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4/4/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 479

VOL. 479, JANUARY 23, 2006 363


Genil vs. Rivera
*
A.M. No. MTJ­06­1619. January 23, 2006.
(Formerly OCA I.P.I. No. 04­1556­MTJ.)

JESUSA ODONEL GENIL, complainant, vs. JUDGE


ROGACIANO Y. RIVERA, Municipal Trial Court, Sta.
Catalina, Negros Oriental, respondent.

Criminal Procedure; Preliminary Investigation; Right of


Confrontation; Section 3(e) of Rule 112 provides that parties in a
preliminary investigation have no right to examine or cross­
examine.—On top of the above­quoted provision of Sec. 3(e) of
Rule 112 that the parties in a preliminary investigation have no
right to examine or cross­examine, the Rule on Examination of a
Child Witness provides that the court shall exercise control over
the questioning of children so as to facilitate the ascertainment of
the truth and ensure that questions are stated in a form
appropriate to their developmental level and protect them from
harassment or undue embarrassment.
Same; Same; Evidence; Witnesses; Rules on Examination of a
Child Witness; The Rule on Examination of a Child Witness
provides that when a child witness testifies, the court may, motu
proprio, order the exclusion from the courtroom of all persons who
do not have direct

_______________

* EN BANC.

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364 SUPREME COURT REPORTS ANNOTATED

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interest in the case.—The same Rule on Examination of a Child


Witness provides that when a child testifies, the court may, motu
proprio, order the exclusion from the courtroom of all persons who
do not have a direct interest in the case. In issuing such order, the
court is to consider, inter alia, the developmental level of the
child, the nature of the crime, and the nature of his testimony
regarding the crime. It may also exclude the public from the
courtroom if the evidence to be produced is of such character as to
be offensive to decency or public morals.
Same; Same; Right of Confrontation; The accused in a
preliminary investigation has no right to cross­examine the
witness which the complainant may present.—As the above­quoted
provisions of the Rules direct, after a preliminary investigation is
conducted, the investigating judge must perform his ministerial
duty to transmit within ten days after the conclusion thereof the
resolution of the case together with the entire records to the
provincial prosecutor. If on the other hand he determines, after
examining the complaint and other documents offered in support
thereof, that there is no ground to continue with the inquiry, he
should dismiss the complaint and transmit the order of dismissal
together with the records of the case to the provincial prosecutor
within ten days from the filing of the complaint. And, examination
or cross­examination by the parties is proscribed. Yet respondent
not only allowed SPO4 Cadungog who acted as prosecutor to
cross­examine the accused Roderick Sales; he also allowed the
defense counsel to propound questions to Nancy and her mother.
It is a fundamental principle that the accused in a preliminary
investigation has no right to cross­examine the witnesses which the
complainant may present. Section 3, Rule 112 of the Rules of
Court expressly provides that the respondent shall only have the
right to submit a counter­affidavit, to examine all other evidence
submitted by the complainant and, where the fiscal sets a hearing
to propound clarificatory questions to the parties or their
witnesses, to be afforded an opportunity to be present but without
the right to examine or cross­examine.
Courts; Judges; Gross Ignorance of the Law; Judges owe it to
the public to be knowledgeable, hence, they are expected to have
more than just a modicum of acquaintance with the statutes and
procedural rules.—Judges owe it to the public to be
knowledgeable, hence, they are expected to have more than just a
modicum of acquaintance

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VOL. 479, JANUARY 23, 2006 365

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Genil vs. Rivera

with the statutes and procedural rules. When the law is so


elementary, not to know it or to act as if one does not know it
constitutes gross ignorance of the law, the mainspring of injustice.
And judges must be faithful to the laws and maintain professional
competence. x x x Indeed, competence is a mark of a good judge.
When a judge displays an utter lack of familiarity with the rules,
he erodes the public’s confidence in the competence of our courts.
Such is gross ignorance of the law. Having accepted the exalted
position of a judge, he owes the public and the court the duty to be
proficient in the law. Unfamiliarity with the Rules of Court is a
sign of incompetence. Basic rules must be at the palm of his
hands. A judge must be acquainted with legal norms and precepts
as well as with procedural rules. x x x x x x Verily, failure to
follow basic legal commands embodied in the law and the
Rules constitutes gross ignorance of the law, from which
no one is excused, and surely not a judge.

ADMINISTRATIVE MATTER in the Supreme Court. Gross


Ignorance of the Law and Procedure.

The facts are stated in the opinion of the Court.

