Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
A.C. No. 5281

February 12, 2008

MANUEL L. LEE, petitioner,

vs.
ATTY. REGINO B. TAMBAGO, respondent.
RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged
respondent Atty. Regino B. Tambago with violation of the Notarial Law and the
ethics of the legal profession for notarizing a spurious last will and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee,
Sr., never executed the contested will. Furthermore, the spurious will
contained the forged signatures of Cayetano Noynay and Loreto Grajo, the
purported witnesses to its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his
wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr.
and Elena Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before respondent on
June 30, 1965.1 Complainant, however, pointed out that the residence
certificate2 of the testator noted in the acknowledgment of the will was dated
January 5, 1962.3 Furthermore, the signature of the testator was not the same
as his signature as donor in a deed of donation4 (containing his purported
genuine signature). Complainant averred that the signatures of his deceased
father in the will and in the deed of donation were "in any way (sic) entirely and
diametrically opposed from (sic) one another in all angle[s]."5
Complainant also questioned the absence of notation of the residence
certificates of the purported witnesses Noynay and Grajo. He alleged that their

signatures had likewise been forged and merely copied from their respective
voters affidavits.
Complainant further asserted that no copy of such purported will was on file in
the archives division of the Records Management and Archives Office of the
National Commission for Culture and the Arts (NCCA). In this connection, the
certification of the chief of the archives division dated September 19, 1999
stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT
executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in
this Office[s] files.6
Respondent in his comment dated July 6, 2001 claimed that the complaint
against him contained false allegations: (1) that complainant was a son of the
decedent Vicente Lee, Sr. and (2) that the will in question was fake and
spurious. He alleged that complainant was "not a legitimate son of Vicente Lee,
Sr. and the last will and testament was validly executed and actually notarized
by respondent per affidavit7 of Gloria Nebato, common-law wife of Vicente Lee,
Sr. and corroborated by the joint affidavit8 of the children of Vicente Lee, Sr.,
namely Elena N. Lee and Vicente N. Lee, Jr. xxx."9
Respondent further stated that the complaint was filed simply to harass him
because the criminal case filed by complainant against him in the Office of the
Ombudsman "did not prosper."
Respondent did not dispute complainants contention that no copy of the will
was on file in the archives division of the NCCA. He claimed that no copy of the
contested will could be found there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action
against him as he (complainant) did not first file an action for the declaration of
nullity of the will and demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.10
In his report, the investigating commissioner found respondent guilty of
violation of pertinent provisions of the old Notarial Law as found in the Revised
Administrative Code. The violation constituted an infringement of legal ethics,

particularly Canon 111 and Rule 1.0112 of the Code of Professional

Responsibility (CPR).13 Thus, the investigating commissioner of the IBP
Commission on Bar Discipline recommended the suspension of respondent for
a period of three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26,
2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein made part
of this Resolution as Annex "A"; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,
and considering Respondents failure to comply with the laws in the
discharge of his function as a notary public, Atty. Regino B. Tambago is
hereby suspended from the practice of law for one year and Respondents
notarial commission is Revoked and Disqualified from reappointment
as Notary Public for two (2) years.14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities prescribed
by law, to control to a certain degree the disposition of his estate, to take effect
after his death.15 A will may either be notarial or holographic.
The law provides for certain formalities that must be followed in the execution
of wills. The object of solemnities surrounding the execution of wills is to close
the door on bad faith and fraud, to avoid substitution of wills and testaments
and to guarantee their truth and authenticity.16
A notarial will, as the contested will in this case, is required by law to be
subscribed at the end thereof by the testator himself. In addition, it should be
attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another.17
The will in question was attested by only two witnesses, Noynay and Grajo. On
this circumstance alone, the will must be considered void.18 This is in
consonance with the rule that acts executed against the provisions of
mandatory or prohibitory laws shall be void, except when the law itself
authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a
notary public by the testator and the witnesses. 19 The importance of this
requirement is highlighted by the fact that it was segregated from the other
requirements under Article 805 and embodied in a distinct and separate
provision.20
An acknowledgment is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed. It
involves an extra step undertaken whereby the signatory actually declares to
the notary public that the same is his or her own free act and deed. 21 The
acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the
testators wishes long after his demise and (2) to assure that his estate is
administered in the manner that he intends it to be done.
A cursory examination of the acknowledgment of the will in question shows
that this particular requirement was neither strictly nor substantially complied
with. For one, there was the conspicuous absence of a notation of the residence
certificates of the notarial witnesses Noynay and Grajo in the acknowledgment.
Similarly, the notation of the testators old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by respondent
invalidated the will.
As the acknowledging officer of the contested will, respondent was required to
faithfully observe the formalities of a will and those of notarization. As we held
in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties of notaries
public. They are required to certify that the party to every document
acknowledged before him had presented the proper residence certificate
(or exemption from the residence tax); and to enter its number, place of
issue and date as part of such certification.
These formalities are mandatory and cannot be disregarded, considering the
degree of importance and evidentiary weight attached to notarized
documents.23 A notary public, especially a lawyer,24 is bound to strictly observe
these elementary requirements.
The Notarial Law then in force required the exhibition of the residence
certificate upon notarization of a document or instrument:

Section 251. Requirement as to notation of payment of [cedula] residence

tax. Every contract, deed, or other document acknowledged before a
notary public shall have certified thereon that the parties thereto have
presented their proper [cedula] residence certificate or are exempt from
the [cedula] residence tax, and there shall be entered by the notary
public as a part of such certificate the number, place of issue, and date
of each [cedula] residence certificate as aforesaid.25
The importance of such act was further reiterated by Section 6 of the Residence
Tax Act26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges
any document before a notary public xxx it shall be the duty of such
person xxx with whom such transaction is had or business done, to
require the exhibition of the residence certificate showing payment of the
residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to establish the true
and correct identity of the person to whom it is issued, as well as the payment
of residence taxes for the current year. By having allowed decedent to exhibit
an expired residence certificate, respondent failed to comply with the
requirements of both the old Notarial Law and the Residence Tax Act. As much
could be said of his failure to demand the exhibition of the residence
certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a
copy of the notarized will to the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the
testator and the witness. The notary public shall not be required to
retain a copy of the will, or file another with the office of the Clerk
of Court. (emphasis supplied)
Respondents failure, inadvertent or not, to file in the archives division a copy of
the notarized will was therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the
necessary entries pertaining to the will in his notarial register. The old Notarial
Law required the entry of the following matters in the notarial register, in
chronological order:

1. nature of each instrument executed, sworn to, or acknowledged before

him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of
the instrument.27
In an effort to prove that he had complied with the abovementioned rule,
respondent contended that he had crossed out a prior entry and entered
instead the will of the decedent. As proof, he presented a photocopy of his
notarial register. To reinforce his claim, he presented a photocopy of a
certification28 stating that the archives division had no copy of the affidavit of
Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless it is
shown that the original is unavailable. The proponent must first prove the
existence and cause of the unavailability of the original,29 otherwise, the
evidence presented will not be admitted. Thus, the photocopy of respondents
notarial register was not admissible as evidence of the entry of the execution of
the will because it failed to comply with the requirements for the admissibility
of secondary evidence.
In the same vein, respondents attempt to controvert the certification dated
September 21, 199930 must fail. Not only did he present a mere photocopy of
the certification dated March 15, 2000;31 its contents did not squarely prove the
fact of entry of the contested will in his notarial register.
Notaries public must observe with utmost care32 and utmost fidelity the basic
requirements in the performance of their duties, otherwise, the confidence of
the public in the integrity of notarized deeds will be undermined.33

Defects in the observance of the solemnities prescribed by law render the entire
will invalid. This carelessness cannot be taken lightly in view of the importance
and delicate nature of a will, considering that the testator and the witnesses,
as in this case, are no longer alive to identify the instrument and to confirm its
contents.34 Accordingly, respondent must be held accountable for his acts. The
validity of the will was seriously compromised as a consequence of his breach
of duty.35
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. The following derelictions of
duty on the part of a notary public shall, in the discretion of the proper
judge of first instance, be sufficient ground for the revocation of his
commission:
xxx

xxx

xxx

(b) The failure of the notary to make the proper entry or entries in his
notarial register touching his notarial acts in the manner required by law.
xxx

xxx

xxx

(f) The failure of the notary to make the proper notation regarding cedula
certificates.36
These gross violations of the law also made respondent liable for violation of his
oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of
the Rules of Court37 and Canon 138 and Rule 1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic
of the Philippines, uphold the Constitution and obey the laws of the land.40 For
a lawyer is the servant of the law and belongs to a profession to which society
has entrusted the administration of law and the dispensation of justice. 41
While the duty to uphold the Constitution and obey the law is an obligation
imposed on every citizen, a lawyer assumes responsibilities well beyond the
basic requirements of good citizenship. As a servant of the law, a lawyer should
moreover make himself an example for others to emulate.42 Being a lawyer, he
is supposed to be a model in the community in so far as respect for the law is
concerned.43

The practice of law is a privilege burdened with conditions.44 A breach of these

conditions justifies disciplinary action against the erring lawyer. A disciplinary
sanction is imposed on a lawyer upon a finding or acknowledgment that he has
engaged in professional misconduct.45 These sanctions meted out to errant
lawyers include disbarment, suspension and reprimand.
Disbarment is the most severe form of disciplinary sanction.46 We have held in
a number of cases that the power to disbar must be exercised with great
caution47 and should not be decreed if any punishment less severe such as
reprimand, suspension, or fine will accomplish the end desired.48 The rule
then is that disbarment is meted out only in clear cases of misconduct that
seriously affect the standing and character of the lawyer as an officer of the
court.49
Respondent, as notary public, evidently failed in the performance of the
elementary duties of his office. Contrary to his claims that he "exercised his
duties as Notary Public with due care and with due regard to the provision of
existing law and had complied with the elementary formalities in the
performance of his duties xxx," we find that he acted very irresponsibly in
notarizing the will in question. Such recklessness warrants the less severe
punishment of suspension from the practice of law. It is, as well, a sufficient
basis for the revocation of his commission50 and his perpetual disqualification
to be commissioned as a notary public.51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of
professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the
Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional
Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old
Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one
year and his notarial commissionREVOKED. Because he has not lived up to
the trustworthiness expected of him as a notary public and as an officer of the
court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary
public.
Let copies of this Resolution be furnished to all the courts of the land, the
Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as
made part of the personal records of respondent.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.C. No. 5439

January 22, 2007

CLARITA J. SAMALA, Complainant,

vs.
ATTY. LUCIANO D. VALENCIA, Respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Before us is a complaint1 dated May 2, 2001 filed by Clarita J. Samala
(complainant) against Atty. Luciano D. Valencia (respondent) for Disbarment on
the following grounds: (a) serving on two separate occasions as counsel for
contending parties; (b) knowingly misleading the court by submitting false
documentary evidence; (c) initiating numerous cases in exchange for
nonpayment of rental fees; and (d) having a reputation of being immoral by
siring illegitimate children.
After respondent filed his Comment, the Court, in its Resolution of October 24,
2001, referred the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. 2
The investigation was conducted by Commissioner Demaree Jesus B. Raval.
After a series of hearings, the parties filed their respective memoranda 3 and
the case was deemed submitted for resolution.
Commissioner Wilfredo E.J.E. Reyes prepared the Report and
Recommendation 4 dated January 12, 2006. He found respondent guilty of
violating Canons 15 and 21 of the Code of Professional Responsibility and
recommended the penalty of suspension for six months.

In a minute Resolution 5 passed on May 26, 2006, the IBP Board of Governors
adopted and approved the report and recommendation of Commissioner Reyes
but increased the penalty of suspension from six months to one year.
We adopt the report of the IBP Board of Governors except as to the issue on
immorality and as to the recommended penalty.
On serving as counsel for contending parties.
Records show that in Civil Case No. 95-105-MK, filed in the Regional Trial
Court (RTC), Branch 272, Marikina City, entitled "Leonora M. Aville v. Editha
Valdez" for nonpayment of rentals, herein respondent, while being the counsel
for defendant Valdez, also acted as counsel for the tenants Lagmay, Valencia,
Bustamante and Bayuga 6 by filing an Explanation and Compliance before the
RTC. 7
In Civil Case No. 98-6804 filed in the Metropolitan Trial Court (MTC), Branch
75, Marikina City, entitled "Editha S. Valdez and Joseph J. Alba, Jr. v. Salve
Bustamante and her husband" for ejectment, respondent represented Valdez
against Bustamante - one of the tenants in the property subject of the
controversy. Defendants appealed to the RTC, Branch 272, Marikina City
docketed as SCA Case No. 99-341-MK. In his decision dated May 2,
2000,8 Presiding Judge Reuben P. dela Cruz 9 warned respondent to refrain
from repeating the act of being counsel of record of both parties in Civil Case
No. 95-105-MK.
But in Civil Case No. 2000-657-MK, filed in the RTC, Branch 273, Marikina
City, entitled "Editha S. Valdez v. Joseph J. Alba, Jr. and Register of Deeds of
Marikina City," respondent, as counsel for Valdez, filed a Complaint for
Rescission of Contract with Damages and Cancellation of Transfer Certificate of
Title No. 275500 against Alba, respondent's former client in Civil Case No. 986804 and SCA Case No. 99-341-MK.
Records further reveal that at the hearing of November 14, 2003, respondent
admitted that in Civil Case No. 95-105-MK, he was the lawyer for Lagmay (one
of the tenants) but not for Bustamante and Bayuga 10 albeit he filed the
Explanation and Compliance for and in behalf of the tenants. 11 Respondent
also admitted that he represented Valdez in Civil Case No. 98-6804 and SCA
Case No. 99-341-MK against Bustamante and her husband but denied being
the counsel for Alba although the case is entitled "Valdez and Alba v.

Bustamante and her husband," because Valdez told him to include Alba as the
two were the owners of the property 12 and it was only Valdez who signed the
complaint for ejectment. 13 But, while claiming that respondent did not
represent Alba, respondent, however, avers that he already severed his
representation for Alba when the latter charged respondent with
estafa. 14 Thus, the filing of Civil Case No. 2000-657-MK against Alba.
Rule 15.03, Canon 15 of the Code of Professional Responsibility provides that a
lawyer shall not represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts.
A lawyer may not, without being guilty of professional misconduct, act as
counsel for a person whose interest conflicts with that of his present or former
client. 15 He may not also undertake to discharge conflicting duties any more
than he may represent antagonistic interests. This stern rule is founded on the
principles of public policy and good taste. 16 It springs from the relation of
attorney and client which is one of trust and confidence. Lawyers are expected
not only to keep inviolate the client's confidence, but also to avoid the
appearance of treachery and double-dealing for only then can litigants be
encouraged to entrust their secrets to their lawyers, which is of paramount
importance in the administration of justice. 17
One of the tests of inconsistency of interests is whether the acceptance of a new
relation would prevent the full discharge of the lawyer's duty of undivided
fidelity and loyalty to the client or invite suspicion of unfaithfulness or doubledealing in the performance of that duty. 18
The stern rule against representation of conflicting interests is founded on
principles of public policy and good taste. It springs from the attorney's duty to
represent his client with undivided fidelity and to maintain inviolate the client's
confidence as well as from the injunction forbidding the examination of an
attorney as to any of the privileged communications of his client. 19
An attorney owes loyalty to his client not only in the case in which he has
represented him but also after the relation of attorney and client has
terminated. 20 The bare attorney-client relationship with a client precludes an
attorney from accepting professional employment from the client's adversary
either in the same case 21 or in a different but related action. 22 A lawyer is
forbidden from representing a subsequent client against a former client when
the subject matter of the present controversy is related, directly or indirectly, to

the subject matter of the previous litigation in which he appeared for the
former client. 23
We held in Nombrado v. Hernandez 24 that the termination of the relation of
attorney and client provides no justification for a lawyer to represent an interest
adverse to or in conflict with that of the former client. The reason for the rule is
that the client's confidence once reposed cannot be divested by the expiration
of the professional employment. 25 Consequently, a lawyer should not, even
after the severance of the relation with his client, do anything which will
injuriously affect his former client in any matter in which he previously
represented him nor should he disclose or use any of the client's confidences
acquired in the previous relation. 26
In this case, respondent's averment that his relationship with Alba has long
been severed by the act of the latter of not turning over the proceeds collected
in Civil Case No. 98-6804, in connivance with the complainant, is unavailing.
Termination of the attorney-client relationship precludes an attorney from
representing a new client whose interest is adverse to his former client. Alba
may not be his original client but the fact that he filed a case entitled
"Valdez and Alba v. Bustamante and her husband," is a clear indication that
respondent is protecting the interests of both Valdez and Alba in the said case.
Respondent cannot just claim that the lawyer-client relationship between him
and Alba has long been severed without observing Section 26, Rule 138 of the
Rules of Court wherein the written consent of his client is required.
In Gonzales v. Cabucana, Jr.,
held that:

