address only in August 2010, after respondent
101
had already filed his appeal. The exact day in August is unknown.
102
yielded no result. In this hypothetical scenario, the Court of Appeals would have
sent the Notice to his old address on record. That he allegedly did not receive
the July 20, 2010 Notice from the Court of Appeals was, therefore, his own
lookout.
Assuming MFV Law Office accommodated respondent’s request after August
16, 2010, there could have been no instance where respondent sent De Leon to
MFV Law Office, if this Court were to believe his statement that he stopped
contacting MFV Law Office after he filed the Motion. 105
In either case, respondent had been remiss in his duty to keep himself informed
on the status of the case.
Respondent presents a different version of the facts. According to him, he
requested to use MFV Law Office’s address "as his mailing address for the
[purpose of] filing of the appeal[.]" This hints that he made his request before
106
he even elevated Bank of the Philippine Islands to the Court of Appeals, and
precisely for that purpose.
While the records do not show when respondent filed the appeal, it certainly
happened before July 20, 2010, the date when the Court of Appeals issued the
Notice for respondent to file an appellant’s brief. Under the Internal Rules of
107
the Court of Appeals, issuing a notice to file appellant’s brief means that it has
already received the appeal. Thus, insofar as respondent is concerned, the
108
July 20, 2010 Notice reached MFV Law Office, not his old address on record.
109
undersigned counsel and the same was true to all subsequent Orders or
Resolutions issued by the Court of Appeals[.] (Emphasis supplied)
110
Respondent dates back his request to use MFV Law Office’s address before
July 20 2010, while Atty. Jose avows that it happened in August 2010. The 111
inconsistent narration of facts shows that one of them did not give a truthful
account on the matter.
In any of the scenarios presented, respondent’s gross negligence and lack of
foresight is apparent. Respondent did not make it easy for MFV Law Office to
reach him personally or through his messenger.
First, respondent personally stopped visiting and communicating with the law
firm after August 16, 2010. A total of 12 Court of Appeals Resolutions arrived
112
Jose’s messenger, after a few text exchanges. Lucero states that he had no
114
idea how to find De Leon, and had not seen respondent for years. 115
Third, Atty. Mortel did not update MFV Law Office of his or De Leon’s present
work or phone number(s). Atty. Jose had to look for respondent’s mobile
116
number four (4) years later just so he could inform respondent about this
117
Fourth, there is no allegation that respondent left other contact details to MFV
Law Office, such as his home address, as a safety net.
What follows from all these is that respondent failed to adopt an "efficient and
orderly system of receiving and attending promptly to all judicial notices." The 120
We hold that an attorney owes it to himself and to his clients to adopt an efficient
and orderly system of receiving and attending promptly to all judicial notices. He
and his client must suffer the consequences of his failure to do so particularly
where such negligence is not excusable as in the case at bar. . . .
Aside from his failure to adopt an organized and efficient system of managing
his files and court notices, we also note that petitioner’s counsel, Atty. Almadro,
allowed one year to lapse before he again acted on the appeal of his client. . . .
Subsequently, the notice to file the appellant’s brief was received by the
househelp of Atty. Almadro, petitioner’s counsel, on February 21, 1996. It was
only on July 11, 1996 that Atty. Almadro claims to have discovered the notice. . .
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Authority to Sanction Members of the Bar
. Atty. Almadro apparently never bothered to check why he had not received any
notice for the filing of his client’s (appellant’s) brief.
122
Similarly, in this case, respondent did not adequately inquire why he had not
received any notice for the filing of Angelita De Jesus’ appellant’s brief." He 123
should have assumed that the Court of Appeals would send him a notice
regarding his appeal. Yet, he instructed De Leon to go to MFV Law Office only
initially, and cut contact with the law firm after August 16, 2010.
124 125
was made in good faith and was not done intentionally. 127
Rules of Court, which states that withdrawal of appeal is a matter of right before
the filing of the appellee’s brief. He claims to have honestly believed that the
filing of the motion had the effect of withdrawal of appeal. Thinking that the
129
case had been closed and terminated, he forgot all about it. 130
Filing a motion to withdraw appeal does not result in automatic withdrawal of the
appeal. The next-level court, before which a motion to withdraw appeal is filed,
still needs to resolve this motion. A motion prays for a relief other than by a
pleading. As the court may either grant or deny a motion, or otherwise defer
132
action on it until certain conditions are met, lawyers have the obligation to
apprise themselves of the court’s resolution, and not to simply second-guess it.