CARPIO­MORALES, J.:

Judge Rogaciano Y. Rivera (respondent) of the Municipal


Trial Court (MTC) of Sta. Catalina,
1
Negros Oriental is the
subject of two letter­complaints filed on September 11,
2003 before the Office of the Chief Justice by Jesusa
Odonel Genil (complainant), barangay captain of Amio,
Sta. Catalina, Negros Oriental.
The events which spawned the filing of the complaint
against respondent are related by complainant as follows:
On May 30, 2003, one of complainant’s constituents,
Nancy Silfaban (Nancy), filed before the MTC of Sta.
Catalina, Negros Oriental two criminal complaints against
Roderick Sales, one for rape and the other for forcible
abduction with rape, docketed as Criminal Case Nos. 3791
and 3792, respec­

_______________

1 Rollo, pp. 2­4.

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tively. On even date, Nancy also filed a criminal complaint


against Janice Sales for violation of Republic Act 7610,
otherwise known as the Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act,
docketed as Criminal Case No. 3793.
Respondent conducted a preliminary investigation of
Criminal Case Nos. 3791 and 3792 two and a half months
later or on August 13, 2003 after the accused was ordered
to submit his counter­affidavit, which preliminary
investigation was made in open court.
During the above­said preliminary investigation, Nancy,
a minor, was called to the witness stand and, in the course
of her testimony subjected to humiliation as all those
present, including respondent, the counsel for the defense
Atty. Arturo Erames, and SPO4 Herminigildo Ortiz
Cadungog (SPO4 Cadungog) of the Philippine National 2
Police (PNP) who acted as prosecutor, were laughing.
Respecting Criminal Case No. 33793 against Janice
Sales, respondent had yet to act on it.
Apprehensive that
4
respondent would dismiss the cases
which Nancy filed, complainant requested this Court for a
change of venue.
The letter­complaints were eventually referred for
investigation to Judge Orlando C. Velasco of Branch 63 of
the Regional Trial Court of Bayawan City who directed
respondent to file his Comment thereon and to require the
public prosecutor and the counsel of Roderick Sales to also
submit their respective comments.
Complying 5 with Judge Velasco’s directive, respondent,
by Comment dated October 9, 2003, explained that
preliminary investigation on the complaints filed by Nancy
were not im­

_______________

2 Id., at p. 2.
3 Id., at p. 3.
4 Ibid.
5 Id., at pp. 23­25.

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Genil vs. Rivera

mediately conducted as the evidence was “weak” and


“unbelievable,” it being “manifestly inconsistent with, and
6
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6
repugnant to, the natural course of things.”
Respecting the conduct of preliminary investigation in
open court on August 13, 2003, respondent claimed that not
only did Nancy not request otherwise; she, albeit a minor,
“looks energetic, psychologically mature and somewhat
aggressive who answers questions quickly,” and there was
nothing in her affidavit or testimony which warranted the
exclusion of the public from the proceedings. And
respondent disclaimed the occurrence of any laughing
incident during the preliminary investigation,7 he adding
that “all were eager to observe the proceedings.”
On complainant’s request for change of venue,
respondent suggested that the cases be forwarded to the
Office of the Provincial Prosecutor of Negros Oriental,
Dumaguete City, and unless 8
otherwise directed, he would
proceed to resolve the
9
cases.
In his Comment, SPO4 Cadungog claimed that he is not
learned in the law which could explain complainant’s
dissatisfaction with his performance when he acted as
prosecutor during the preliminary investigation of the
complaints which Nancy filed. And he too denied that 10
there
was laughing during the preliminary investigation. 11
Defense counsel Atty. Erames, by his Comment, also
disclaimed that there was laughing during the preliminary
investigation. He advanced though that the relatives of the
accused in the first two criminal cases “may have been
pleased” with Nancy’s testimonies which tended to support

_______________

6 Id., at p. 23.
7 Id., at p. 24.
8 Ibid.
9 Id., at pp. 33­34.
10 Id., at p. 33.
11 Id., at pp. 35­36.

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Genil vs. Rivera

the defense claim that the accused and Nancy were


sweethearts. On complainant’s request for transfer 12
of
venue of the criminal cases, he interposed
13
no objection.
In his Investigation Report dated October 16, 2003,
Judge Velasco noted that Nancy was subjected to
“unhampered ridicule, embarrassment and humiliation”
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during the preliminary investigation, and respondent even