27

citing the case of Quiambao v. Bamba,

28

we

The proscription against representation of conflicting interests applies to a

situation where the opposing parties are present clients in the same action or
in an unrelated action. It is of no moment that the lawyer would not be called
upon to contend for one client that which the lawyer has to oppose for the other
client, or that there would be no occasion to use the confidential information
acquired from one to the disadvantage of the other as the two actions are
wholly unrelated. It is enough that the opposing parties in one case, one of
whom would lose the suit, are present clients and the nature or conditions of
the lawyer's respective retainers with each of them would affect the
performance of the duty of undivided fidelity to both clients. 29

Respondent is bound to comply with Canon 21 of the Code of Professional

Responsibility which states that "a lawyer shall preserve the confidences and
secrets of his client even after the attorney-client relation is terminated."
The reason for the prohibition is found in the relation of attorney and client,
which is one of trust and confidence of the highest degree. A lawyer becomes
familiar with all the facts connected with his client's case. He learns from his
client the weak points of the action as well as the strong ones. Such knowledge
must be considered sacred and guarded with care. 30
From the foregoing, it is evident that respondent's representation of Valdez and
Alba against Bustamante and her husband, in one case, and Valdez against
Alba, in another case, is a clear case of conflict of interests which merits a
corresponding sanction from this Court. Respondent may have withdrawn his
representation in Civil Case No. 95-105-MK upon being warned by the
court, 31 but the same will not exculpate him from the charge of representing
conflicting interests in his representation in Civil Case No. 2000-657-MK.
Respondent is reminded to be more cautious in accepting professional
employments, to refrain from all appearances and acts of impropriety including
circumstances indicating conflict of interests, and to behave at all times with
circumspection and dedication befitting a member of the Bar, especially
observing candor, fairness and loyalty in all transactions with his clients. 32
On knowingly misleading the court by submitting false documentary
evidence.
Complainant alleges that in Civil Case No. 00-7137 filed before MTC, Branch
75 for ejectment, respondent submitted TCT No. 273020 as evidence of Valdez's
ownership despite the fact that a new TCT No. 275500 was already issued in
the name of Alba on February 2, 1995.
Records reveal that respondent filed Civil Case No. 00-7137 on November 27,
2000 and presented TCT No. 273020 as evidence of Valdez's ownership of the
subject property. 33 During the hearing before Commissioner Raval, respondent
avers that when the Answer was filed in the said case, that was the time that
he came to know that the title was already in the name of Alba; so that when
the court dismissed the complaint, he did not do anything
anymore. 34 Respondent further avers that Valdez did not tell him the truth and
things were revealed to him only when the case for rescission was filed in 2002.

Upon examination of the record, it was noted that Civil Case No. 2000-657-MK
for rescission of contract and cancellation of TCT No. 275500 was also filed on
November 27, 2000, 35 before RTC, Branch 273, Marikina City, thus belying the
averment of respondent that he came to know of Alba's title only in 2002 when
the case for rescission was filed. It was revealed during the hearing before
Commissioner Raval that Civil Case Nos. 00-7137 and 2000-657-MK were filed
on the same date, although in different courts and at different times.
Hence, respondent cannot feign ignorance of the fact that the title he submitted
was already cancelled in lieu of a new title issued in the name of Alba in 1995
yet, as proof of the latter's ownership.
Respondent failed to comply with Canon 10 of the Code of Professional
Responsibility which provides that a lawyer shall not do any falsehood, nor
consent to the doing of any in court; nor shall he mislead, or allow the Court to
be mislead by any artifice. It matters not that the trial court was not misled by
respondent's submission of TCT No. 273020 in the name of Valdez, as shown
by its decision dated January 8, 2002 36 dismissing the complaint for
ejectment. What is decisive in this case is respondent's intent in trying to
mislead the court by presenting TCT No. 273020 despite the fact that said title
was already cancelled and a new one, TCT No. 275500, was already issued in
the name of Alba.
In Young v. Batuegas,37 we held that a lawyer must be a disciple of truth. He
swore upon his admission to the Bar that he will "do no falsehood nor consent
to the doing of any in court" and he shall "conduct himself as a lawyer
according to the best of his knowledge and discretion with all good fidelity as
well to the courts as to his clients." 38He should bear in mind that as an officer
of the court his high vocation is to correctly inform the court upon the law and
the facts of the case and to aid it in doing justice and arriving at correct
conclusion. 39 The courts, on the other hand, are entitled to expect only
complete honesty from lawyers appearing and pleading before them. While a
lawyer has the solemn duty to defend his client's rights and is expected to
display the utmost zeal in defense of his client's cause, his conduct must never
be at the expense of truth.
A lawyer is the servant of the law and belongs to a profession to which society
has entrusted the administration of law and the dispensation of justice. 40 As
such, he should make himself more an exemplar for others to emulate. 41
>On initiating numerous cases in exchange for nonpayment of rental fees.

Complainant alleges that respondent filed the following cases: (a) Civil Case No.
2000-657-MK at the RTC, Branch 272; (b) Civil Case No. 00-7137 at the MTC,
Branch 75; and (c) I.S. Nos. 00-4439 and 01-036162 both entitled "Valencia v.
Samala" for estafa and grave coercion, respectively, before the Marikina City
Prosecutor. Complainant claims that the two criminal cases were filed in
retaliation for the cases she filed against Lagmay docketed as I.S. No. 00-4306
for estafa and I.S. No. 00-4318 against Alvin Valencia (son of respondent) for
trespass to dwelling.
As culled from the records, Valdez entered into a retainer agreement with
respondent. As payment for his services, he was allowed to occupy the property
for free and utilize the same as his office pursuant to their retainer
agreement. 42
Respondent filed I.S. Nos. 00-4439 43 and 01-036162 44 both entitled "Valencia
v. Samala" for estafa and grave coercion, respectively, to protect his client's
rights against complainant who filed I.S. No. 00-4306 45 for estafa against
Lagmay, and I.S. No. 00-4318 46 against Alvin Valencia 47 for trespass to
dwelling.
We find the charge to be without sufficient basis. The act of respondent of filing
the aforecited cases to protect the interest of his client, on one hand, and his
own interest, on the other, cannot be made the basis of an administrative
charge unless it can be clearly shown that the same was being done to abuse
judicial processes to commit injustice.
The filing of an administrative case against respondent for protecting the
interest of his client and his own right would be putting a burden on a
practicing lawyer who is obligated to defend and prosecute the right of his
client.
On having a reputation for being immoral by siring illegitimate children.
We find respondent liable for being immoral by siring illegitimate children.
During the hearing, respondent admitted that he sired three children by
Teresita Lagmay who are all over 20 years of age, 48 while his first wife was still
alive. He also admitted that he has eight children by his first wife, the youngest
of whom is over 20 years of age, and after his wife died in 1997, he married
Lagmay in 1998. 49Respondent further admitted that Lagmay was staying in
one of the apartments being claimed by complainant. However, he does not

consider his affair with Lagmay as a relationship 50 and does not consider the
latter as his second family. 51 He reasoned that he was not staying with Lagmay
because he has two houses, one in Muntinlupa and another in Marikina. 52
In this case, the admissions made by respondent are more than enough to hold
him liable on the charge of immorality. During the hearing, respondent did not
show any remorse. He even justified his transgression by saying that he does
not have any relationship with Lagmay and despite the fact that he sired three
children by the latter, he does not consider them as his second family. It is
noted that during the hearing, respondent boasts in telling the commissioner
that he has two houses - in Muntinlupa, where his first wife lived, and in
Marikina, where Lagmay lives. 53 It is of no moment that respondent eventually
married Lagmay after the death of his first wife. The fact still remains that
respondent did not live up to the exacting standard of morality and decorum
required of the legal profession.
Under Canon 1, Rule 1.01 of the Code of Professional Responsibility, a lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct. It may
be difficult to specify the degree of moral delinquency that may qualify an act
as immoral, yet, for purposes of disciplining a lawyer, immoral conduct has
been defined as that "conduct which is willful, flagrant, or shameless, and
which shows a moral indifference to the opinion of respectable members of the
community. 54 Thus, in several cases, the Court did not hesitate to discipline a
lawyer for keeping a mistress in defiance of the mores and sense of morality of
the community. 55 That respondent subsequently married Lagmay in 1998 after
the death of his wife and that this is his first infraction as regards immorality
serve to mitigate his liability.
ACCORDINGLY, the Court finds respondent Atty. Luciano D.
Valencia GUILTY of misconduct and violation of Canons 21, 10 and 1 of the
Code of Professional Responsibility. He is SUSPENDED from the practice of law
for three (3) years, effective immediately upon receipt of herein Resolution.
Let copies of this Resolution be furnished all courts of the land, the Integrated
Bar of the Philippines as well as the Office of the Bar Confidant for their
information and guidance, and let it be entered in respondent's personal
records.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-961

September 21, 1949

BLANDINA GAMBOA HILADO, petitioner,

vs.
JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD and
SELIM JACOB ASSAD, respondents.
Delgado, Dizon and Flores for petitioner.
Vicente J. Francisco for respondents.
TUASON, J.:
It appears that on April 23, 1945, Blandina Gamboa Hilado brought an action
against Selim Jacob Assad to annul the sale of several houses and lot executed
during the Japanese occupation by Mrs. Hilado's now deceased husband.
On May 14, Attorneys Ohnick, Velilla and Balonkita filed an answer on behalf
of the defendant; and on June 15, Attorneys Delgado, Dizon, Flores and
Rodrigo registered their appearance as counsel for the plaintiff. On October 5,
these attorneys filed an amended complaint by including Jacob Assad as party
defendant.
On January 28, 1946, Attorney Francisco entered his appearance as attorney
of record for the defendant in substitution for Attorney Ohnick, Velilla and
Balonkita who had withdrawn from the case.
On May 29, Attorney Dizon, in the name of his firm, wrote Attorney Francisco
urging him to discontinue representing the defendants on the ground that their
client had consulted with him about her case, on which occasion, it was
alleged, "she turned over the papers" to Attorney Francisco, and the latter sent
her a written opinion. Not receiving any answer to this suggestion, Attorney
Delgado, Dizon, Flores and Rodrigo on June 3, 1946, filed a formal motion with
the court, wherein the case was and is pending, to disqualify Attorney
Francisco.

Attorney Francisco's letter to plaintiff, mentioned above and identified as

Exhibit A, is in full as follows:
VICENTE J. FRANCISCO
Attorney-at-Law
1462 Estrada, Manila
July 13, 1945.
Mrs. Blandina Gamboa Hilado
Manila, Philippines
My dear Mrs. Hilado:
From the papers you submitted to me in connection with civil case No.
70075 of the Court of First Instance of Manila, entitled "Blandina
Gamboa Hilado vs. S. J. Assad," I find that the basic facts which brought
about the controversy between you and the defendant therein are as
follows:
(a) That you were the equitable owner of the property described in the
complaint, as the same was purchased and/or built with funds
exclusively belonging to you, that is to say, the houses and lot pertained
to your paraphernal estate;
(b) That on May 3, 1943, the legal title to the property was with your
husband, Mr. Serafin P. Hilado; and
(c) That the property was sold by Mr. Hilado without your knowledge on
the aforesaid date of May 3, 1943.
Upon the foregoing facts, I am of the opinion that your action against Mr.
Assad will not ordinarily prosper. Mr. Assad had the right to presume
that your husband had the legal right to dispose of the property as the
transfer certificate of title was in his name. Moreover, the price of
P110,000 in Japanese military notes, as of May 3, 1943, does not quite
strike me as so grossly inadequate as to warrant the annulment of the
sale. I believe, lastly, that the transaction cannot be avoided merely
because it was made during the Japanese occupation, nor on the simple
allegation that the real purchaser was not a citizen of the Philippines. On

his last point, furthermore, I expect that you will have great difficulty in
proving that the real purchaser was other than Mr. Assad, considering
that death has already sealed your husband's lips and he cannot now
testify as to the circumstances of the sale.
For the foregoing reasons, I regret to advise you that I cannot appear in
the proceedings in your behalf. The records of the case you loaned to me
are herewith returned.
Yours very truly,
(Sgd.) VICENTE J. FRANCISCO
VJF/Rag.
In his answer to plaintiff's attorneys' complaint, Attorney Francisco alleged that
about May, 1945, a real estate broker came to his office in connection with the
legal separation of a woman who had been deserted by her husband, and also
told him (Francisco) that there was a pending suit brought by Mrs. Hilado
against a certain Syrian to annul the sale of a real estate which the deceased
Serafin Hilado had made to the Syrian during the Japanese occupation; that
this woman asked him if he was willing to accept the case if the Syrian should
give it to him; that he told the woman that the sales of real property during the
Japanese regime were valid even though it was paid for in Japanese military
notes; that this being his opinion, he told his visitor he would have no objection
to defending the Syrian;
That one month afterwards, Mrs. Hilado came to see him about a suit she had
instituted against a certain Syrian to annul the conveyance of a real estate
which her husband had made; that according to her the case was in the hands
of Attorneys Delgado and Dizon, but she wanted to take it away from them;
that as he had known the plaintiff's deceased husband he did not hesitate to
tell her frankly that hers was a lost case for the same reason he had told the
broker; that Mrs. Hilado retorted that the basis of her action was not that the
money paid her husband was Japanese military notes, but that the premises
were her private and exclusive property; that she requested him to read the
complaint to be convinced that this was the theory of her suit; that he then
asked Mrs. Hilado if there was a Torrens title to the property and she answered
yes, in the name of her husband; that he told Mrs. Hilado that if the property
was registered in her husband's favor, her case would not prosper either;

That some days afterward, upon arrival at his law office on Estrada street, he
was informed by Attorney Federico Agrava, his assistant, that Mrs. Hilado had
dropped in looking for him and that when he, Agrava, learned that Mrs.
Hilado's visit concerned legal matters he attended to her and requested her to
leave the "expediente" which she was carrying, and she did; that he told
Attorney Agrava that the firm should not handle Mrs. Hilado's case and he
should return the papers, calling Agrava's attention to what he (Francisco)
already had said to Mrs. Hilado;
That several days later, the stenographer in his law office, Teofilo Ragodon,
showed him a letter which had been dictated in English by Mr. Agrava,
returning the "expedients" to Mrs. Hilado; that Ragodon told him (Attorney
Francisco) upon Attorney Agrava's request that Agrava thought it more proper
to explain to Mrs. Hilado the reasons why her case was rejected; that he
forthwith signed the letter without reading it and without keeping it for a
minute in his possession; that he never saw Mrs. Hilado since their last
meeting until she talked to him at the Manila Hotel about a proposed
extrajudicial settlement of the case;
That in January, 1946, Assad was in his office to request him to handle his
case stating that his American lawyer had gone to the States and left the case
in the hands of other attorneys; that he accepted the retainer and on January
28, 1946, entered his appearance.
Attorney Francisco filed an affidavit of stenographer Ragodon in corroboration
of his answer.
The judge trying the case, Honorable Jose Gutierrez David, later promoted to
the Court of Appeals, dismissed the complaint. His Honor believed that no
information other than that already alleged in plaintiff's complaint in the main
cause was conveyed to Attorney Francisco, and concluded that the intercourse
between the plaintiff and the respondent did not attain the point of creating the
relation of attorney and client.
Stripped of disputed details and collateral matters, this much is undoubted:
That Attorney Francisco's law firm mailed to the plaintiff a written opinion over
his signature on the merits of her case; that this opinion was reached on the
basis of papers she had submitted at his office; that Mrs. Hilado's purpose in
submitting those papers was to secure Attorney Francisco's professional
services. Granting the facts to be no more than these, we agree with
petitioner's counsel that the relation of attorney and client between Attorney