In this case, before the Court of Appeals acted on respondent’s Motion, it first
required proof of the client’s conformity. It is not unlikely that the Court of
133 134
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Authority to Sanction Members of the Bar
could not safely assume that the case had already been closed and terminated
until he received the Court of Appeals resolution on the matter.
IV
Both respondent and Atty. Jose point a finger at Lucero, Atty. Jose’s
137 138
According to respondent, Lucero simply left the Resolutions in MFV Law Office’s
racks or in Lucero’s table[.]" Lucero states that he did not know the relevance of
140
informed by his house-help of the notice which eventually got misplaced in his
office files, said counsel has only himself to blame for entrusting the matter to an
incompetent or irresponsible person[.]" 143
Respondent gave the MFV Law Office’s address to the Court of Appeals. Thus,
this is presumably where he wanted the orders of the Court of Appeals sent. He
cannot later excuse himself from complying with the court orders by stating that
he did not actually receive these orders for three (3) years. Respondent is
estopped from raising it as a defense. As far as courts are concerned, orders
and resolutions are received by counsel through the address on record they
have given.
It is well-noted that respondent informed the Court of Appeals of his present
address (No. 2806 Tower 2, Pioneer Highlands, Mandaluyong City) only on
March 3, 2014. 144
V
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Authority to Sanction Members of the Bar
Lawyers are particularly called upon to obey court orders and processes, and
this deference is underscored by the fact that willful disregard thereof may
subject the lawyer not only to punishment for contempt but to disciplinary
sanctions as well. Such is the situation in the instant case. We need not delve
into the factual findings of the trial court and the Court of Appeals on the
contempt case against respondents. Suffice it to say that respondent lawyer’s
commission of the contumacious acts have been shown and proven, and
eventually punished by the lower courts. (Emphasis supplied)
148
In its May 16, 2012 Resolution, the Court of Appeals found respondent guilty for
indirect contempt of court. On top of respondent’s punishment for contempt,
149
his willful disobedience of a lawful order of the Court of Appeals is a ground for
respondent’s removal or suspension.
Rule 138, Section 27 of the Rules of Court states:
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within 10 days from notice, but she was able to file only after one (1) year. The
151
In this case, respondent utterly disrespected the lawful orders of the court by
ignoring 12 Court of Appeals Resolutions. In Ong v. Atty. Grijaldo:
154 155
In Richards v. Asoy, the lawyer failed to comply with this Court’s Resolution
157
requiring him to file a comment and show cause why he should not be
administratively sanctioned or cited in contempt. He was also asked to comply
158
with this Court’s other Resolution requiring him to reimburse the complainant
within 10 days from notice. This Court found that respondent "had gone into
159
him from legal practice. When the lawyer later sought to be readmitted to the
161
bar, this Court denied his Petition to be reinstated. The lawyer was found to
162
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have failed to justify the long delay of nine (9) years in complying with this
Court’s Resolutions to reimburse complainant:
Respondent’s justification for his 9-year belated "compliance" with the order for
him to reimburse complainant glaringly speaks of his lack of candor, of his
dishonesty, if not defiance of Court orders, qualities that do not endear him to
the esteemed brotherhood of lawyers. The solemn oath which all lawyers take
upon admission to the bar to dedicate their lives to the pursuit of justice is
neither a mere formality nor hollow words meant to be taken lightly, but a sacred
trust that lawyers must uphold and keep inviolable at all times. The lack of any
sufficient justification or explanation for the nine-year delay in complying with the
Court’s July 9, 1987 and March 15, 1988 Resolutions to reimburse complainant
betrays a clear and contumacious disregard for the lawful orders of this Court.
Such disrespect on the part of respondent constitutes a clear violation of the
lawyer’s Code of Professional Responsibility[.]
....