“ordered 14her to turn clockwise to the delight of every one
present.”
Regarding the status of Criminal Case Nos. 3791 and
3792, Judge Velasco reported that they had remained
unresolved by respondent, 15
while Criminal Case No. 3793
had yet to be16acted upon.
By letter dated August 13, 17
2004, respondent, in
compliance with two telegrams dated January 23, 2004
and July 19, 2004 of the Office of the Court Administrator
(OCA) directing him to report the status of the cases,
informed that they had been resolved and were ready for
transmittal to the Office of the Provincial Prosecutor of
Negros Oriental,
18
Dumaguete City for further disposition.
By Report of February 14, 2005, the OCA recommends
that the administrative case against respondent be
docketed as a regular administrative matter and that he be
fined in the amount of P21,000 for gross ignorance of the
law, with warning that a repetition of the same or similar
act would be dealt with more severely, in light of the
following observations:

“x x x [Respondent] took no action on Criminal Case No. 3793


from the date of its filing on 30 May 2003 until 09 October 2003
and offered no explanation for its delay before him. He conducted
the

_______________

12 Id., at p. 36.
13 Id., at pp. 26­27.
14 Id., at p. 26.
15 Ibid.
16 Id., at p. 42.
17 Id., at pp. 43­44.
18 Id., at pp. 81­83.

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VOL. 479, JANUARY 23, 2006 369


Genil vs. Rivera

preliminary investigation in Criminal Case Nos. 3791 and 3792


only on 13 August 2003, but he has not yet submitted his
resolutions thereon to the Provincial Prosecutor. Assuming he had
already resolved the cases on 13 August 2004, still there was
undue delay. x x x
Respondent judge displayed blatant insensitivity to the child
victim. He allowed the defense counsel to cross­examine the child
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witness and her mother which caused them extreme humiliation


and embarrassment. x x x Parties cannot be subjected to direct
examination or cross­examination. Questions or issues that may
arise during the investigation should be addressed to the
investigating judge who should propound the same to the party
concerned. Noteworthy is that the Rule on Examination of a Child
Witness (A.M. No. 004­07­SC 21 November 2000) does not permit
a defense counsel to even approach a child who is testifying if it
appears that the child is fearful of or intimidated by the counsel. x
x x Neither does the Rule require a manifestation from the child or
her mother to exclude the public from the hearing. The court may
motu proprio exclude the public from the courtroom to protect the
right to privacy of the child; if requiring the child to testify in
open court would cause psychological harm to him; if it would
hinder the ascertainment of truth or result in his inability to
effectively communicate due to embarrassment, fear or timidity;
and if the evidence to be produced is of such character as to be
19
offensive to decency or public morals.” (Emphasis and italics
supplied)
20
By Resolution of March 16, 2005, this Court noted the
February 14, 2005 OCA Report and required the parties to
manifest within 20 days whether they were submitting the
case on the basis of the pleadings/records already filed and
submitted. 21
Respondent has manifested, by Compliance submitted
on June 3, 2005, that he is submitting the case for
resolution. Appended to22
the Compliance was the December
28, 2004 Resolution of Assistant Prosecutor Gloria
Cynthia P. Icao of

_______________

19 Id., at pp. 82­83.


20 Id., at p. 84.
21 Id., at p. 88.
22 Id., at pp. 86­87.

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370 SUPREME COURT REPORTS ANNOTATED


Genil vs. Rivera

the Provincial Prosecution Office of Negros Oriental,


bearing the approval of the Provincial Prosecutor in I.S.
Case No. 2004­544 which affirmed and adopted the
Resolution of the MTC of Sta. Catalina, Negros Oriental
dismissing Criminal Case No. 3793 (People v. Janice Sales)

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for lack of merit.


23
This Court noted respondent’s Compliance
by Resolution of July 6, 2005, as it did note complainant’s
failure to comply
24
with the March 16, 2005 Resolution, by
Resolution of August 10, 2005.
Section 3(b), Rule 112 of the Rules on Criminal
Procedure provides that within ten (10) days after the filing
of a criminal complaint, the investigating officer shall
either dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent to
which a copy of the complaint and supporting affidavits
and documents should be attached.
Section 3(e) and (f) of the same Rule provide:

(e) The investigating officer may set a hearing if there are


facts and issues to be clarified from a party or a witness.
The parties can be present at the hearing but without the
right to examine or cross­examine. They may, however,
submit to the investigating officer questions which may be
asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of
the counter­affidavits and other documents or from the expiration
of the period for their submission. It shall be terminated within
five (5) days.