Francisco and Mrs. Hilado ensued. The following rules accord with the ethics of
the legal profession and meet with our approval:
In order to constitute the relation (of attorney and client) a professional
one and not merely one of principal and agent, the attorneys must be
employed either to give advice upon a legal point, to prosecute or defend
an action in court of justice, or to prepare and draft, in legal form such
papers as deeds, bills, contracts and the like. (Atkinson vs. Howlett, 11
Ky. Law Rep. (abstract), 364; cited in Vol. 88, A. L. R., p. 6.)
To constitute professional employment it is not essential that the client
should have employed the attorney professionally on any previous
occasion. . . . It is not necessary that any retainer should have been paid,
promised, or charged for; neither is it material that the attorney
consulted did not afterward undertake the case about which the
consultation was had. If a person, in respect to his business affairs or
troubles of any kind, consults with his attorney in his professional
capacity with the view to obtaining professional advice or assistance, and
the attorney voluntarily permits or acquiesces in such consultation, then
the professional employment must be regarded as established. . . . (5
Jones Commentaries on Evidence, pp. 4118-4119.)
An attorney is employed-that is, he is engaged in his professional
capacity as a lawyer or counselor-when he is listening to his client's
preliminary statement of his case, or when he is giving advice thereon,
just as truly as when he is drawing his client's pleadings, or advocating
his client's cause in open court. (Denver Tramway Co. vs. Owens, 20
Colo., 107; 36 P., 848.)
Formality is not an essential element of the employment of an attorney.
The contract may be express or implied and it is sufficient that the
advice and assistance of the attorney is sought and received, in matters
pertinent to his profession. An acceptance of the relation is implied on
the part of the attorney from his acting in behalf of his client in
pursuance of a request by the latter. (7 C. J. S., 848-849; see Hirach
Bros. and Co. vs. R. E. Kennington Co., 88 A. L. R., 1.)
Section 26 (e), Rule 123 of the Rules of Court provides that "an attorney
cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in the
course of professional employment;" and section 19 (e) of Rule 127 imposes

upon an attorney the duty "to maintain inviolate the confidence, and at every
peril to himself, to preserve the secrets of his client." There is no law or
provision in the Rules of Court prohibiting attorneys in express terms from
acting on behalf of both parties to a controversy whose interests are opposed to
each other, but such prohibition is necessarily implied in the injunctions above
quoted. (In re De la Rosa, 27 Phil., 258.) In fact the prohibition derives validity
from sources higher than written laws and rules. As has been aptly said in In
re Merron, 22 N. M., 252, L.R.A., 1917B, 378, "information so received is
sacred to the employment to which it pertains," and "to permit it to be used in
the interest of another, or, worse still, in the interest of the adverse party, is to
strike at the element of confidence which lies at the basis of, and affords the
essential security in, the relation of attorney and client."
That only copies of pleadings already filed in court were furnished to Attorney
Agrava and that, this being so, no secret communication was transmitted to
him by the plaintiff, would not vary the situation even if we should discard
Mrs. Hilado's statement that other papers, personal and private in character,
were turned in by her. Precedents are at hand to support the doctrine that the
mere relation of attorney and client ought to preclude the attorney from
accepting the opposite party's retainer in the same litigation regardless of what
information was received by him from his first client.
The principle which forbids an attorney who has been engaged to
represent a client from thereafter appearing on behalf of the client's
opponent applies equally even though during the continuance of the
employment nothing of a confidential nature was revealed to the attorney
by the client. (Christian vs. Waialua Agricultural Co., 30 Hawaii, 553,
Footnote 7, C. J. S., 828.)
Where it appeared that an attorney, representing one party in litigation,
had formerly represented the adverse party with respect to the same
matter involved in the litigation, the court need not inquire as to how
much knowledge the attorney acquired from his former during that
relationship, before refusing to permit the attorney to represent the
adverse party. (Brown vs. Miller, 52 App. D. C. 330; 286, F. 994.)
In order that a court may prevent an attorney from appearing against a
former client, it is unnecessary that the ascertain in detail the extent to
which the former client's affairs might have a bearing on the matters

involved in the subsequent litigation on the attorney's knowledge thereof.

(Boyd vs. Second Judicial Dist. Court, 274 P., 7; 51 Nev., 264.)
This rule has been so strictly that it has been held an attorney, on
terminating his employment, cannot thereafter act as counsel against his
client in the same general matter, even though, while acting for his
former client, he acquired no knowledge which could operate to his
client's disadvantage in the subsequent adverse employment. (Pierce vs.
Palmer [1910], 31 R. I., 432; 77 Atl., 201, Ann. Cas., 1912S, 181.)
Communications between attorney and client are, in a great number of
litigations, a complicated affair, consisting of entangled relevant and irrelevant,
secret and well known facts. In the complexity of what is said in the course of
the dealings between an attorney and a client, inquiry of the nature suggested
would lead to the revelation, in advance of the trial, of other matters that might
only further prejudice the complainant's cause. And the theory would be
productive of other un salutary results. To make the passing of confidential
communication a condition precedent; i.e., to make the employment
conditioned on the scope and character of the knowledge acquired by an
attorney in determining his right to change sides, would not enhance the
freedom of litigants, which is to be sedulously fostered, to consult with lawyers
upon what they believe are their rights in litigation. The condition would of
necessity call for an investigation of what information the attorney has received
and in what way it is or it is not in conflict with his new position. Litigants
would in consequence be wary in going to an attorney, lest by an unfortunate
turn of the proceedings, if an investigation be held, the court should accept the
attorney's inaccurate version of the facts that came to him. "Now the
abstinence from seeking legal advice in a good cause is by hypothesis an evil
which is fatal to the administration of justice." (John H. Wigmore's Evidence,
1923, Section 2285, 2290, 2291.)
Hence the necessity of setting down the existence of the bare relationship of
attorney and client as the yardstick for testing incompatibility of interests. This
stern rule is designed not alone to prevent the dishonest practitioner from
fraudulent conduct, but as well to protect the honest lawyer from unfounded
suspicion of unprofessional practice. (Strong vs. Int. Bldg., etc.; Ass'n, 183 Ill.,
97; 47 L.R.A., 792.) It is founded on principles of public policy, on good taste.
As has been said in another case, the question is not necessarily one of the
rights of the parties, but as to whether the attorney has adhered to proper
professional standard. With these thoughts in mind, it behooves attorneys, like

Caesar's wife, not only to keep inviolate the client's confidence, but also to
avoid the appearance of treachery and double-dealing. Only thus can litigants
be encouraged to entrust their secrets to their attorneys which is of paramount
importance in the administration of justice.
So without impugning respondent's good faith, we nevertheless can not
sanction his taking up the cause of the adversary of the party who had sought
and obtained legal advice from his firm; this, not necessarily to prevent any
injustice to the plaintiff but to keep above reproach the honor and integrity of
the courts and of the bar. Without condemning the respondents conduct as
dishonest, corrupt, or fraudulent, we do believe that upon the admitted facts it
is highly in expedient. It had the tendency to bring the profession, of which he
is a distinguished member, "into public disrepute and suspicion and
undermine the integrity of justice."
There is in legal practice what called "retaining fee," the purpose of which
stems from the realization that the attorney is disabled from acting as counsel
for the other side after he has given professional advice to the opposite party,
even if he should decline to perform the contemplated services on behalf of the
latter. It is to prevent undue hardship on the attorney resulting from the rigid
observance of the rule that a separate and independent fee for consultation
and advice was conceived and authorized. "A retaining fee is a preliminary fee
given to an attorney or counsel to insure and secure his future services, and
induce him to act for the client. It is intended to remunerate counsel for being
deprived, by being retained by one party, of the opportunity of rendering
services to the other and of receiving pay from him, and the payment of such
fee, in the absence of an express understanding to the contrary, is neither
made nor received in payment of the services contemplated; its payment has no
relation to the obligation of the client to pay his attorney for the services which
he has retained him to perform." (7 C.J.S., 1019.)
The defense that Attorney Agrava wrote the letter Exhibit A and that Attorney
Francisco did not take the trouble of reading it, would not take the case out of
the interdiction. If this letter was written under the circumstances explained by
Attorney Francisco and he was unaware of its contents, the fact remains that
his firm did give Mrs. Hilado a formal professional advice from which, as
heretofore demonstrated, emerged the relation of attorney and client. This letter
binds and estop him in the same manner and to the same degree as if he
personally had written it. An information obtained from a client by a member
or assistant of a law firm is information imparted to the firm. (6 C. J., 628; 7 C.

J. S., 986.) This is not a mere fiction or an arbitrary rule; for such member or
assistant, as in our case, not only acts in the name and interest of the firm, but
his information, by the nature of his connection with the firm is available to his
associates or employers. The rule is all the more to be adhered to where, as in
the present instance, the opinion was actually signed by the head of the firm
and carries his initials intended to convey the impression that it was dictated
by him personally. No progress could be hoped for in "the public policy that the
client in consulting his legal adviser ought to be free from apprehension of
disclosure of his confidence," if the prohibition were not extended to the
attorney's partners, employers or assistants.
The fact that petitioner did not object until after four months had passed from
the date Attorney Francisco first appeared for the defendants does not operate
as a waiver of her right to ask for his disqualification. In one case, objection to
the appearance of an attorney was allowed even on appeal as a ground for
reversal of the judgment. In that case, in which throughout the conduct of the
cause in the court below the attorney had been suffered so to act without
objection, the court said: "We are all of the one mind, that the right of the
appellee to make his objection has not lapsed by reason of failure to make it
sooner; that professional confidence once reposed can never be divested by
expiration of professional employment." (Nickels vs. Griffin, 1 Wash. Terr., 374,
321 A. L. R. 1316.)
The complaint that petitioner's remedy is by appeal and not by certiorari
deserves scant attention. The courts have summary jurisdiction to protect the
rights of the parties and the public from any conduct of attorneys prejudicial to
the administration of the justice. The summary jurisdiction of the courts over
attorneys is not confined to requiring them to pay over money collected by them
but embraces authority to compel them to do whatever specific acts may be
incumbent upon them in their capacity of attorneys to perform. The courts
from the general principles of equity and policy, will always look into the
dealings between attorneys and clients and guard the latter from any undue
consequences resulting from a situation in which they may stand unequal. The
courts acts on the same principles whether the undertaking is to appear, or, for
that matter, not to appear, to answer declaration, etc. (6 C.J., 718 C.J.S.,
1005.) This summary remedy against attorneys flows from the facts that they
are officers of the court where they practice, forming a part of the machinery of
the law for the administration of justice and as such subject to the disciplinary
authority of the courts and to its orders and directions with respect to their
relations to the court as well as to their clients. (Charest vs. Bishop, 137 Minn.,

102; 162, N.W., 1062, Note 26, 7 C. J. S., 1007.) Attorney stand on the same
footing as sheriffs and other court officers in respect of matters just mentioned.
We conclude therefore that the motion for disqualification should be allowed. It
is so ordered, without costs.
Republic of the Philippines
SUPREME COURT
SECOND DIVISION
Adm. Case No. 4680

August 29, 2000

AQUILINO Q. PIMENTEL, JR., complainant,

vs.
ATTYS. ANTONIO M. LLORENTE and LIGAYA P. SALAYON, respondents.
MENDOZA, J.:
This is a complaint for disbarment against respondents Antonio M. Llorente
and Ligaya P. Salayon for gross misconduct, serious breach of trust, and
violation of the lawyer's oath in connection with the discharge of their duties as
members of the Pasig City Board of Canvassers in the May 8, 1995 elections.
Salayon, then election officer of the Commission on Elections (COMELEC), was
designated chairman of said Board, while Llorente, who was then City
Prosecutor of Pasig City, served as its ex oficio vice-chairman as provided by
law.1 Complainant, now a senator, was also a candidate for the Senate in that
election.
Complainant alleges that, in violation of R.A. No. 6646, 27(b),2 respondents
tampered with the votes received by him, with the result that, as shown in the
Statements of Votes (SoVs) and Certificate of Canvass (CoC) pertaining to 1,263
precincts of Pasig City, (1) senatorial candidates Juan Ponce Enrile, Anna
Dominique Coseteng, Gregorio Honasan, Marcelo Fernan, Ramon Mitra, and
Rodolfo Biazon were credited with votes which were above the number of votes
they actually received while, on the other hand, petitioner's votes were reduced;
(2) in 101 precincts, Enrile's votes were in excess of the total number of voters
who actually voted therein; and (3) the votes from 22 precincts were twice
recorded in 18 SoVs. Complainant maintains that, by signing the SoVs and
CoC despite respondents' knowledge that some of the entries therein were

false, the latter committed a serious breach of public trust and of their lawyers'
oath.
Respondents denied the allegations against them. They alleged that the
preparation of the SoVs was made by the 12 canvassing committees which the
Board had constituted to assist in the canvassing. They claimed that the errors
pointed out by complainant could be attributed to honest mistake, oversight,
and/or fatigue.
In his Consolidated Reply, complainant counters that respondents should be
held responsible for the illegal padding of the votes considering the nature and
extent of the irregularities and the fact that the canvassing of the election
returns was done under their control and supervision.
On December 4, 1998, the Integrated Bar of the Philippines, to which this
matter had been referred pursuant to Rule 139-B, 13, in relation to 20 of the
Rules of Court, recommended the dismissal of the complaint for lack of
merit.3 Petitioner filed a motion for reconsideration on March 11, 1999, but his
motion was denied in a resolution of the IBP Board of Governors dated April
22, 1999. On June 4, 1999, he filed this petition pursuant to Rule 139-B,
12(c).
It appears that complainant likewise filed criminal charges against respondents
before the COMELEC (E.O. Case No. 96-1132) for violation of R.A. No. 6646,
27(b). In its resolution dated January 8, 1998, the COMELEC dismissed
complainant's charges for insufficiency of evidence. However, on a petition for
certiorari filed by complainant,4 this Court set aside the resolution and directed
the COMELEC to file appropriate criminal charges against respondents.
Reconsideration was denied on August 15, 2000.
Considering the foregoing facts, we hold that respondents are guilty of
misconduct.
First. Respondent Llorente seeks the dismissal of the present petition on the
ground that it was filed late. He contends that a motion for reconsideration is a
prohibited pleading under Rule 139-B, 12(c)5 and, therefore, the filing of such
motion before the IBP Board of Governors did not toll the running of the period
of appeal. Respondent further contends that, assuming such motion can be
filed, petitioner nevertheless failed to indicate the date of his receipt of the April
22, 1999 resolution of the IBP denying his motion for reconsideration so that it

cannot be ascertained whether his petition was filed within the 15-day period
under Rule 139-B, 12(c).
The contention has no merit. The question of whether a motion for
reconsideration is a prohibited pleading or not under Rule 139-B, 12(c) has
been settled in Halimao v. Villanueva,6 in which this Court held:
Although Rule 139-B, 12(C) makes no mention of a motion for
reconsideration, nothing in its text or in its history suggests that such
motion is prohibited. It may therefore be filed within 15 days from notice
to a party. Indeed, the filing of such motion should be encouraged before
resort is made to this Court as a matter of exhaustion of administrative
remedies, to afford the agency rendering the judgment an opportunity to
correct any error it may have committed through a misapprehension of
facts or misappreciation of the evidenced.7
On the question whether petitioner's present petition was filed within the 15day period provided under Rule 139-B, 12(c), although the records show that
it was filed on June 4, 1999, respondent has not shown when petitioner
received a copy of the resolution of the IBP Board of Governors denying his
motion for reconsideration. It would appear, however, that the petition was filed
on time because a copy of the resolution personally served on the Office of the
Bar Confidant of this Court was received by it on May 18, 1999. Since copies of
IBP resolutions are sent to the parties by mail, it is possible that the copy sent
to petitioner was received by him later than May 18, 1999. Hence, it may be
assumed that his present petition was filed within 15 days from his receipt of
the IBP resolution. In any event, the burden was on respondent, as the moving
party, to show that the petition in this case was filed beyond the 15-day period
for filing it.
Even assuming that petitioner received the IBP resolution in question on May
18, 1999, i.e., on the same date a copy of the same was received by the Office
of the Bar Confidant, the delay would only be two days.8 The delay may be
overlooked, considering the merit of this case. Disbarment proceedings are
undertaken solely for public welfare. The sole question for determination is
whether a member of the bar is fit to be allowed the privileges as such or not.
The complainant or the person who called the attention of the Court to the
attorney's alleged misconduct is in no sense a party, and generally has no
interest in the outcome except as all good citizens may have in the proper
administration of justice.9 For this reason, laws dealing with double

jeopardy10 or prescription11 or with procedure like verification of pleadings12 and