Respondent denigrates the dignity of his calling by displaying a lack of candor
towards this Court. By taking his sweet time to effect reimbursement . . . he sent
out a strong message that the legal processes and orders of this Court could be
treated with disdain or impunity. (Citations omitted)
163
Here, respondent failed to justify the long delay of at least three (3) years in 164
complying with the Court of Appeals Resolutions requiring his client’s written
conformity to the Motion (2010) and information on his client’s current address
165
(2011). 166
Respondent also failed to justify the long delay in complying with other Court of
Appeals Resolutions (a) requiring him to show cause why he should not be cited
in contempt, and to comply with the Court of Appeals’ earlier Resolutions; (b) 167
citing him in indirect contempt and ordering him to pay a fine of ₱10,00000; (c) 168
reiterating the Resolutions that directed him to pay the fine and inform the Court
of Appeals of his client’s address, and warning him of a more severe sanction
should he fail to do so; (d) requiring him to show cause why he should not be
169
suspended from the practice of law for his refusal to pay the fine; and (e)
ordering him to again to comply with the Resolution that directed him to pay the
fine.
170
In Cuizon v. Atty. Macalino, this Court disbarred a lawyer for his obstinate
174
failure to comply with this Court’s Resolutions requiring him to file his comment
and for issuing a bouncing check. Found liable for contempt of court, the
175
lawyer was ordered imprisoned until he complied with this Court’s Resolution to
pay a fine and submit his comment:
By his repeated cavalier conduct, the respondent exhibited an unpardonable
lack of respect for the authority of the Court.
As an officer of the court, it is a lawyer’s duty to uphold the dignity and authority
of the court. The highest form of respect for judicial authority is shown by a
1âwphi1
sends the message that he is above the duly constituted judicial authorities of
this land, and he looks down on them with condescension. This Court agrees
with the Court of Appeals that his acts constitute gross misconduct and
insubordination or disrespect of court.
Gross misconduct is defined as an "inexcusable, shameful or flagrant unlawful
conduct" in administering justice, which prejudices the parties’ rights or
178
brandishes his client’s pleasure with his legal services. According to 182
Motion on February 23, 2011. The period within which to appeal the February
184
23, 2011 denial had clearly lapsed when respondent filed the Omnibus Motion
185
Dulay wanted to withdraw the appeal, but respondent’s negligence and lack of
187
neglect, and failure to update his client, in addition to his misappropriation of his
client’s money, led to his disbarment from the practice of law. 189
Here, respondent blindsided his client on the real status of Bank of Philippine
Islands. He failed to diligently attend to the legal matter entrusted to him. The
1âwphi1
case, instead of being closed and terminated, came back to life on appeal due
to his neglect and lack of diligence. As the Court of Appeals correctly found:
Failure of Atty. Mortel to comply with the Resolutions of [the Court of Appeals]
has prejudiced the right of his client, herein respondent-oppositor-appellant, to a
just determination of her cause. His failure or obstinate refusal without
justification or valid reason to comply with [the Court of Appeal’s] directives
constitutes disobedience or defiance of the lawful orders of [the Court of
Appeals], amounting to gross misconduct and insubordination or disrespect. The
foregoing acts committed by Atty. Mortel are sufficient cause for his suspension
pursuant to Sec. 28, in relation to Section 27 of Rule 138 of the Rules of Court. 190
x-----------------------x
RESOLUTION
LEONEN, J.:
Being her surviving spouse, I am. the sole legal heir entitled to
succeed to and inherit the estate of said deceased who did not
leave any descendant or any other heir entitled to her
estate.9 (Emphasis in the original underscoring supplied)
The Complaint in Civil Case No. 09-269 alleged that Marilu Turla
is an heir of Mariano Turla,13 which allegedly contradicts the
Affidavit of Self-Adjudication that Atty. Santos drafted.14 Hence,
Atty. Santos represented clients with conflicting interests.15
CROSS-EXAMINATION BY:
ATTY. CARINGAL
....
A : Yes, sir.
A : I was not a Ninong when I first knew Marilu Turla, I was just
recently married to one of her cousins.
....
THE WITNESS
THE COURT
ATTY. CARINGAL
THE WITNESS
: Yes, sir.
A : Of course.
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THE COURT
: Exhibit?