(f) Within ten (10) days after the investigation, the


investigating officer shall determine whether or not there
is sufficient ground to hold the respondent for trial.
(Emphasis and italics Supplied)

Moreover, Section 5 of still the same Rule provides:

_______________

23 Id., at p. 96.
24 Id., at p. 97.

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Genil vs. Rivera

SEC. 5. Resolution of investigating judge and its review.—Within


ten (10) days after the preliminary investigation, the
investigating judge shall transmit the resolution of the case to
the provincial or city prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by the Sandiganbayan in
the exercise of its original jurisdiction, for appropriate action. The
resolution shall state the findings of facts and the law supporting
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his action, together with the record of the case which shall
include: (a) the warrant, if the arrest is by virtue of a warrant; (b)
the affidavits, counter­affidavits and other supporting evidence of
the parties; (c) the undertaking or bail of the accused and the
order for his release; (d) the transcripts of the proceedings during
the preliminary investigation; and (e) the order of cancellation of
his bail bond, if the resolution is for the dismissal of the
complaint.
x x x (Emphasis and italics supplied)

On top of the above­quoted provision of Sec. 3(e) of Rule


112 that the parties in a preliminary investigation have no
right to examine or cross­examine, 25
the Rule on
Examination of a Child Witness provides that the court
shall exercise control over the questioning of children so as
to facilitate the ascertainment of the truth and ensure that
questions are stated in a form appropriate to their
developmental level and 26
protect them from harassment or
undue embarrassment.
The same Rule on Examination of a Child Witness
provides that when a child testifies, the court may, motu
proprio, order the exclusion from the courtroom of all
persons who do not have a direct interest in the case. In
issuing such order, the court is to consider, inter alia, the
developmental level of the child, the nature of the crime,
and the nature of his testimony regarding the crime. It may
also exclude the public from the courtroom if the evidence
to be produced is of such 27
character as to be offensive to
decency or public morals.

_______________

25 A.M. No. 00­4­07­SC.


26 Rule on Examination of a Child Witness, sec. 19.
27 Rule on Examination of a Child Witness, sec. 23.

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Genil vs. Rivera

As reflected earlier, while the criminal complaints of Nancy


were filed on May 30, 2003 before the MTC, it was only on
August 13, 2003 or after two and a half months that
respondent conducted the preliminary investigation for
Criminal Case Nos. 3791 and 3792. And, per the
Investigation Report of Judge Velasco, as of October 16,
2003 or more than four months after Criminal Case No.

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3793 was filed, no action had yet been taken thereon by


respondent.
By respondent’s admission, as of August 13, 2004 or
more than a year after the criminal complaints were filed
and exactly a year after the preliminary investigation for
Criminal Case Nos. 3791 and 3792 was conducted, his
resolutions thereon had yet to be transmitted to the Office
of the Provincial Prosecutor of Negros Oriental, Dumaguete
City.
As the above­quoted provisions of the Rules direct, after
a preliminary investigation is conducted, the investigating
judge must perform his ministerial duty to transmit within
ten days after the conclusion thereof the resolution of the
case together
28
with the entire records to the provincial
prosecutor. If on the other hand he determines, after
examining the complaint and other documents offered in
support thereof, that there is no ground to continue with
the inquiry, he should dismiss the complaint and transmit
the order of dismissal together with the records of the case
to the provincial prosecutor within ten days from the filing
of the complaint. And, examination or cross­examination by
the parties is proscribed. Yet respondent not only allowed
SPO4 Cadungog who acted as prosecutor to cross­examine
the accused Roderick Sales; he also allowed the defense
counsel to propound questions to Nancy and her mother.

“It is a fundamental principle that the accused in a preliminary


investigation has no right to cross­examine the witnesses which the

_______________

28 Domingo v. Reyes, 368 Phil. 12, 18; 308 SCRA 537, 540 (1999) (citation
omitted), Cantela v. Almoradie, A.M. No. MTJ­93­749, February 7, 1994, 229
SCRA 712, 716.

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VOL. 479, JANUARY 23, 2006 373


Genil vs. Rivera

complainant may present. Section 3, Rule 112 of the Rules of


Court expressly provides that the respondent shall only have the
right to submit a counter­affidavit, to examine all other evidence
submitted by the complainant and, where the fiscal sets a hearing
to propound clarificatory questions to the parties or their
witnesses, to be afforded an opportunity to be present but without
29
the right to examine or cross­examine.” (Italics supplied)

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Indubitably then, respondent was remiss in the


performance of his duties when he not only allowed the
cross­examination of the parties during the preliminary
investigation but also failed to resolve the criminal
complaints within the period mandated by law.
Judges owe it to the public to be knowledgeable, hence,
they are expected to have more than just a modicum of 30
acquaintance with the statutes and procedural rules.
When the law is so elementary, not to know it or to act as if
one 31does not know it constitutes32
gross ignorance of the
law, the mainspring of injustice.
And judges must be faithful
33
to the laws and maintain
professional competence.