prejudicial questions13 have no application to disbarment proceedings.
Even in ordinary civil actions, the period for perfecting appeals is relaxed in the
interest of justice and equity where the appealed case is clearly meritorious.
Thus, we have given due course to appeals even though filed six,14four,15 and
three16 days late. In this case, the petition is clearly meritorious.
Second. The IBP recommends the dismissal of petitioner's complaint on the
basis of the following: (1) respondents had no involvement in the tabulation of
the election returns, because when the Statements of Votes (SoVs) were given
to them, such had already been accomplished and only needed their respective
signatures; (2) the canvassing was done in the presence of watchers,
representatives of the political parties, the media, and the general public so
that respondents would not have risked the commission of any irregularity;
and (3) the acts dealt with in R.A. No. 6646, 27(b) are mala in se and not mala
prohibita, and petitioner failed to establish criminal intent on the part of
respondents.17
The recommendation is unacceptable. In disciplinary proceedings against
members of the bar, only clear preponderance of evidence is required to
establish liability.18 As long as the evidence presented by complainant or that
taken judicial notice of by the Court1 9 is more convincing and worthy of belief
than that which is offered in opposition thereto,20 the imposition of disciplinary
sanction is justified..
In this case, respondents do not dispute the fact that massive irregularities
attended the canvassing of the Pasig City election returns. The only
explanation they could offer for such irregularities is that the same could be
due to honest mistake, human error, and/or fatigue on the part of the
members of the canvassing committees who prepared the SoVs.
This is the same allegation made in Pimentel v. Commission on Elections.21 In
rejecting this allegation and ordering respondents prosecuted for violation of
R.A. No. 6646, 27(b), this Court said:
There is a limit, we believe, to what can be construed as an honest
mistake or oversight due to fatigue, in the performance of official duty.
The sheer magnitude of she error, not only in the total number of votes
garnered by the aforementioned candidates as reflected in the CoC and
the SoVs, which did not tally with that reflected in the election returns,

but also in the total number of votes credited for senatorial candidate
Enrile which exceeded the total number of voters who actually voted in
those precincts during the May 8, 1995 elections, renders the defense of
honest mistake or oversight due to fatigue, as incredible and simply
unacceptable.22
Indeed, what is involved here is not just a case of mathematical error in the
tabulation of votes per precinct as reflected in the election returns and the
subsequent entry of the erroneous figures in one or two SoVs23 but a
systematic scheme to pad the votes of certain senatorial candidates at the
expense of petitioner in complete disregard of the tabulation in the election
returns. A cursory look at the evidence submitted by petitioner reveals that, in
at least 24 SoVs involving 101 precincts, the votes for candidate Enrile
exceeded the number of voters who actually voted in the said precincts and, in
18 SoVs, returns from 22 precincts were-tabulated twice. In addition, as the
Court noted in Pimentel, the total number of votes credited to each of the seven
senatorial candidates in question, as reflected in the CoC, markedly differ from
those indicated in the SoVs.24
Despite the fact that these discrepancies, especially the double recording of the
returns from 22 precincts and the variation in the tabulation of votes as
reflected in the SoVs and CoC, were apparent on the face of these documents
and that the variation involves substantial number of votes, respondents
nevertheless certified the SoVs as true and correct. Their acts constitute
misconduct.
Respondent Llorente's contention that he merely certified the genuineness and
due execution of the SoVs but not their correctness is belied by the certification
which reads:
WE HEREBY CERTIFY that the foregoing Statement of Votes by . . .
[p]recinct is true and correct. IN WITNESS WHEREOF, we sign these
presents at the City/Municipality of ___________ Province of ________ this
_______ day of May, 1995. (Emphasis added)
Nor does the fact that the canvassing was open to the public and observed by
numerous individuals preclude the commission of acts for which respondents
are liable. The fact is that only they had access to the SoVs and CoC and thus
had the opportunity to compare them and detect the discrepancies therein.

Now, a lawyer who holds a government position may not be disciplined as a

member of the bar for misconduct in the discharge of his duties as a
government official.25 However, if the misconduct also constitutes a violation of
the Code of Professional Responsibility or the lawyer's oath or is of such
character as to affect his qualification as a lawyer or shows moral delinquency
on his part, such individual may be disciplined as a member of the bar for such
misconduct.26
Here, by certifying as true and correct the SoVs in question, respondents
committed a breach of Rule 1.01 of the Code which stipulates that a lawyer
shall not engage in "unlawful, dishonest, immoral or deceitful conduct." By
express provision of Canon 6, this is made applicable to lawyers in the
government service. In addition, they likewise violated their oath of office as
lawyers to "do no falsehood."
Nowhere is the-need for lawyers to observe honesty both in their private and in
their public dealings better expressed in Sabayle v. Tandayag27 in which this
Court said:
There is a strong public interest involved in requiring lawyers to behave
at all times in a manner consistent with truth and honor it is important
that the common caricature that lawyers by and large do not feel
compelled to speak the truth and to act honestly, should not become a
common reality . . .28
It may be added that, as lawyers in the government service, respondents were
under greater obligation to observe this basic tenet of the profession because a
public office is a public trust.
Third. Respondents' participation in the irregularities herein reflects on the
legal profession, in general, and on lawyers in government in particular. Such
conduct in the performance of their official duties, involving no less than the
ascertainment of the popular will as expressed through the ballot, would have
merited for them suspension were it not for the fact that this is their first
administrative transgression and, in the case of Salayon, after a long public
service.29 Under the circumstances, a penalty of fine in the amount of
P10,000.00 for each of the respondents should be sufficient.
WHEREFORE, the Court finds respondents Antonio M. Llorente and Ligaya P.
Salayon GUILTY of misconduct and imposes on each of them a FINE in the

amount of P10,000.00 with a WARNING that commission of similar acts will be

dealt with more severely.1wphi1.nt
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 46371

February 7, 1940

FORTUNATO N. SUAREZ, petitioner,

vs.
SERVILLANO PLATON, Judge of Court of First Instance of Tayabas, The
PROVINCIAL FISCAL OF TAYABAS, VIVENCIO ORAIS and DAMIAN
JIMENEZ, respondents.
Godofredo Reyes for petitioner.
Provincial Fiscal of Tayabas Hermogenes Caluag for respondents.
LAUREL, J.:
This is an original petition for the peremptory writ of mandamus filed by
Fortunato N. Suarez with this court, to compel the respondent judge to
reinstate criminal case No. 6426 of the Court of First Instance of Tayabas so
that the case may proceed to trial in the ordinary course.
It appears on May 9, 1935, Lieutenant Vivencio Orais, of the Philippine
Constabulary, one of the respondents in this case, filed a complaint under oath
with the justice of the peace of Calauag, Province of Tayabas, charging the
petitioner herein, Fortunato N. Suarez, and one Tomas Ruedas, with sedition
under Article 142 of the Revised Penal Code. The complaint, upon preliminary
examination, was docketed and given due course. While the said case was
pending preliminary investigation, Lieutenant Orais, in obedience to an order of
the Provincial Commander of Tayabas, moved for the temporary dismissal of
the case. This motion was granted by the justice of the peace of Calauag on
May 20, 1935, and the case thus dismissed.

At the instance of the petitioner herein, Fortunato N. Suarez, the deputy

provincial fiscal of Tayabas, Perfecto R. Palacio, in turn charged Lieutenant
Vivencio Orais and Damian Jimenez in the justice of the peace court of
Calauag with the crime of arbitrary detention committed, according to the
information under date of July 8, 1935, as follows:
That on or about the 9th day of May, 1935, in the municipality of
Calauag, Province of Tayabas, P.I., and within the jurisdiction of this
Court, the accused Vivencio Orais being then a public officer to wit: a
second lieutenant of the Philippine Constabulary duly appointed and
qualified as such and detailed in the Province of Tayabas, without
warrant of arrest and without any legal ground whatsoever, moved by
personal grudge and ill-feeling which he entertained against Attorney
Fortunato Suarez, did, then and there willfully, unlawfully and
feloniously arrest and detain said Attorney Fortunato Suarez in the train
while the latter was going to Calauag, and with the purpose of concealing
the illegality of said arrest and detention of said Fortunato Suarez said
accused Vivencio Orais conniving with the other accused, Damian
Jimenez, justice of the peace of the said municipality, prepared and
subscribed under oath before said Fortunato Suarez with the
commission of the crime of sedition; that the said justice of the peace
Damian Jimenez, conniving with the other accused Vivencio Orais with
the same purpose of concealing the illegality of the arrest and detention
of said Fortunato Suarez, without legal grounds whatsoever willfully and
unlawfully issued an order declaring that there were merits in the
complaint thereby sanctioning the illegal and unjust arrest and detention
of Fortunato Suarez who was kept in the municipal jail of Calauag for
eight hours.
The justice of the peace of Calauag, being one of the accused, the preliminary
examination was conducted by the justice of the peace of Lopez, Tayabas, who
thereafter bound the defendants over to the Court of First Instance, where the
case was docketed as criminal case No. 6426. While the case was pending in
the latter court, on petition, of the accused, the provincial fiscal of Tayabas,
Ramon Valdez y Nieto, reinvestigated the case. After such reinvestigation, he
filed on April 23, 1936, a motion for the dismissal of the case. Fortunato N.
Suarez, the petitioner herein, on May 5, 1936, asked the court to appoint
Attorney Godofredo Reyes as acting provincial fiscal to handle the prosecution,
alleging, among other things, that the provincial fiscal had no courage to
prosecute the accused. On May 11, 1936, Attorney Godofredo Reyes entered

his appearance as private prosecutor, and vigorously objected to the motion of

dismissal filed by the provincial fiscal. The Bar Association of Tayabas, through
its president, Emiliano A. Gala, entered its appearance as amicus curiae and
likewise objected to the dismissal of the case. On August 14, 1936, the then
presiding judge of Branch I of the Court of First Instance of Tayabas, Hon. Ed.
Gutierrez David, after hearing, denied the motion, ruling that there was prima
facie case against the accused. The court, upon petitioner of the provincial
fiscal, designated Deputy Provincial Fiscal Perfecto R. Palacio to handle the
prosecution. But Fiscal Palacio, being apparently of the same opinion as the
provincial fiscal, declined to proceed, and moved that a practicing attorney or a
competent attorney in the Bureau of Justice be designated in his stead.
Accordingly, the provincial fiscal of Sorsogon, Jacinto Yamson, at the request of
the judge a quo was assigned by the Department of Justice to handle the
prosecution of the case. Fiscal Yamson after going over the case likewise
entered a nolle prosequi. So, on September 23 1936, he moved for
reconsideration of the court's order of August 14, 1936, denying the motion for
dismissal presented by the provincial fiscal. Attorney Godofredo Reyes again
vigorously objected to this motion on the ground that there was sufficient proof
to warrant the prosecution of the accused. The case in this state when Judge
Emilio Pena was appointed to the place of Judge Gutierres David. Later, Judge
Serviliano Platon, one of the respondents herein, was appointed to preside over
case No. 6426 corresponded, and the case was thus transferred to that sala for
action. Judge Platon, after consideration of all the facts and proofs submitted
in the case, considered the court's order of August 14, 1936, and dismissed the
case, holding that the evidence was insufficient to convict the accused of the
crime charged. From this order, the petitioner herein appealed to this Court
and the case was here docketed as G.R. No. 45431. On June 30, by a closely
divided court, the appeal was dismissed.
The petitioner has now filed with this Court the present petition, in which, as
stated in the opening paragraph of this decision, we are asked to issue the
peremptory writ of mandamus to compel the respondent judge to reinstate the
criminal case which had been ordered dismissed by the said judge. The
petitioner gives the following grounds for the issuance of said writ:
Que el mencionado Juez Hon. Servillano Platon incurrio en un abuso
manifiesto de discrecion al sobreseer la mencionada causa contra los
otros dos recurridos Vivencio Orais y Damian Jimenez, despues de que el
Juzgado de Paz de Lopez habia declarado que existen meritos para
proseguirse contra los mismos y despues de que un Juez de Primera

Instancia de la misma categoria que el Juez Platon habia rehusado

sobreseer la causa por creer que existian meritos para proceder contra
los acusados.
Que el mencionado Juez Hon. Servillano Platon incurrio en un abuso
grave de discrecion por cuanto que las pruebas existentes en la causa, en
las cuales se fundo el fiscal provincial al presentar la querella en el
Juzgado de Paz, demuestran de un modo claro y concluyente el delito
cometido y la responsibilidad de los acusados. [Las expresadas pruebas
constan a paginas 65 al 106 del adjunto alegato anexo ("A").]
Que el Hon. Servillano Platon incurrio en un grave abuso de discrecion al
juzgar dichas pruebas con un criterio de un Tribunal "sentenciador"
cuando que su unica mision era considerarlas bajo el criterio de un
tribunal meramente "investigador". (E.U. vs. Barredo, 32 Jur. Fil., 462,
482.)
Should the writ of mandamus prayed for be issued? We observe that after the
filing of the information by the provincial fiscal of Tayabas for arbitrary
detention against Lieutenant Orais and the justice of the peace of Lopez, the
same fiscal moved for the dismissal of the case, because 'despues' de una
reinvestigacion de los hechos que dieron margen a la presente causa, y
examinada la misma con la debida atencion que su importancia require asi
como las circunstancias del caso, ha llegado a la conclusion de que no hay
base justificativa para la prosecucion de esta causa." The grounds for this
action of the provincial fiscal are stated in his said motion for dismissal of April
23, 1936:
En sintesis, los hechos son: que el dia 9 de mayo de 1935, en ocasion en
que el abogado Fortunato N. Suarez y el teniente Vivencio Orais de la
constabularia, se encontraron en el tren que iba a Calauag, aquel para
defender a los sakdalistas acusados en este municipio, y este para
atender a sus deberes officiales en relacion con el orden publico algo
anormal, por causa de los mismos sakdalistas en dicho municipio de
Calauag, ambos tuvieron un cambio de palabras con motivo del mismo
asunto que les llevaba alli, y por haber el abogado Suarez proferido en
tono acalorado, de que los sakdalistas estaban perseguidos en Calauag
por las autoridades municipales y la constabularia, y que era un abuso
de las autoridades dicha persecusion, trayendo al propio tiempo a
colacion lo ocurrido en los municipios de Cabuyao y Sta Rosa de la

Provincia de Laguna, que se levantaron contra el gobierno por los

abusosy matanzas de sakdalistas en dichos pueblos, y que lo mismo
podia tenerlugar en esta Provincia de Tayabas, y que el podia incitar a
lossakdalistas, teniendo en cuenta que con anterioridad el teniente
Oraishabia recibido informes de que los sakdalistas en Calauag habian
sido entrevistados por Tomas Ruedas, uno de los acusados en el
municipiode Sariaya por el delito de conspiracion para cometer sedicion,
que el abogado ayudaria a los sakdalistas incintandoles a la sedicion,fue
el motivo por el cual el arresto al abogado Suarez, conduciendoleal
municipio como asi lo hizo con respecto a Tomas Ruedas, quien salio al
encuentro de Suarez cuando llego a la estacion del tren en Calauag,
diciendo a este que ya tenia arreglado a los sakdalistas en Calauag. Que
despues de haberles arrestado, presento una denuncia contra estos por
el delito de sedicion, en el juzgado de paz de Calauag, aunque por
instrucciones de sus superiores, dicho Teniente Vivencio Orais pidio el
sobreseimiento provisional de su denuncia.
Aunque el abogado Suarez niega que el haya profiredo palabras
sediciosas, ni que haya incitado a los sakdalistas a actos de
violenciacontra el gobierno constituido o contra las autoridades y
oficiales, sin embargo, de las declaraciones de los testigos tanto de la
acusacioncomo de la defensa en lo que son consistentes, se desprende
claramente que el abogado Suarez ha hecho manifestaciones que pueden
considerarse como sediciosas y subversivas, maxime teniendo en
consideracion el estado caotico porque atravesaba el municipio de
Calauag con motivo de la campana ordenada porel gobierno contra los
sakdalistas, a raiz de los disturbiosy desordenes publicos que tuvieron
lugar en los municipios de Cabuyao y Sta. Rosa.
La presente causa se ha iniciado a denuncia del abogado Sr. Godofredo
Reyes contra el teniente Vivencio Orais de la constabularia y el juez de
paz Damian L. Jimenez, por el delito de detencion arbitraria.
El delito de detencion arbitraria esta previsto y castigado en el articulo
124 del Codigo Penal Revisado, que dice asi:
El funcionario o empleado publico que detuviere a una persona sinmotivo
legal alguno sera castigado; etc. . . .
Sin perder de vista que la base angular de todos los procesoscriminales
son los delitos, y que a la acusacion corresponde determinarexactamente

si se ha cometido o no el delito, el que suscribe, haanalizado este

extremo, relacionando los hechos que determinaron laalegada detencion
arbitraria de que fue objecto el abogado FortunatoN. Suarez, con las
circunstancias y los antecedentes de la situacion porque atravesaba
entonces la Provincia de Tayabas al igual que la Provincia de Laguna,
acondicionandolos con las palabras proferidas porel abogado Suarez que
si en su concepto no son sediciosas y subversivas,por lo menos eran
abusivas para con las autoridades del gobierno, especialmente con las de
la Provincia de Tayabas a las cuales se referian. Asi entendido el aspecto
legal de la cuestion, y haciendo aplicacion de lo que nos dice la misma
ley en lo en que consiste la detencion arbitraria, que para que exista este
delito, la detencion tenia que haber sido sin motivo legal alguno, creemos
que habia algun motivo legal para la detencion del abogado Sr. Suarez y
su companero Tomas Ruedas, y estaba justificada por haber ellos
mismos dado lugar a ello. (E.U. vs. Vallejo y otro, 11 Jur. Fil., 202; E.U.
vs. Santos, 36 Jur. Fil., 909.)
We have not overlooked the fact that this motion for dismissal was denied by
Judge Gutierrez David of August 14, 1936. It appears, however, that
subsequently Fiscal Yamsom who, as stated above was assigned by the
Department of Justice to conduct the prosecution of the case, moved for
reconsideration of the Court's order of August 14, 1936, denying the motion for
dismissal. Judge Servillano Platon granted the motion for reconsideration and
dismissed the case. In this motion for reconsideration not only does Fiscal
Yamson reiterate the arguments advanced by Fiscal Valdez y Nieto in the
latter's motion for dismissal, but adds:
(a) En lo que respecta al acusado Teniente Orais, no existe prueba alguna
en los autos de esta causa que dicho acusado haya arrestado al abogado
Suarez y Tomas Ruedas, solamente por el mero gusto de arrestarles.
Tampoco existe pruebas de que el teniente Orais haya sido inducido por
motivos de venganza o resentimiento alguno contra dicho abogado
Suarez y Tomas Ruedas al arrestales en el dia de autos. Aunque es
verdad que el Teniente Orais ha sido acusado ante el Juzgado de pazde
Sariaya por 'abusos de autoridad', sin embargo, no consta en los autos
de dicha causa que el abogado Suarez y Tomas Ruedas hayan intervenido
como abogado ni parte ofendida o testigos en la misma, por tanto, no
vemos razon alguna para que el Teniente Orais tenga motivos de vengarse
de estos por dicha causa. (Vease pag. 1, Anexo O.) A falta de prueba
sobre estos hechos, en nuestra humilde opinion, existe a favor de