ATTY. CARINGAL
THE WITNESS
: Yes, sir.
Q : And as you admitted, you prepared you drafted [sic] this Extra
Judicial.
A : Yes, sir.
....
ATTY. CARINGAL
....
THE COURT
THE COURT
ATTY. CARINGAL
THE COURT
THE WITNESS
ATTY. CARINGAL
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: That is not true. Mr. Witness, being a lawyer[,] you admit before
this court that you have drafted a document that caused the
transfer of the estate of the decease[d] Rufina Turla.
THE WITNESS
: Yes, sir.
....
ATTY. CARINGAL
THE WITNESS
14.5 Respondent attorney could not have been mistaken about the
fact recited in the Affidavit of Adjudication, etc. that said deceased
(Rufina de Castro Turla) "did not leave any descendant, xxx, or any
other heir entitled to her estate’ [sic] . . . [.] 32 (Emphasis in the
original)
....
RULE 139-B
DISBARMENT AND DISCIPLINE OF ATTORNEYS
....
The issues in this case are: (1) whether respondent Atty. Santos
violated the Code of Professional Responsibility; and (2) whether
the penalty of suspension of three (3) months from the practice of
law is proper.
This court accepts and adopts the findings of fact of the IBP Board
of Governors’ Resolution. However, this court modifies the
recommended penalty of suspension from the practice of law from
three (3) months to one (1) year.
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....
As officers of the court, lawyers have the duty to uphold the rule of
law. In doing so, lawyers are expected to be honest in all their
dealings.67 Unfortunately, respondent was far from being honest.
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This court notes that the wording of the IBP Board of Governors’
Resolutions dated May 10, 2013 and March 22, 2014 seems to
imply that it is the Integrated Bar of the Philippines that has the
authority to impose sanctions on lawyers. This is wrong.
JUDICIAL DEPARTMENT
....
....
RULE 138
ATTORNEYS AND ADMISSION TO BAR
....
Time and again, this Court emphasizes that the practice of law is
imbued with public interest and that "a lawyer owes substantial
duties not only to his client, but also to his brethren in the
profession, to the courts, and to the nation, and takes part in one
of the most important functions of the State—the administration of
justice—as an officer of the court." Accordingly, "[l]awyers are
bound to maintain not only a high standard of legal proficiency,
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Only this court can impose sanctions on members of the Bar. This 1âwph i1
SO ORDERED.
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DECISION
PERLAS-BERNABE, J.:
The Facts
particularly, the COMELEC's TRO and the RTC's February 25, 2014
Order. 17 As a result, respondent allegedly violated Canons 1, 10, 15, and
19 of the CPR.18
In his answer, 19 respondent claimed that, first, since the case records had
been transmitted to the COMELEC on January 31, 2014, the RTC was
divested of jurisdiction over the case; therefore, it had no more power to
issue the February 25, 2014 Order. 20 Respondent put forward the same
reason for filing the five manifestations with the COC instead of the RTC
Judge.21 Second, the manifestations contained no misleading statements
or factual deviations. He merely stated in his manifestations his honest
belief that the twenty-day period had already lapsed when the COMELEC
issued its TRO; hence, it no longer had any binding effect. He explained
that the filing of manifestations to highlight his position did not violate any
rule. 22 Third, he allegedly filed those manifestations pursuant to his duty
under Canon 18 of the CPR to represent his client with competence and
diligence. 23
all officers and employees of the court, including the clerk of court. Hence,
respondent was unfair to the other party and employed deceit when he
filed the manifestations. As a result, the other party was not afforded due
process by being deprived of an opportunity to oppose the
manifestations 26
On October 10, 2016, respondent filed a petition for review30 before the
Court purportedly pursuant to the procedure laid out in Ramientas v.
Reyala (Ramientas ). 31
The core issue in this case is whether or not respondent should be held
administratively liable for the acts complained of.
I.
At the outset, the Court deems it proper to clarify that respondent's filing
of the instant petition for review does not conform with the standing
procedure for the investigation of administrative complaints against
lawyers.