“x x x Indeed, competence is a mark of a good judge. When a judge


displays an utter lack of familiarity with the rules, he erodes the
public’s confidence in the competence of our courts. Such is gross
ignorance of the law. Having accepted the exalted position of a
judge,

_______________

29 Paderanga v. Drilon, G.R. No. 96080, April 19, 1991, 196 SCRA 86, 93.
30 Domondon v. Lopez, 432 Phil. 953, 964; 383 SCRA 376, 388 (2002) (citation
omitted).
31 Mina v. Vianzon, A.M. No. RTJ­02­1682, March 23, 2004, 426 SCRA 56, 61,
Agcaoili v. Ramos, A.M. No. MTJ­92­6­251, February 7, 1994, 229 SCRA 705, 710
(citation omitted), Uy v. Dizon­Capulong, A.M. No. RTJ­91­766, April 7, 1993, 221
SCRA 87, 95 (citation omitted).
32 Obedencio, Jr. v. Murillo, A.M. No. RTJ­03­1753, February 5, 2004, 422
SCRA 21, 24 (citation omitted).
33 Code of Judicial Conduct, Canon 3, Rule 3.01.

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374 SUPREME COURT REPORTS ANNOTATED


Genil vs. Rivera

he owes the public and the court the duty to be proficient in the
law. Unfamiliarity with the Rules of Court is a sign of
incompetence. Basic rules must be at the palm of his hands. A
judge must be acquainted with legal norms and precepts as well
as with procedural rules. x x x
xxxx
Verily, failure to follow basic legal commands embodied
in the law and the Rules constitutes gross ignorance of the
law, from which no one is excused, and surely not a
34
judge.” (Emphasis and italics supplied)

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For gross ignorance of the law or procedure then, which is


classified as a serious charge under Rule 140 35 of the Rules
of Court, as amended by A.M. No. 01­8­10­SC, this Court
faults respondent for which, under Section 11 of the same
rule, any of the following sanctions may be imposed: (1)
dismissal from the service, forfeiture of all or part of the
benefits as the Court may determine, and disqualification
from reinstatement or appointment to any public office,
including government­owned or controlled corporations;
provided, however, that the forfeiture of benefits shall in no
case include accrued leave credits; (2) suspension from
office without salary and other benefits for more than three
(3) but not exceeding six (6) months; or (3) a fine of more
than P20,000 but not exceeding P40,000.
The recommendation of the OCA to impose a fine of
P21,000, being well­taken, is approved.
WHEREFORE, for gross ignorance of the law and
procedure, respondent, Judge Rogaciano Y. Rivera of the
Municipal Trial Court of Sta. Catalina, Negros Oriental, is
FINED in the amount of TWENTY ONE THOUSAND
(P21,000) PESOS and STERNLY WARNED that a
repetition of the same or similar act will merit a more
severe penalty.

_______________

34 Guillen v. Cañon, 424 Phil. 81, 88­89; 373 SCRA 70, 76 (2002)
(citations omitted).
35 Promulgated on September 11, 2001 and effective on October 1, 2001.

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VOL. 479, JANUARY 23, 2006 375


Office of the Court Administrator vs. Alumbres

Let a copy of this Decision be entered in Judge Rivera’s


personal record.
SO ORDERED.

          Panganiban (C.J.), Puno, Quisumbing, Ynares­


Santiago, Sandoval­Gutierrez, Carpio, Austria­Martinez,
Corona, Callejo, Sr., Azcuna, Tinga, Chico­Nazario and
Garcia, JJ., concur.

Judge Rogaciano Y. Rivera meted with P21,000.00 fine


for gross ignorance of the law, with stern warning against
repetition of similar act.

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Notes.—A judge may not be administratively charged


for mere errors of judgment in the absence of a showing of
any bad faith, malice or corrupt purpose on his part. (Heirs
of the Late Nasser D. Yasin vs. Felix, 250 SCRA 545 [1995])
A judge is guilty of gross ignorance of the law and grave
abuse of judicial authority for having precipitately
adjudged a person guilty of indirect contempt in utter
disregard of the elementary rules of procedure. (Castaños
vs. Escaño, Jr., 251 SCRA 174 [1995])

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