Teniente Orais la presuncion de haber cumplidocon su deber al arrestar

al abogado Fortunato N. Suarez y Tomas Ruedas, teniendo en cuenta las
circunstancias extraordinarias reinantes entonces en Calauag a raiz de
los disturbios y desordenes publicos que tuvieron lugar en los municipios
de Cabuyao y Sta. Rosa de la Provincia de Laguna, dias antes de ocurrir
el suceso de autos. Se debe tener en cuenta, ademas, el hecho de que
despues de haber arrestado al abogado Fortunato N. Suarez y Tomas
Ruedas, el aqui acusado Teniente Vivencio Orais presento denuncia
inmediatamente ante su coacusado Damian Jimenez, juez de paz de
Calauag, por infraccion del articulo 142 del Codigo Penal Revisado.
We cannot overemphasize the necessity of close scrutiny and investigation of
prosecuting officers of all cases handled by them, but whilst this Court is
averse to any form of vacillation by such officers in the prosecution of public
offenses, it is unquestionable that they may, in appropriate cases, in order to
do justice and avoid injustice, reinvestigate cases in which they have already
filed the corresponding informations. In the language of Mr. Justice Sutherland
of the Supreme Court of the United States, the prosecuting officer "is the
representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law, the two fold aim of
which is that guilt shall not escape or innocence suffer. He may prosecute with
earnestness and vigor indeed, he should do so. But, while he may strike
hard blows, he is not at liberty to strike foul ones. It is as much his duty to
refrain from improper methods calculated to produce a wrongful conviction as
it is to use every legitimate means to bring about a just one," (69 United States
Law Review, June, 1935, No. 6, p. 309.)
Considering all the circumstances, we cannot say that Judge Servillano Platon,
in granting the motion for the dismissal of the case for arbitrary detention
against Lieutenant Orais and the justice of the peace of Lopez, abused his
discretion so flagrantly as to justify, in the interest of justice, a departure from
the well-settled rule that an inferior tribunal in the performance of a judicial
act within the scope of its jurisdiction and discretion cannot be controlled
by mandamus. This is especially true in a matter involving the examination of
evidence and the decision of questions of law and fact, since such a duty is not
ministerial. (High, Extraordinary Legal Remedies, sec. 156, pp. 173-175). Upon
the other hand, it should be observed that in the case of Lieutenant Orais, in

the face of the circumstances surrounding the arrest as set forth in the two
motions for dismissal by the provincial fiscal of Tayabas, which facts and
circumstances must have been investigated and duly weighed and considered
by the respondent judge of the Court of First Instance of Tayabas, the arrest
effected by Lieutenant Orais cannot be said to have be entirely unjustified. If,
"under trying circumstances and in a zealous effort to obey the orders of his
superior officer and to enforce the law, a peace officer makes a mere mistake in
good faith, he should be exculpated. Otherwise, the courts will put a premium
on crime and will terrorize peace officers through a fear of themselves violating
the law. See generally Voorhees on Arrest; 5 Corpus Juris, pp. 399, 416; 2
R.C.L., 450. (United States vs. Santos, 36 Phil., 853, 855.)"
The petition is hereby dismissed, without pronouncement regarding cost. So
ordered.
Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.

Separate Opinions

MORAN, J., dissenting:

The majority decision takes for granted that which precisely is in issue in this
case.
In the morning of May 9, 1935, the accused, Lieutenant Vivencio Orais, and
Attorney Fortunato Suarez were both in the train on their way to Calauag,
Tayabas. In the conversation which ensued between them, Attorney Suarez
made certain remarks about the abuses of authority committed by the officers
of the Government who conducted the raid against the Sakdalistas at Sariaya.
Upon inquiry of Lieutenant Orais as to what party Attorney Suarez belonged,

and, pressed upon to state whether or not he was a Sakdalista, Attorney

Suarez replied "may be". On the strength of these facts, Lieutenant Orais
arrested Attorney Suarez for the alleged offense of uttering seditious words,
and conducted him to the municipal building of Calauag and there lodged him
in jail. He filed in the justice of the peace court of the same municipality an
information against Attorney Suarez for uttering seditious words, in violation of
article 142 of then Revised Penal Code. On the day following, Lieutenant Orais,
acting under the instruction of his superior, moved for the dismissal of the
case. Thereafter, the deputy provincial fiscal of Tayabas, at the instance of
Fortunato Suarez, filed an information against Lieutenant Orais and Damian
Jimemez, the latter as justice of the peace of Calauag, Tayabas, for the crime of
arbitrary detention, the information reading as follows:
That on or about the 9th day of May, 1935, in the municipality of
Calauag, Province of Tayabas, P.I., and within the jurisdiction of this
Court, the accused Vivencio Orais being then a public officer to wit: a
second lieutenant of the Philippine Constabulary duly appointed and
qualified as such and detailed in the province of Tayabas, without any
legal ground whatsoever, moved by personal grudge and ill-feeling which
he entertained against Attorney Fortunato Suarez, did, then and there
willfully, unlawfully and feloniously arrest and detain said Attorney
Fortunato Suarez in the train while the latter was going to Calauag; and
with the purpose of concealing the illegality of said arrest and detention
of said Fortunato Suarez said accused Vivencio Orais conniving with the
other accused Damian Jimenez, justice of the peace of said municipality,
prepared and subscribed under oath before said justice of the peace a
complaint falsely charging said Fortunato Suarez with the commission of
the crime of sedition; that the said justice of the peace Damian Jimenez,
conniving with the other accused Vivencio Orais with the same purpose
of concealing the illegality of the arrest and detention of said Fortunato
Suarez, without legal grounds whatsoever willfully and unlawfully issued
an order declaring that there were merits in the complaint thereby
sanctioning the illegal and unjust arrest and detention of Fortunato
Suarez who was kept in the municipal jail of Calauag for eight hours.
The justice of the peace of Lopez, Tayabas, conducted the preliminary
investigation, and, thereafter, remanded the case to the Court of First Instance.
On April 23, 1936, the provincial fiscal moved for the dismissal of the case
upon the alleged ground, that after a supposed reinvestigation, the new facts
established therein disclose no sufficient evidence to sustain the information.

The motion was overruled by Judge Gutierrez David, then presiding the second
branch of the Court of First Instance of Tayabas. Jacinto Yamson, appointed as
special fiscal to take charge of the case, moved for the reconsideration of the
order of Judge Gutierrez David. To this motion, Attorney Suarez, through
counsel, interposed an opposition. Judge Servillano Platon, then presiding the
first branch of the Court of First Instance of Tayabas, acceded to the motion
and dismissed the information. From this order, Attorney Suarez appealed, but
the appeal was dismissed by this Court on the ground that mandamus was the
proper remedy. Accordingly, the present action is filed in this Court.
The sole question here involved is whether or not, according to the evidence in
the hands of the prosecution, there is sufficient ground to proceed with the
criminal case for arbitrary detention against Lieutenant Vivencio Orais and
Justice of the Peace Damian Jimenez. A close examination of such evidence,
which is attached to the record, will disclose that the arrest of Fortunato
Suarez by Lieutenant Orais in the morning of May 9, 1935, was prompted
obviously, not by official duty, but by personal resentment against certain
statements made by the former. I have taken pains to scrutinize carefully the
testimonies of all the witnesses who testified in the preliminary investigation,
and they show nothing seditious in the utterances of Attorney Suarez on the
occasion in question. My conclusion, then, is that the detention of Attorney
Suarez by Lieutenant Orais was arbitrary, and that the charge made against
Lieutenant Orais for arbitrary detention is well founded on facts.
The fiscal, in moving for the dismissal of the case before the Court of First
Instance of Tayabas, mentioned a reinvestigation conducted by him of the case,
in which he supposedly found a new evidence warranting its dismissal.
Counsel for Attorney Fortunato Suarez, however, insisted on the production of
such new evidence before the court, but the prosecution could not respond to
such demand. This is an indication that the supposed additional evidence
never existed.
But the majority, instead of deciding the issue as to whether or not the
evidence in the hands of the prosecution was sufficient to proceed with the
charge for arbitrary detention, takes for granted that such evidence was not
sufficient, relying upon the assumption that the "circumstances surrounding
the arrest as set forth in the two motions for dismissal by the provincial fiscal
of Tayabas . . . must have been investigated and duly weighed and considered
by the respondent judge of the Court of First Instance of Tayabas." In other
words, the majority assumes that which is the subject of the petitioner's

challenge, which is tantamount to a refusal to consider his complaint after he

has been told that he may come to this court by mandamus proceedings.
Although a broad discretion must be conceded to prosecuting attorneys and
trial courts in the determination of sufficient grounds for dismissing or
continuing a criminal prosecution, yet when, as in this case, the basis for the
action of both officers fiscal and judge is produced in this court, and we
are called upon to determine whether, on the basis of such evidence and
determine the question at issue. And, in the present case, it is my opinion that
the evidence we have in the record sufficiently shows that the prosecution for
arbitrary detention against Lieutenant Orais must take its course, and that its
dismissal without trial by the Court of First Instance is without basis on facts
and constitutes an abuse of discretion.
I agree, however, that there is no reason for including in the charge for
arbitrary detention the justice of the peace of Calauag, Damian Jimenez. The
evidence shows no connection between him and Lieutenant Orais in the
arbitrary arrest of Attorney Fortunato Suarez.
My vote, therefore, is that the petition for mandamus must be granted with
respect to the prosecution against Lieutenant Vivencio Orais, but denied with
respect to the prosecution against Damian Jimenez.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 127107 October 12, 1998

PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners,
vs.
HON. SESINANDO VILLON in his capacity as Presiding Judge of the
Regional Trial Court of Pampanga, Branch 54; HON. TEOFISTO
GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO
YABUT, SERVILLANO YABUT, MARTIN YABUT and FORTUNATO
MALLARI, respondents.

DAVIDE, JR., J.:

The issues raised by petitioners in their Memorandum 1 and by the Office of the
Solicitor General in its Comment 2in this special civil action for certiorari,
prohibition and mandamus under Rule 65 of the Rules of Court filed by
petitioners, children of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of
Masantol, Pampanga, may be summarized as follows:
A. WHETHER THE OFFICE OF THE PROVINCIAL
PROSECUTOR COMMITTED GRAVE ABUSE OF
DISCRETION IN: (1) GIVING DUE COURSE TO THE
MOTION FOR REINVESTIGATION BY PRIVATE
RESPONDENTS AGAINST WHOM WARRANTS OF
ARREST WERE ISSUED BUT WHO HAD NOT YET
BEEN BROUGHT INTO THE CUSTODY Of THE LAW;
and (2) FILING THE INFORMATION FOR HOMICIDE
DESPITE KNOWLEDGE OF THE APPEAL FROM SAID
PROSECUTOR'S RESOLUTION TO THE OFFICE OF
THE SECRETARY OF JUSTICE.
B. WHETHER PUBLIC RESPONDENT JUDGE ACTED
IN EXCESS OF JURISDICTION IN PROCEEDING WITH
THE ARRAIGNMENT AND IN DENYING PETITIONERS'
MOTIONS TO SET ASIDE ARRAIGNMENT AND
RECONSIDERATION THEREOF DESPITE HIS
KNOWLEDGE OF THE PENDENCY OF THE APPEAL
AND THE SUBMISSION OF VITAL EVIDENCE TO
PROVE THAT MURDER AND NOT HOMICIDE WAS
COMMITTED BY THE ACCUSED.
C. WHETHER PUBLIC RESPONDENT SECRETARY OF
JUSTICE COMMITTED GRAVE ABUSE OF
DISCRETION IN RECONSIDERING HIS ORDER
FINDING THAT THE CRIME COMMITTED WAS
MURDER AND DIRECTING THE PROVINCIAL
PROSECUTOR TO AMEND THE INFORMATION FROM
HOMICIDE TO MURDER.

The records and the pleadings of the parties disclose the antecedents.
On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence
in Barangay San Nicolas, Masantol, Pampanga.
On 5 November 1995, a complaint for Murder was filed before the Municipal
Circuit Trial Court (MCTC) of Macabebe-Masantol in Macabebe, Pampanga, by
SPO1 Renato Layug of the Masantol Police Station against private respondents
Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino
Mandap, Casti David, Francisco Yambao, Juan Magat, Arturo Naguit,
Fortunato Mallari, Jesus de la Cruz, Joselito Miranda, SPO3 Gilberto
Malabanan, Aniano Magnaye, Vladimir Yumul, a certain "Danny," and a certain
"Koyang/Arding." The complaint was docketed as Criminal Case No. 95-360.
After conducting a preliminary examination in the form of searching questions
and answers, and finding probable cause, Judge Designate Serafin B. David of
the MCTC issued warrants for the arrest of the accused and directed them to
file their counter-affidavits.
Only accused Evelino David, Justino Mandap, Juan Magat and Francisco
Yambao were arrested; while only Francisco Yambao submitted his counter
affidavit. 3
On 1 December 1995, after appropriate proceedings, Judge David issued a
Resolution 4 in Criminal Case No. 95-360 finding reasonable ground to believe
that the crime of murder had been committed and that the accused were
probably guilty thereof. His findings of fact and conclusions were as follows:
That on or about November 3, 1995, all the accused under the
leadership of Mayor Santiago "Docsay" Yabut, including two John
Does identified only as Dan/Danny and Koyang/Arding, went to
Masantol, Pampanga for the purpose of looking for a certain PO3
Virgilio Dimatulac.
At first, the accused, riding on [sic] a truck, went to the Municipal
Hall of Masantol, Pampanga inquiring about PO3 Virgilio
Dimatulac. Thereafter, they went to the house of Mayor Lacap for
the purpose of inquiring [about] the [the location of the] house of
PO3 Virgilio Dimatulac, until finally, they were able to reach the
house of said Virgilio Dimatulac at San Nicolas, Masantol,
Pampanga.