Section 12 (b) and (c) of Rule 139-B of the Rules of Court, as amended
by Bar Matter No. 1645 dated October 13, 2015,32 states:
xxxx
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b) After its review, the Board, by the vote of a majority of its total
membership, shall recommend to the Supreme Court the dismissal of the
complaint or the imposition of disciplinary action against the respondent.
The Board shall issue a resolution setting forth its findings and
recommendations, clearly and distinctly stating the facts and the reasons
on which it is based. The resolution shall be issued within a period not
exceeding thirty (30) days from the next meeting of the Board following
the submission of the Investigator's report.
c) The Board's resolution, together with the entire records and all
evidence presented and submitted, shall be transmitted to the Supreme
Court for final action within ten (10) days from issuance of the resolution.
x x x x (Emphases supplied)
Under the old rule, the IBP Board had the power to "issue a decision" if
the lawyer complained of was either exonerated or meted a penalty of
"less than suspension of disbarment." In this situation, the case would be
deemed terminated unless an interested party files a petition before the
Court.33 The case of Ramientas,34 which was cited as respondent's basis
for filing the present petition for review, was pronounced based on the old
rule.35
In contrast, under the amended provisions cited above, the IBP Board's
resolution is merely recommendatory regardless of the penalty imposed
on the lawyer. The amendment stresses the Court's authority to discipline
a lawyer who transgresses his ethical duties under the CPR.
the case records were forwarded to the Court. The latter is then bound to
fully consider all documents contained therein, regardless of any further
pleading filed by any party - including respondent's petition for review,
which the Court shall nonetheless consider if only to completely resolve
the merits of this case and determine respondent's actual administrative
liability.
II.
After a judicious review of the case records, the Court agrees with the IBP
that respondent should be held administratively liable for his violations of
the CPR. However, the Court finds it proper to impose a lower penalty.
xxxx
xxxx
xxxx
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Rule 10.03 - A lawyer shall observe the rules of procedure and shall not
misuse them to defeat the ends of justice.
Contrary to these edicts, respondent improperly filed the five (5) motions
as "manifestations" to sidestep the requirement of notice of hearing for
motions. In effect, he violated his professional obligations to respect and
observe procedural rules, not to misuse the rules to cause injustice, and
to exhibit fairness towards his professional colleagues.
In the present case, respondent filed five (5) manifestations before the
COC praying for affirmative reliefs. The Court agrees with the IBP that
these "manifestations" were in fact motions, since reliefs were prayed for
from the court - particularly, the issuance of the writ of execution pending
appeal. By labelling them as manifestations, respondent craftily
sidestepped the requirement of a notice of hearing and deprived the other
party of an opportunity to oppose his arguments. Moreover, the fact that
he submitted these manifestations directly to COC, instead of properly
filing them before the RTC, highlights his failure to exhibit fairness towards
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In the present case, respondent filed five (5) manifestations before the
COC praying for affirmative reliefs. The Court agrees with the IBP that
these "manifestations" were in fact motions, since reliefs were prayed for
from the court - particularly, the issuance of the writ of execution pending
appeal. By labelling them as manifestations, respondent craftily
sidestepped the requirement of a notice of hearing and deprived the other
party of an opportunity to oppose his arguments. Moreover, the fact that
he submitted these manifestations directly to COC, instead of properly
filing them before the RTC, highlights his failure to exhibit fairness towards
the other party by keeping the latter completely unaware of his
manifestations. Undoubtedly, respondent violated his professional
obligations under the CPR.