Upon reaching the house of PO3 Virgilio Dimatulac, the truck the
accused were all riding, stopped and parked in front of the house
of said PO3 Virgilio Dimatulac, some of the accused descended
from the truck and positioned themselves around the house while
others stood by the truck and the Mayor stayed [in] the truck with
a bodyguard.
Accused Billy Yabut, Kati Yabut and Francisco Yambao, went
inside the house of Virgilio Dimatulac [and] were even offered
coffee.
[A]ccused Yabut brothers (Kati and Billy) strongly suggested to
Virgilio Dimatulac to go down to see the Mayor outside in front of
his house to say sorry.
[W]hen Virgilio Dimatulac went down his house, suddenly [a] gun
shot was heard and then, the son of Virgilio Dimatulac, Peter Paul,
started to shout the following words: "What did you do to my
father?!"
One of the men of Mayor "Docsay" Yabut shot Virgilio Dimatulac,
and as a consequence, he died; and before he expired, he left a
dying declaration pointing to the group of Mayor "Docsay" Yabut as
the one responsible.
That right after Virgilio Dimatulac was shot, accused "Docsay"
Yabut ordered his men to go on board the truck and immediately
left away leaving Virgilio Dimatulac bleeding and asking for help.
On their way home to Minalin, accused Santiago "Docsay" Yabut
gave money to accused John Doe Dan/Danny and Francisco "Boy"
Yambao was asked to bring the accused John Doe to Nueva Ecija
which he did.
Further, accused Santiago "Docsay" Yabut told his group to deny
that they ever went to Masantol.
The court, after having conducted preliminary examination on the
complainant and the witnesses presented, [is] satisfied that there is
a [sic] reasonable ground to believe that the crime of murder was

committed and that the accused in conspiring and confederating

with one another are probably guilty thereof.
Circumstantial evidence strongly shows the presence of conspiracy.
That in order not to frustrate the ends of justice, warrants of arrest
were issued against Santiago Yabut, Martin Yabut, Servillano
Yabut, Francisco Yambao, Avelino David, Casti David, Catoy
Naguit, Fortunato Mallari, Boy dela Cruz, Lito Miranda and Juan
Magat with no bail recommended.
However, with respect to accused Dan/Danny and Koyang/Arding,
the court directed the police authorities to furnish the court [a]
description personae of the accused for the purpose of issuing the
needed warrant of arrest.
The accused were furnish [sic] copies of the complaint and
affidavits of witnesses for them to file their counter-affidavits in
accordance to [sic] law.
As of this date, only accused Francisco "Boy" Yambao filed his
counter-affidavit and all the others waived the filing of the same.
A close evaluation of the evidence submitted by the accused
Francisco Yambao which the court finds it [sic] straightforward and
more or less credible and seems to be consistent with truth,
human nature and [the] natural course of things and lack of
motives [sic], the evidence of guilt against him is rather weak
[compared to] the others, which [is why] the court recommends a
cash bond of P50,000.00 for his provisional liberty, and the court's
previous order of no bail for said accused is hereby reconsidered.
WHEREFORE, premises considered, the Clerk of Court is directed
to forward he entire records of the case to the Office of the
Provincial Prosecutor of Pampanga for further action, together with
the bodies of accused Francisco Yambao and Juan Magat to be
remanded to the provincial Jail of Pampanga. 5 (emphasis supplied)
In a sworn statement, 6 petitioner Peter Paul Dimatulac narrated that Mayor
Santiago Yabut, accompanied by a number of bodyguards, went to the
residence of PO3 Virgilio Dimatulac to talk about a problem between the Mayor

and Peter Paul's uncle, Jun Dimatulac. Virgilio warmly welcomed the group
and even prepared coffee for them. Servillano and Martin Yabut told Virgilio to
come down from his house and apologize to the Mayor, but hardly had Virgilio
descended when Peter Paul heard a gunshot. While Peter Paul did not see who
fired the shot, he was sure it was one of Mayor Yabut's companions. Peter Paul
opined that his father was killed because the latter spoke to the people of
Minalin, Pampanga, against the Mayor, Peter Paul added in a supplemental
statement (Susog na Salaysay) 7 that he heard Mayor Yabut order Virgilio killed.
It his Sinumpaang Salaysay, 8 Police Officer Leopoldo Soriano of the Masantol
Municipal Police Station in Masantol, Pampanga, declared that on 3 November
1995, between 3:30 and 4:00 p.m., while he was at the polite station, three
men approached him and asked for directions to the house of Mayor Epifanio
Lacap. Soriano recognized one of the men as SPO1 Labet Malabanan of
Minalin, Pampanga. The group left after Soriano gave them directions, but one
of the three returned to ask whether PO3 Virgilio Dimatulac was on duty, to
which Soriano replied that Dimatulac was at home. The group left on board a
military truck headed for San Nicolas, Masantol, Pampanga. Later that day,
SPO2 Michael Viray received a telephone call at the police station reporting
that someone had shot Virgilio Dimatulac.
Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores
conducted a reinvestigation. However, it is not clear from the record whether
she conducted the same motu proprio or upon motion of private respondents
Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter YABUTs). All of
the accused who had not submitted their counter-affidavits before the MCTC,
except accused "Danny" and "Koyang/Arding," submitted their counteraffidavits to Assistant Provincial Prosecutor Alfonso Flores.
In her Resolution dated 29 January 1996, 9 Assistant Provincial Prosecutor
Alfonso-Flores found that the YABUTs and the assailant Danny, to the
exclusion of the other accused, were in conspiracy with one another, but that
the offense committed was only homicide, not murder. In support of such
finding, Alfonso-Flores reasoned thus:
The complainant in this case charges the crime of Murder qualified
by treachery. It must be noted that to constitute treachery, two
conditions must be present, to wit, 1) the employment of the [sic]
means of execution were give [sic] the person attacked no

opportunity to defend himself or to retaliate; and 2) the means of

execution were deliberately or consciously adopted . . . .
In the instant case, the presence of the first requisite was clearly
established by the evidence, such that the attack upon the victim
while descending the stairs was so sudden and unexpected as to
render him no opportunity to defend himself or to retaliate.
However, the circumstances, as portrayed by witness Peter Paul
Dimatulac, negate the presence of the second requisite. According
to the said witness, the victim was already descending when Mayor
Yabut commanded the assailant to shoot him, and immediately
thereafter, he heard the gunshot. This would therefore show that
the assailant did not consciously adopt the position of the victim at
the time he fired the fatal shot. The command of Mayor Yabut to
shoot came so sudden as to afford no opportunity for the assailant
to choose the means or method of attack. The act of Mayor Yabut
in giving the command to shoot further bolster[s] the fact that the
conspirator did not concert the means and method of attack nor
the manner thereof. Otherwise there would have been no necessity
for him to give the order to the assailant. The method and manner
of attack was adopted by the assailant at the spur of the moment
and the vulnerable position of the victim was not deliberately and
consciously adopted. Treachery therefore could not be appreciated
and the crime reasonably believe[d] to have been committed is
Homicide as no circumstance would qualify the killing to murder.
Alfonso-Flores then ruled:
WHEREFORE, in view of the foregoing, it is hereby recommended
that:
1. An information be filed with the proper
court charging Santiago, Servillano and
Martin all surnamed Yabut, and one John
Doe alias Danny as conspirators in the
crime of Homicide;
2. The case be dismissed against accused
Evelino David, Justino Mandap a.k.a.
Casti David, Francisco Yambao, Juan
Magat, Arturo Naguit, Bladimir Dimatulac,

Fortunato Mallari, Aniano Magnaye,

Gilberto Malabanan, Jesus dela Cruz and
Joselito Miranda.
Bail of P20,000.00 for each of the accused is likewise
recommended.
The Resolution discloses that Alfonso-Flores conducted a hearing on 11
January 1996 and clarificatory questions were propounded only to Peter Paul
Dimatulac.
On 23 February 1996, before the Information for homicide was filed,
complainants, herein petitioners, appealed the resolution of Alfonso-Flores to
the Secretary of the Department of Justice (DOJ). 10 They alleged in their
appeal that:
1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT
ONLY ERRED IN RULING THAT THERE WAS NO
TREACHERY TO QUALIFY THE CRIME TO MURDER,
BUT LIKEWISE ERRED IN NOT APPRECIATING THE
PRESENCE OF OTHER QUALIFYING
CIRCUMSTANCES, TO WIT:
(A) THAT THE ACCUSED COMMITTED
THE CRIME WITH THE AID OF ARMED
MEN AND WITH THE USE OF A PERSON
TO INSURE OR AFFORD IMPUNITY;
(B) THAT THE CRIME WAS COMMITTED
IN CONSIDERATION OF A PRICE,
REWARD, OR PROMISE;
(C) THAT THE CRIME WAS COMMITTED
ON THE OCCASION OF A DESTRUCTIVE
CYCLONE, WHEN THE SUPER-TYPHOON
"ROSING" WAS RAGING ON NOVEMBER
3, 1995;
(D) THAT THE CRIME WAS COMMITTED
WITH EVIDENT PREMEDITATION;

2. THAT THE HONORABLE INVESTIGATING

ASSISTANT PROSECUTOR ERRED IN DISMISSING
THE COMPLAINT AGAINST FORTUNATO MALLARI
AND FRANCISCO YAMBAO BY RULING OUT
CONSPIRACY WITH THE YABUT BROTHERS AS
AGAINST FORTUNATO MALLARI AND NOT
CHARGING FRANCISCO YAMBAO AS AN ACCESSORY
TO MURDER.
To refute Alfonso-Flores' finding that the means of execution were not
deliberately adopted, petitioners asserted that the meeting of the accused and
the victim was not accidental as the former purposely searched for the victim
at the height of a typhoon, while accused Mayor Santiago Yabut even remarked
to his co-accused "Danny," "Dikitan mo lang, alam mo na kung ano ang gagawin
mo, bahala ka na" (Just stay close to him, you know what to do). Thus, Danny
positioned himself near the stairs to goad the victim to come out of his house,
while Fortunato Mallari represented to the deceased that the latter was being
invited by a certain General Ventura. When the victim declined the invitation
by claiming he was sick, accused Servillano Yabut persuaded the victim to
come down by saying, "[T]o settle this matter, just apologize to the Mayor who is
in the truck." In view of that enticement, the victim came down, while Danny
waited in ambush. To emphasize the accused's resolve to kill the deceased,
petitioners further narrated that when the deceased ran away after the first
shot, the gunman still pursued him, while Mayor Santiago Yabut, who was a
doctor, kept away at a safe distance and told everyone in the truck, "Tama na,
bilisan ninyo," (That's enough, move quickly) without giving medical assistance
to the deceased and without exerting any effort to arrest the gunman.
The Office of the Provincial Prosecutor of Pampanga was furnished with a copy
of the Appeal.
On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a
Resolution 11 ordering the release of accused Evelino David, Justino Mandap,
Juan Magat and Arturo Naguit (who were then detained) in view of the
aforementioned resolution of Alfonso-Flores, which, as stated in the order, the
Provincial Prosecutor approved "on February 7, 1996."
On 28 February 1996, an Information 12 for Homicide, signed by Assistant
Provincial Prosecutor Flores and Provincial Prosecutor Jesus Y. Manarang, was
filed before Branch 55 of the Regional Trial Court (RTC) in Macabebe,

Pampanga, against the YABUTs and John Doe alias "Danny Manalili" and
docketed as Criminal Case No. 96-1667(M). The accusatory portion of the
information read as follows:
That on or about the 3rd day of November, 1995, in the
municipality of Masantol, province of Pampanga, Philippines and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually
helping one another, with deliberate intent to take the life of PO3
Virgilio A. Dimatulac, did then and there wilfully, unlawfully and
feloniously shoot the said PO3 Virgilio A. Dimatulac on his
abdomen with the use of a handgun, thereby inflicting, upon him a
gunshot wound which cause[d] the death of the said victim.
All contrary to law.
The Information, although dated 29 January 1996 was signed by Provincial
Prosecutor Manarang on "2/27/96",i.e., a day before its filing in court.
On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55,
approved the cash bonds of the YABUTs, each in the amount of P20,000.00,
and recalled the warrants for their arrest. 13
On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as
private prosecutor, filed two (2) motions with the trial court: (1) a Motion to
Issue Hold Departure Order Against All Accuseds 14 [sic]; and an (2) Urgent
Motion to Defer Proceedings, 15 copies of which were furnished the Office of the
Provincial Prosecutor of Pampanga. The second motion was grounded on the
pendency of the appeal before the Secretary of Justice and a copy thereof was
attached to the motion. Judge Roura set the motions for hearing on 8 March
1996. 16
On 7 March 1996, Judge Roura ordered the arrest of the remaining accused,
Danny Manalili. 17
On 8 March 1996, the YABUTs filed their opposition 18 to the Motion to Issue
Hold Departure Order and the Motion to Defer Proceedings. The YABUTs
asserted that, as to the first, by posting bail bonds, they submitted to the
jurisdiction of the trial court and were bound by the condition therein to
"surrender themselves whenever so required by the court, and to seek

permission from the court should any one of them desire to travel;" and, as to
the second, the pendency of the appeal before the Secretary of Justice was not
a ground to defer arraignment; moreover, the trial court had to consider their
right to a speedy trial, especially since there was no definite date for the
resolution of the appeal. Then invoking this Court's rulings in Crespo v.
Mogul 19 and Balgos v. Sandiganbayan, 20 the YABUTs further asserted that
petitioners should have filed a motion to defer the filing of the information for
homicide with the Office of the Provincial Prosecutor, or sought, from the
Secretary of Justice, an order directing the Provincial Prosecutor to defer the
filing of the information in court.
In a Reply 21 to the opposition, the private prosecution, citing Section 20 of
Rule 114 of the Rules of Court, insisted on the need for a hold-departure order
against the accused; argued that the accused's right to a speedy trial would not
be impaired because the appeal to the Secretary of Justice was filed pursuant
to Department Order No. 223 of the DOJ and there was clear and convincing
proof that the killing was committed with treachery and other qualifying
circumstances not absorbed in treachery; and contended that the accused's
invocation of the right to a speedy trial was inconsistent with their filing of
various dilatory motions during the preliminary investigation. The YABUTs filed
a Rejoinder 22 to this Opposition.
On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a
Hold Departure Order until "such time that all the accused who are out on bail
are arraigned," but denied the Motion to Defer Proceedings as he found no
compelling reason therefor, considering that although the appeal was filed on
23 February 1996, "the private prosecution has not shown any indication that
[the] appeal was given due course by the Secretary of Justice." Judge Roura
also set the arraignment of the accused on 12 April 1996. 23
It would appear that the private prosecution moved to reconsider the order
denying the Motion to Defer Proceedings since, on 12 April 1996, Judge Roura
issued an Order 24 giving the private prosecutor "ten (10) days from today
within which to file a petition for certiorari questioning the order of the Court
denying his motion for reconsideration of the order of March 26, 1996."
Arraignment was then reset to 3 May 1996.
On 19 April 1996, petitioners filed a motion to inhibit Judge Roura 25 from
hearing Criminal Case No. 96-1667(M) on the ground that he: (a) hastily set
the case for arraignment while the former's appeal in the DOJ was still pending

evaluation; and (b) prejudged the matter, having remarked in open court that
there was "nothing in the records of the case that would qualify the case into
Murder." At the same time, petitioners filed a petition for prohibition 26 with the
Court of Appeals docketed therein as CA-G.R. SP No. 40393, to enjoin Judge
Roura from proceeding with the arraignment in Criminal Case No. 96-1667(M).
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and
Comment 27 with the trial court wherein he opposed the motion to inhibit
Judge Roura; manifested that "there is nothing in the record . . . which shows
that the subject killing is qualified into murder;" and announced that he "will
no longer allow the private prosecutor to participate or handle the prosecution
of [the] case" in view of the latter's petition to inhibit Judge Roura.
On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the
case transferred to Branch 54 of the RTC, presided over by herein public
respondent Judge Sesinando Villon. 28
On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received
the record of Criminal Case No. 96-1667(M). 29
On 30 April 1996, petitioners filed with the trial court a
Manifestation 30 submitting, in connection with their Motion to Defer
Proceedings and Motion to Inhibit Judge Roura, documentary evidence to
support their contention that the offense committed was murder, not homicide.
The documents which they claimed were not earlier submitted by the public
prosecution were the following:
a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.
b. Sinumpaang Salaysay of Vladimir Yumul y
Dimatulac.
c. Counter-Affidavit of Francisco I. Yambao.
d. Counter-Affidavit of SPO2 Fortunato Mallari.
e. Sinumpaang Salaysay of Aniano Magnaye.
f. Sinumpaang Salaysay of Leopoldo Soriano.

g. Transcript of Stenographic Notes of the Preliminary

Investigation of Criminal Case No. 95-360, containing
the testimony of:
a. Peter Paul Dimatulac
b. Vladimir D. Yumul
c. SPO1 Gilberto Malabanan
d. PO3 Alfonso Canilao
h. Investigation Report-dated November 4, 1995.
i. Dying declaration of Virgilio Dimatulac.
j. Sketch
k. Unscaled Sketch
Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP
No. 40393, a Resolution 31 directing respondent therein to file his comment to
the petition within ten days from notice and to show cause within the same
period "why no writ of preliminary injunction should be issued as prayed for in
the petition." However, the Court of Appeals "deferred action" on the prayer for
a temporary restraining order "until after the required comment [was]
submitted."
On 3 May 1996, petitioners filed an Ex-Parte Manifestation 32 with the RTC,
furnishing the trial court with a copy of the aforementioned resolution of the
Court of Appeals and drawing the attention of the trial court to the rulings of
this Court in "Valdez vs. Aquilisan, (133 SCRA 150), Galman vs.
Sandiganbayan, and Eternal Gardens Memorial Park Corp. vs. Court of Appeals .
. . as well as the decision in Paul G. Roberts vs. The Court of Appeals."
On 3 May 1996, Judge Villon issued an order resetting arraignment of the
accused to 20 May 1996. 33 On the latter date, the YABUTs each entered a plea
of not guilty. 34
Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an
Urgent Motion to Set Aside Arraignment, 35 citing the resolution of 30 April

1996 of the Court of Appeals in CA-G.R. SP No. 40393 which, inter alia,
deferred resolution on the application for a temporary restraining order "until
after the required comment is submitted by the respondent;" stressed that the
filing of the information for the lesser offense of homicide was "clearly unjust
and contrary to law in view of the unquestionable attendance of circumstances
qualifying the killing to murder;" and asserted that a number of Supreme
Court decisions supported suspension of the proceedings in view of the
pendency of their appeal before the DOJ.
On 31 May 1997, Judge Villon issued an Order 36 directing the accused to file
their comment on the Urgent Motion to Set Aside Arraignment within fifteen
days from notice.
In a letter 37 addressed to the Provincial Prosecutor dated 7 June 1996, public
respondent Secretary Teofisto Guingona of the DOJ resolved the appeal in favor
of petitioners. Secretary Guingona ruled that treachery was present and
directed the Provincial Prosecutor of San Fernando, Pampanga "to amend the
information filed against the accused from homicide to murder," and to include
Fortunato Mallari as accused in the amended information. The findings and
conclusions of Secretary Guingona read as follows:
Contrary to your findings, we find that there is treachery that
attended the killing of PO3 Dimatulac. Undisputedly, the victim
was suddenly shot while he was descending the stairs. The attack
was unexpected as the victim was unarmed and on his way to
make peace with Mayor Yabut, he was unsuspecting so to speak.
From the circumstances surrounding his killing, PO3 Dimatulac
was indeed deprived of an opportunity to defend himself or to
retaliate.
Corollarily, we are also convinced that such mode of attack was
consciously and deliberately adopted by the respondents to ensure
the accomplishment of their criminal objective. The admission of
respondent Malabanan is replete with details on how the principal
respondent, Mayor Yabut, in conspiracy with the assailant and
others, had consciously and deliberately adopted means to ensure
the execution of the crime. According to him, while they were on
their way to the victim's house, Mayor Yabut already instructed
Danny, the assailant, that, "Dikitan mo lang, alam no na king ano
ang gagawin mo, bahala ka na" This explains why Danny

positioned himself near the stairs of the victim's house armed with
a handgun, such positioning was precisely adopted as a means to
ensure the accomplishment of their evil design and Mayor Yabut
ordered nobody else but Danny to shoot the victim while
descending the stairs as his position was very strategic to ensure
the killing of the victim.
As has been repeatedly held, to constitute treachery, two
conditions must be present, to wit: (1) employment of means of
execution that gives the person [attacked] no opportunity to defend
himself or retaliate; and (2) the means of execution were
deliberately or consciously adopted (People vs. Talaver, 230 SCRA
281 [1994]). In the case at bar, these two (2) requisites are present
as established from the foregoing discussion. Hence, there being a
qualifying circumstance of treachery, the crime committed herein
is murder, not homicide (People vs. Gapasin, 231 SCRA 728
[1994]).
Anent the alleged participation of respondents Fortunato Mallari
and Francisco Yambao, we find sufficient evidence against Mallari
as part of the conspiracy but not against Yambao. As can be
gleaned from the sworn-statement of Yambao, which appears to be
credible, Mallari tried also to persuade the victim to go with them,
using as a reason that he (victim) was being invited by General
Ventura. He was also seen trying to fix the gun which was used in
killing the victim. These actuations are inconsistent with the claim
that his presence at the crime scene was merely passive.
On the other hand, we find credible the version and explanation of
Yambao. Indeed, under the obtaining circumstances, Yambao had
no other option but to accede to the request of Mayor Yabut to
provide transportation to the assailant. There being an actual
danger to his life then, and having acted under the impulse of an
uncontrollable fear, reason dictates that he should be freed from
criminal liability. 38
The YABUTs moved to reconsider the resolution, 39 citing Section 4 of
"Administrative/Administration Order No. 223 of the DOJ." 40

In an Ex-Parte Manifestation 41 dated 21 June 1996, petitioners called the trial

court's attention to the resolution of the Secretary of Justice, a copy of which
was attached thereto. Later, in a Manifestation and Motion 42 dated 1 July
1996, petitioners asked the trial court to grant their motion to set aside
arraignment. Attached thereto was a copy of the Manifestation and Motion 43 of
the Solicitor General dated 18 June 1996 filed with the Court of Appeals in CAG.R. SP No. 40393 wherein the Solicitor General joined cause with petitioners
and prayed that "in the better interest of justice, [the] Petition for Prohibition be
GRANTED and a writ of prohibition be ISSUED forthwith." In support of said
prayer, the Solicitor General argued:
2. There is merit to the cause of petitioners. If the
Secretary of Justice would find their Appeal
meritorious, the Provincial Prosecutor would be
directed to upgrade the Information to Murder and
extreme prejudice if not gross injustice would thereby
have been avoided.
3. Consequently, the undersigned counsel interpose no
objection to the issuance of a writ of prohibition
enjoining respondent Judge from holding further
proceedings in Criminal Case No. 96-1667-M,
particularly in holding the arraignment of the accused,
pending resolution of the Appeals with the Secretary of
Justice.
The YABUTs opposed 44 petitioner's Manifestation and Motion dated 1
July 1996 because they had already been arraigned and, therefore,
would be placed in double jeopardy; and that the public prosecutor
not the private prosecutor had control of the prosecution of the case.
In his letter 45 dated 1 July 1996 addressed to the Provincial Prosecutor of
Pampanga, the Secretary of Justice set aside his order to amend the
information from homicide to murder considering that the appeal was rendered
moot and academic by the arraignment of the accused for homicide and their
having entered their pleas of not guilty. The Secretary stated:
Considering that Santiago Yabut, Servillano Yabut and Martin
Yabut had already been arraigned on May 20, 1996 and had
pleaded not guilty to the charge of homicide, as shown by a copy of

the court order dated May 20, 1996, the petition for review insofar
as the respondents-Yabut are concerned has been rendered moot
and academic.
However, the Secretary reiterated that Fortunato Mallari should be
included in the information for homicide.
On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to
Amend Information and to Admit Amended Information. 46 The Amended
Information 47 merely impleaded Fortunato Mallari as one of the accused.
In his Order 48 of 1 August 1996, Judge Villon denied petitioners' motion to set
aside arraignment, citing Section 4, DOJ Department Order No. 223, and the
letter of the Secretary of Justice of 1 July 1996. Petitioners forthwith moved for
reconsideration 49 of the order, arguing that the Motion to Defer the
Proceedings filed by petitioners was meritorious and did not violate the
accused's right to speedy trial; and that the DOJ had ruled that the proper
offense to be charged was murder and did not reverse such finding. Petitioners
also cited the Solicitor General's stand 50 in CA-G.R. SP No. 40393 that holding
accused's arraignment in abeyance was proper under the circumstances.
Finally, petitioners contended that in proceeding with the arraignment despite
knowledge of a petition for prohibition pending before the Court of Appeals, the
trial court violated Section 3(d), Rule 71 of the Rules of Court on indirect
contempt. The YABUTs opposed the motion on the ground that it raised no
argument which had not yet been resolved. 51
On 3 September 1996, petitioners filed a Motion to Defer Arraignment of
Accused Fortunato Mallari, 52 which the trial court granted in view of
petitioners' motion for reconsideration of the court's order denying petitioners'
motion to set aside private respondents' arraignment. 53 As expected, Mallari
moved to reconsider the trial court's order and clamored for consistency in the
trial court's rulings. 54
In an order 55 dated 15 October 1996, Judge Villon denied reconsideration of
the order denying petitioners' motion to set aside arraignment, citing the
YABUTs' right to a speedy trial and explaining that the prosecution of an
offense should be under the control of the public prosecutor, whereas
petitioners did not obtain the conformity of the prosecutor before they filed
various motions to defer proceedings. Considering said order, Judge Villon
deemed accused Mallari's motion for reconsideration moot and academic. 56

On 16 October 1996, the Court of Appeals promulgated its decision 57 in CAG.R. SP No. 40393 dismissing the petition therein for having become moot and
academic in view of Judge Roura's voluntary inhibition, the arraignment of the
YABUTs and the dismissal, by the Secretary of Justice, of petitioners' appeal as
it had been mooted by said arraignment.
Judge Villon was later detailed to Branch 24 of the Regional Trial Court of
Manila, and Judge Roura was ordered by the Supreme Court to preside over
cases pending in Branch 54 of the Regional Trial Court of Macabebe,
Pampanga, which was previously presided over by Judge Villon. 58 Judge Roura
informed the Office of the Court Administrator and this Court that he had
already inhibited himself from hearing Criminal Case No. 96-1667(M). 59
On 28 December 1996, petitioners filed the instant Petition
for Certiorari/Prohibition and Mandamus. They urge this Court to reverse the
order of respondent Judge denying their Motion to Set Aside Arraignment; set
aside arraignment of private respondents; order that no further action be taken
by any court in Criminal Case No. 96-1667(M) until this petition is resolved;
and order respondents Secretary of Justice and the prosecutors concerned to
amend the information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by
treachery since private respondents tricked the victim into coming out of his
house and then shot him while he was going down the stairs. There was,
petitioners claim, "an orchestrated effort on the part of [private respondents] to
manipulate the rules on administrative appeals with the end in view of evading
prosecution for the [non-bailable] offense of murder," as shown by the following
events or circumstances:
(1) Assistant Provincial Prosecutor Alfonso-Flores
downgraded the nature of the crime committed to
homicide, a bailable offense, on strength of a motion
for reinvestigation filed by the YABUTs who had not yet
been arrested.
(2) Respondent Mayor and his companions returned to
Minalin after the killing and went into hiding for four
(4) months until the offense charged was downgraded.

(3) The information for homicide was nevertheless filed

despite notice to the Office of the Provincial Prosecutor
of the appeal filed with the Secretary of Justice and
request to defer any action on the case.
(4) The Office of the Public Prosecutor of Pampanga
disallowed the private prosecutor from further
participating in the case.
(5) Judge Roura denied the motion to defer
proceedings and declared in open court that there was
no prima facie case for murder, notwithstanding the
pendency of petitioners' appeal with respondent
Secretary of Justice.
(6) Even before receipt by petitioners of Judge Roura's
order inhibiting himself and the order regarding the
transfer of the case to Branch 54, public respondent
Judge Villon set the case for arraignment and, without
notice to petitioners, forthwith arraigned the accused
on the information for homicide on 20 May 1996,
despite the pendency of the petition for prohibition
before the Court of Appeals and of the appeal before
the DOJ.
(7) The Pampanga Provincial Prosecutor's Office did
not object to the arraignment nor take any action to
prevent further proceedings on the case despite
knowledge of the pendency of the appeal.
(8) The Provincial Prosecutor did not comply with the
resolution of 7 June 1996 of the Secretary of Justice
directing the amendment of the information to charge
the crime of murder.
Petitioners argue that in light of Roberts, Jr., v. Court of Appeals, 60 respondent
Judge acted in excess of his jurisdiction in proceeding with private
respondents' arraignment for homicide and denying petitioners' motion to set
aside arraignment. Moreover, although respondent Judge Villon was not the
respondent in CA-G.R. SP No. 40393; he should have deferred the proceedings
just the same as the very issue in said case was whether or not the RTC could

proceed with the arraignment despite the pending review of the case by
respondent Secretary of Justice. Further, Judge Villon unjustly invoked private
respondents' right to a speedy trial, after a lapse of barely three (3) months
from the filing of the information on 23 February 1996; overlooked that private
respondents were estopped from invoking said right as they went into hiding
after the killing, only to resurface when the charge was reduced to homicide;
and failed to detect the Provincial Prosecutor's bias in favor of private
respondents. Judge Villon should have been more circumspect as he knew that
by proceeding with the arraignment, the appeal with the DOJ would be
rendered technically nugatory.
Finally, petitioners submit that the DOJ rule prohibiting appeals from
resolutions of prosecutors to the Secretary of Justice once the accused had
already been arraigned applies only to instances where the appellants are the
accused, since by submitting to arraignment, they voluntarily abandon their
appeal.
In their comment, private respondents contend that no sufficient legal
justification exists to set aside private respondents' arraignment, it having
already been reset twice from 12 April 1996 to 3 may 1996, due to petitioners'
pending appeals with the DOJ; and from 3 May 1996 to 20 May 1996, due to
the transfer of this case to Branch 54. Moreover, as of the latter date, the DOJ
had not yet resolved petitioners' appeal and the DOJ did not request that
arraignment be held in abeyance, despite the fact that petitioners' appeal had
been filed as early as 23 February 1996, at least 86 days prior to private
respondents' arraignment. They point out that petitioners did not move to
reconsider the RTC's 26 March 1996 denial of the Motion to Defer, opting
instead for Judge Roura's recusal and recourse to the Court of Appeals, and as
no restraining order was issued by the Court of Appeals, it was but proper for
respondent Judge to proceed with the arraignment of private respondent, to
which the public and private prosecutors did not object.
Private respondents further argue that the decision of respondent Secretary,
involving as it did the exercise of discretionary powers, is not subject to judicial
review. Under the principle of separation of powers, petitioners' recourse should
have been to the President. While as regards petitioners' plea that the Secretary
be compelled to amend the information from homicide to murder, private
respondents submit that mandamus does not lie, as the determination as to
what offense was committed is a prerogative of the DOJ, subject only to the
control of the President.

As regards DOJ Department Order No. 223, private respondents theorize that
appeal by complainants is allowed only if the complaint is dismissed by the
prosecutor and not when there is a finding of probable cause, in which case,
only the accused can appeal. Hence, petitioners' appeal was improper.
Finally, private respondents stress the fact that petitioners never appealed the
withdrawal by the public prosecutor of the private prosecutor's authority to
handle the case.
In its comment for the public respondents, the Office of the Solicitor General
(OSG) prays that the petition be denied because: (a) in accordance with Section
4 of DOJ Order No. 223, upon arraignment of the accused, the appeal to the
Secretary of Justice shall be dismissed motu proprio; (b) the filing of the
information for homicide was in compliance with the directive under Section
4(2), D.O. No. 223, i.e., an appeal or motion for reinvestigation from a
resolution finding probable cause shall not hold the filing of the information in
court; (c) the trial court even accommodated petitioners by initially deferring
arraignment pending resolution by the Court of Appeals of the petition for
prohibition, and since said Court did not issue any restraining order,
arraignment was properly had; and (d) reliance on Roberts is misplaced, as
there, accused Roberts and others had not been arraigned and respondent
Judge had ordered the indefinite postponement of the arraignment pending
resolution of their petitions before the Court of Appeals and the Supreme
Court.
We now consider the issues enumerated at the outset of this ponencia.
Plainly, the proceedings below were replete with procedural irregularities which
lead us to conclude that something had gone awry in the Office of the
Provincial Prosecutor of Pampanga resulting in manifest advantage to the
accused, more particularly the YABUTs, and grave prejudice to the State and to
private complainants, herein petitioners.
First, warrants for the arrest of the YABUTs were issued by the MCTC, with no
bail recommended for their temporary liberty. However, for one reason or
another undisclosed in the record, the YABUTs were not arrested; neither did
they surrender. Hence, they were never brought into the custody of the law. Yet,
Asst. Provincial Fiscal Alfonso Reyes, either motu proprio or upon motion of the
YABUTs, conducted a reinvestigation. Since said accused were at large, AlfonsoReyes should not have done so. While it may be true that under the second