Respondent further argues that his filing of the manifestations with the
COC is justified considering that the RTC had already lost jurisdiction over
the case and the COC had the ministerial duty to issue the writ of
execution. His argument fails to persuade. The Court has ruled that a
COC has a ministerial duty to issue a writ of execution when the judge
directs its issuance.41 In this case, however, the RTC Judge had issued
the second Order (dated February 25, 2014) explicitly directing the COC
"NOT TO ISSUE a Writ of Execution." Therefore, the COC in this case did
not have a ministerial duty to issue the writ of execution. If respondent
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honestly believed that his client was entitled to the writ, then he should not
have clandestinely submitted ex parte manifestations directly to the COC
to coerce the latter to grant his intended relief. Instead, respondent should
have filed the proper motions before the court, which alone has the
inherent power to grant his prayer pursuant to Section 5 (c), (d), and (g),
Rule 135 of the Rules of Court.42
The Court has the plenary power to discipline erring lawyers. In the
exercise of its sound judicial discretion, it may to impose a less severe
punishment if such penalty would achieve the desired end of reforming
the errant lawyer. 43 In light of the foregoing discussion, the Court deems
that a penalty of suspension from the practice of law for three (3) months
is sufficient and commensurate with respondent's infractions.44
As a final note, the Court stresses that a lawyer's primary duty is to assist
the courts in the administration of justice. Any conduct that tends to delay,
impede, or obstruct the administration of justice contravenes this
obligation. 45Indeed, a lawyer must champion his client's cause with
competence and diligence, but he cannot invoke this as an excuse for his
failure to exhibit courtesy and fairness to his fellow lawyers and to respect
legal processes designed to afford due process to all stakeholders.
Let a copy of this Decision be furnished to the Office of the Bar Confidant,
to be attached to respondent's personal record as a member of the Bar.
Furthermore, let copies of the same be served on the Integrated Bar of
the Philippines and the Office of the Court Administrator, which is directed
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to circulate them to all courts in the country for their information and
guidance.
SO ORDERED.
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RESOLUTION
PER CURIAM:
In a Per Curiam Decision2 dated September 20, 2016, the Court, ruling in
favor of the complainant, found that respondent was guilty of deceit,
malpractice and gross misconduct for converting the money of his client to
his own personal use without her consent. By his failure to make good of
their agreement to use the proceeds of the loan for the transfer of the title
in complainant's name, Atty. Pasagui not only betrayed the trust and
confidence reposed upon him by his client, but he is likewise guilty of
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engaging in dishonest and deceitful conduct. For his acts, Atty. Pasagui
degraded himself and besmirched the fair name of an honorable
profession. Thus, the Court affirmed the findings and conclusions of the
IBP Board of Governors, but modified the recommended penalty and
instead imposed the penalty to Disbarment. The Court also ordered Atty.
Pasagui to return the loan proceeds he received from Perpetual Help
Credit Cooperative, Inc. (PHCCI) on behalf of the complainant, with
interest, together with all the documents pertinent to the loan application
and those he received from the complainant, to wit:
Let a copy of this Decision be furnished to the Office of the Bar Confidant,
to be appended to the personal record of respondent; the Integrated Bar
of the Philippines; and the Office of the Court Administrator for circulation
to all courts in the country for their information and guidance.
SO ORDERED.3
If the appeal has been duly perfected and finally resolved, the execution
may forthwith be applied for in the court of origin, on motion of the
judgment obligee, submitting therewith certified true copies of the
judgment or judgments or final order or orders sought to be enforced and
of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of
justice so requires, direct the court of origin to issue the writ of execution.
After the trial court has lost jurisdiction, the motion for execution pending
appeal may be filed in the appellate court.
In this particular case, however, the case did not originate from the lower
courts, but instead is an original action for disbarment filed by the
complainant against Atty. Pasagui, accusing the latter of Estafa through
Abuse of Confidence. 5
Consequently, pursuant to Section 6,6 Rule 135 of the Rules of Court, the
Clerk of Court of the Supreme Court should issue the Writ of Execution
prayed for. But, in as much as this Court does not have a sheriff of its own
to execute its own decision and considering that the complainant resides
in Tacloban City, the Ex-Officio Sheriff of Tacloban City is directed to
execute the money judgment against the respondent in accordance with
Rule 39, Section 97 of the Rules of Court. Likewise, the Ex-Officio Sheriff
of Tacloban City is ordered to enforce the Court's directive for respondent
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The Clerk of Court of the Supreme Court shall transmit the Writ of
Execution to the Clerk of Court and Ex Officio Sheriff of the Regional Trial
Court in Tacloban City (with the certified copies of this Resolution and the
decision promulgated on September 20, 2016) for prompt service and
implementation either directly or by a duly authorized deputy sheriff.
The legal fees for the service and implementation of the Writ of Execution
as provided in Rule 141 of the Rules of Court shall be paid by respondent
ATTY. PASAGUI.
SO ORDERED.