paragraph of Section 5, Rule 112 of the Rules of Court, the provincial

prosecutor may disagree with the findings of the judge who conducted the
preliminary investigation, as here, this difference of opinion must be on the
basis of the review of the record and evidence transmitted by the judge. Were
that all she did, as she had no other option under the circumstance, she was
without any other choice but to sustain the MCTC since the YABUTs and all
other accused, except Francisco Yambao, waived the filing of their counteraffidavits. Then, further stretching her magnanimity in favor of the accused,
Alfonso-Reyes allowed the YABUTs to submit their counter-affidavits without
first demanding that they surrender because of the standing warrants of arrest
against them. In short, Alfonso-Reyes allowed the YABUTs to make a mockery
of the law in order that they gain their provisional liberty pending trial and be
charged with the lesser offense of homicide.
Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs
and co-accused "Danny," despite the fact that they were charged with homicide
and they were, at the time, fugitives from justice for having avoided service of
the warrant of arrest issued by the MCTC and having failed to voluntarily
surrender.
Third, Alfonso-Reyes was fully aware of the private prosecution's appeal to the
DOJ from her resolution. She could not have been ignorant of the fact that the
appeal vigorously assailed her finding that there was no qualifying
circumstance attending the killing, and that the private prosecution had
convincing arguments to support the appeal. The subsequent resolution of the
Secretary of Justice confirmed the correctness of the private prosecution's
stand and exposed the blatant errors of Alfonso-Reyes.
Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information
for homicide on 28 February 1996. It is interesting to note that while the
information was dated 29 January 1996, it was approved by the Provincial
Prosecutor only on 27 February 1996. This simply means that the Office of the
Prosecutor was not, initially, in a hurry to file the Information. No undue
prejudice could have been caused to the YABUTs if it were filed even later for
the YABUTs were still at large; in fact, they filed their bonds of P20,000.00 each
only after the filing of the Information. If Alfonso-Flores was extremely generous
to the YABUTs, no compelling reason existed why she could not afford the
offended parties the same courtesy by at least waiting for instructions from the
Secretary of Justice in view of the appeal, if she were unwilling to voluntarily

ask the latter for instructions. Clearly, under the circumstances, the latter
course of action would have been the most prudent thing to do.
Fifth, as if to show further bias in favor of the YABUTs, the Office of the
Provincial Prosecutor of Pampanga did not even bother to motu proprio, inform
the trial court that the private prosecution had appealed from the resolution of
Alfonso-Flores and had sought, with all the vigour it could muster, the filing of
an information for murder, as found by the MCTC and established by the
evidence before it.
Unsatisfied with what had been done so far to accommodate the YABUTs, the
Office of the Provincial Prosecutor did not even have the decency to agree to
defer arraignment despite its continuing knowledge of the pendency of the
appeal. This amounted to defiance of the DOJ's power of control and
supervision over prosecutors, a matter which we shall later elaborate on.
Moreover, in an unprecedented move, the trial prosecutor, Olimpio Datu, had
the temerity, if not arrogance, to announce that "he will no longer allow the
private prosecutor to participate or handle the prosecution of [the] case" simply
because the private prosecution had asked for the inhibition of Judge Roura.
Said prosecutor forgot that since the offended parties here had not waived the
civil action nor expressly reserved their right to institute it separately from the
criminal action, then they had the right to intervene in the criminal case
pursuant to Section 16 of Rule 1l0 of the Rules of Court.
It is undebatable that petitioners had the right to appeal to the DOJ from the
resolution of Alfonso-Flores. The last paragraph of Section 4 of Rule 112 of the
Rules of Court provides:
If upon petition by a proper party, the Secretary of Justice reverses
the resolution of the provincial or city fiscal or chief state
prosecutor, he shall direct the fiscal concerned to file the
corresponding information without conducting another preliminary
investigation or to dismiss or move for the dismissal of the
complaint or information.
It is clear from the above, that the proper party referred to therein could
be either the offended party or the accused.
More importantly, an appeal to the DOJ is an invocation of the Secretary's
power of control over prosecutors. Thus, in Ledesma v. Court of Appeals, 16 we
emphatically held:

Decisions or resolutions of prosecutors are subject to appeal to the

secretary of justice who, under the Revised Administrative
Code, 62 exercises the power of direct control and supervision over
said prosecutors; and who, may thus affirm, nullify, reverse or
modify their rulings.
Sec. 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9,
Chapter 2, Title III of the Code gives the secretary of justice
supervision and control over the Office of the Chief Prosecutor and
the Provincial and City Prosecution Offices. The scope of his power
of supervision and control is delineated in Section 38, paragraph
1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. Supervision and
control shall include authority to act directly whenever
a specific function is entrusted by law or regulation to
a subordinate; direct the performance of duty; restrain
the commission of acts; review, approve, reverse or
modify acts and decisions of subordinate officials or
units; . . . .
Supplementing the aforequoted provisions are Section 3 of R.A.
3783 and Section 37 of Act 4007, which read:
Sec. 3. . . .
The Chief State Prosecutor, the Assistant Chief State
Prosecutors, the Senior State Prosecutors, and the
State Prosecutors shall . . . perform such other duties
as may be assigned to them by the Secretary of Justice
in the interest of public service.
xxx xxx xxx
Sec. 37. The provisions of the existing law to the
contrary notwithstanding, whenever a specific power,
authority, duty, function, or activity is entrusted to a
chief of bureau, office, division or service, the same
shall be understood as also conferred upon the proper
Department Head who shall have authority to act
directly in pursuance thereof, or to review, modify, or

revoke any decision or action of said chief of bureau,

office, division or service.
"Supervision" and "control" of a department head over his
subordinates have been defined in administrative law as follows:
In administrative law, supervision means overseeing or
the power or authority of an officer to see that
subordinate officers perform their duties. If the latter
fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them
perform such duties. Control, on the other hand,
means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer had
done in the performance of his duties and to
substitute the judgment of the former for that of the
latter.
Review as an act of supervision and control by the justice secretary
over the fiscals and prosecutors finds basis in the doctrine of
exhaustion of administrative remedies which holds that mistakes,
abuses or negligence committed in the initial steps of an
administrative activity or by an administrative agency should be
corrected by higher administrative authorities, and not directly by
courts. As a rule, only after administrative remedies are exhausted
may judicial recourse be allowed.
DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended
parties and the accused to appeal from resolutions in preliminary
investigations or reinvestigations, as provided for in Section 1 and Section 4,
respectively. Section 1 thereof provides, thus:
Sec. 1. What May Be Appealed. Only resolutions of the Chief
State Prosecutor/Regional State Prosecutor/Prosecutor or City
Prosecutor dismissing a criminal complaint may be the subject of
an appeal to the Secretary of Justice except as otherwise provided
in Section 4 hereof.
While the section speaks of resolutions dismissing a criminal complaint,
petitioners herein were not barred from appealing from the resolution holding
that only homicide was committed, considering that their complaint was for

murder. By holding that only homicide was committed, the Provincial

Prosecutor's Office of Pampanga effectively "dismissed" the complaint for
murder. Accordingly, petitioners could file an appeal under said Section 1. To
rule otherwise would be to forever bar redress of a valid grievance, especially
where the investigating prosecutor, as in this case, demonstrated what
unquestionably appeared to be unmitigated bias in favor of the accused.
Section 1 is not to be literally applied in the sense that appeals by the offended
parties are allowed only in cases of dismissal of the complaint, otherwise the
last paragraph of Section 4, Rule 112, Rules of Court would be meaningless.
We cannot accept the view of the Office of the Solicitor General and private
respondents that Section 1 of DOJ Department Order No. 223 is the controlling
rule; hence, pursuant to the second paragraph thereof the appeal of petitioners
did not hold the filing of the information. As stated above, Section 4 applies
even to appeals by the respondents or accused. The provision reads:
Sec. 4. Non-appealable cases. Exceptions. No appeal may be
taken from a resolution of the Chief State Prosecutor/Regional
State Prosecutor/Provincial or City Prosecutor finding probable
cause except upon a showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of minifest error or grave
abuse of discretion, no appeal shall be entertained where the
appellant had already been arraigned. If the appellant is arraigned
during the pendency of the appeal, said appeal shall be
dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding
probable cause, however, shall not hold the filing of the
information in court. (emphasis supplied)
The underlined portion indisputably shows that the section refers to appeals by
respondents or accused. So we held in Marcelo v. Court of
Appeals, 63 that nothing in the ruling in Crespo v. Mogul, 64 reiterated
in Roberts v. Court of Appeals, 65forecloses the power of authority of the
Secretary of Justice to review resolutions of his subordinates in criminal cases
despite an information already having been filed in court. The Secretary of
Justice is only enjoined to refrain, as far as practicable, from entertaining a
petition for review or appeal from the action of the prosecutor once a complaint
or information is filed in court. In any case, the grant of a motion to dismiss,
which the prosecution may file after the Secretary of Justice reverses an

appealed resolution, is subject to the discretion of the court. In Roberts we

went further by saying that Crespo could not have foreclosed said power or
authority of the Secretary of Justice "without doing violence to, or repealing,
the last paragraph of Section 4, Rule 112 of the Rules of Court" which is
quoted above.
Indubitably then, there was on the part of the public prosecution, indecent
haste in the filing of the information for homicide, depriving the State and the
offended parties of due process.
As to the second issue, we likewise hold that Judge Roura acted with grave
abuse of discretion when, in his order of 26 March l996, 66 he deferred
resolution on the motion for a hold departure order until "such time that all the
accused who are out on bail are arraigned" and denied the motion to defer
proceedings for the reason that the "private prosecution has not shown any
indication that [the] appeal was given due course by the Secretary of Justice."
Neither rhyme nor reason or even logic, supports the ground for the deferment
of the first motion. Precisely, immediate action thereon was called for as the
accused were out on bail and, perforce, had all the opportunity to leave the
country if they wanted to. To hold that arraignment is a prerequisite to the
issuance of a hold departure order could obviously defeat the purpose of said
order. As to the second motion, Judge Roura was fully aware of the pendency of
petitioner's appeal with the DOJ, which was filed as early as 23 February 1996.
In fact, he must have taken that into consideration when he set arraignment of
the accused only on 12 April 1996, and on that date, after denying petitioners'
motion to reconsider the denial of the motion to defer proceedings, he further
reset arraignment to 3 May 1996 and gave petitioners ten (10) days within
which to file a petition forcertiorari to question his denial of the motion to defer
and of the order denying the reconsideration. In any event, the better part of
wisdom suggested that, at the very least, he should have asked petitioners as
regards the status of the appeal or warned them that if the DOJ would not
decide the appeal within a certain period, then arraignment would proceed.
Petitioners did in fact file the petition with the Court of Appeals on 19 April
1996 and, at the same time, moved to inhibit Judge Roura. These twin moves
prompted Judge Roura to "voluntarily" inhibit himself from the case on 29 April
1996 67 and to transfer the case to the branch presided by public respondent
Judge Villon. The latter received the records of the case on 30 April 1996. From
that time on, however, the offended parties did not receive any better deal.
Acting with deliberate dispatch, Judge Villon issued an order on 3 May 1996

setting arraignment of the accused on 20 May 1996. If Judge Villon only

perused the record of the case with due diligence, as should be done by anyone
who has just taken over a new case, he could not have helped but notice: (a)
the motion to defer further proceedings; (2) the order of Judge Roura giving
petitioners ten days within which to file a petition with the Court of Appeals; (3)
the fact of the filling of such petition in CA-G.R. SP No. 40393; (4) the
resolution of the Court of Appeals directing respondents to comment on the
petition and show cause why the application for a writ of preliminary
injunction should not be granted and deferring resolution of the application for
a temporary restraining order until after the required comment was filed, which
indicated a prima facie showing of merit; (5) the motion to inhibit Judge Roura
precisely because of his prejudgment that the crime committed was merely
homicide; (6) Judge Roura's subsequent inhibition; (7) various pieces of
documentary evidence submitted by petitioners on 30 April 1996 supporting a
charge of murder, not homicide; and (8) most importantly , the pending appeal
with the DOJ.
All the foregoing demanded from any impartial mind, especially that of Judge
Villon, a cautious attitude as these were unmistakable indicia of the probability
of a miscarriage of justice should arraignment be precipitately held. However,
Judge Villon cursorily ignored all this. While it may be true that he was not
bound to await the DOJ's resolution of the appeal, as he had, procedurally
speaking, complete control over the case and any disposition thereof rested on
his sound discretion, 68 his judicial instinct should have led him to peruse the
documents submitted on 30 April 1996 and to initially determine, for his own
enlightenment with serving the ends of justice as the ultimate goal, if indeed
murder was the offense committed; or, he could have directed the private
prosecutor to secure a resolution on the appeal within a specified time. Given
the totality of circumstances, Judge Villon should have heeded our statement
in Marcelo 69 that prudence, if not wisdom, or at least, respect for the authority
of the prosecution agency, dictated that he should have waited for the
resolution of the appeal then pending before the DOJ. All told, Judge Villon
should not have merely acquiesced to the findings of the public prosecutor.
We do not then hesitate to rule that Judge Villon committed grave abuse of
discretion in rushing the arraignment of the YABUTs on the assailed
information for homicide. Again, the State and the offended parties were
deprived of due process.

Up to the level then of Judge Villon, two pillars of the criminal justice system
failed in this case to function in a manner consistent with the principle of
accountability inherent in the public trust character of a public office. Judges
Roura and Villon and prosecutors Alfonso-Flores and Datu need be reminded
that it is in the public interest that every crime should be punished 70 and
judges and prosecutors play a crucial role in this regard for theirs is the
delicate duty to see justice done, i.e., not to allow the guilty to escape nor the
innocent to
suffer. 71
Prosecutors must never forget that, in the language of Suarez v. Platon, 72 they
are the representatives not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win every case but that justice be done. As
such, they are in a peculiar and every definite sense the servants of the law,
whose two-fold aim is that guilt shall not escape or innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a
crime, and are expected to prosecute the public action with such zeal and vigor
as if they were the ones personally aggrieved, but at all times cautious that
they refrain from improper methods designed to secure a wrongful
conviction. 73 With them lies the duty to lay before the court the pertinent facts
at the judge's disposal with strict attention to punctilios, thereby clarifying
contradictions and sealing all gaps in the evidence, with a view to erasing all
doubt from the court's mind as to the accused's innocence or guilt.
The judge, on the other hand, "should always be imbued with a high sense of
duty and responsibility in the discharge of his obligation to promptly and
properly administer justice." 74 He must view himself as a priest, for the
administration of justice is akin to a religious crusade. Thus, exerting the same
devotion as a priest "in the performance of the most sacred ceremonies of
religious liturgy," the judge must render service with impartiality
commensurate with the public trust and confidence reposed in
him. 75 Although the determination of a criminal case before a judge lies within
his exclusive jurisdiction and competence, 76 his discretion is not unfettered,
but rather must be exercised within reasonable confines. 77 The judge's action
must not impair the substantial rights of the accused, nor the right of the State
and offended party to due process of law. 78

Indeed, for justice to prevail, the scales must balance; justice is not to be
dispensed for the accused alone. The interests of society and the offended
parties which have been wronged must be equally considered. Verily, a verdict
of conviction is not necessarily a denial of justice; and an acquittal is not
necessarily a triumph of justice, for, to the society offended and the party
wronged, it could also mean injustice. 79 Justice then must be rendered evenhandedly to both the accused, on one hand, and the State and offended party,
on the other.
In this case, the abuse of discretion on the part of the public prosecution and
Judges Roura and Villon was gross, grave and palpable, denying, the State and
the offended parties their day in court, or in a constitutional sense,due
process. As to said judges, such amounted to lack or excess of jurisdiction, or
that their court was ousted of the jurisdiction in respect thereto, thereby
nullifying as having been done without jurisdiction, the denial of the motion to
defer further hearings, the denial of the motion to reconsider such denial, the
arraignment of the YABUTs and their plea of not guilty.
These lapses by both the judges and prosecutors concerned cannot be taken
lightly. We must remedy the situation before the onset of any irreversible
effects. We thus have no other recourse, for as Chief Justice Claudio Teehankee
pronounced in Galman v. Sandiganbayan: 80
The Supreme Court cannot permit such a sham trial and verdict
and travesty of justice to stand unrectified. The courts of the land
under its aegis are courts of law and justice and equity. They
would have no reason to exist if they were allowed to be used as
mere tools of injustice, deception and duplicity to subvert and
suppress the truth, instead of repositories of judicial power whose
judges are sworn and committed to render impartial justice to all
alike who seek the enforcement or protection of a right or the
prevention of redress of a wrong, without fear or favor and removed
from the pressures of politics and prejudice.
We remind all members of the pillars of the criminal justice system that
theirs is not a mere ministerial task to process each accused in and out
of prison, but a noble duty to preserve our democratic society under a
rule of law.

Anent the third issue, it was certainly grave error for the DOJ to reconsider its
7 June 1996 resolution, holding that murder was committed and directing the
Provincial Prosecutor to accordingly amend the information, solely on the basis
of the information that the YABUTs had already been arraigned. In so doing,
the DOJ relinquished its power of control and supervision over the Provincial
Prosecutor and the Assistant Provincial Prosecutors of Pampanga; and meekly
surrendered to the latter's inappropriate conductor even hostile attitude, which
amounted to neglect of duty or conduct prejudicial to the best interest of the
service, as well as to the undue haste of Judge Roura and Villon in respect of
the arraignment of the YABUTs. The sins of omission or commission of said
prosecutors and judges resulted, in light of the finding of the DOJ that the
crime committed was murder, in unwarranted benefit to the YABUTs and gross
prejudice to the State and the offended parties. The DOJ should have
courageously exercised its power of control by taking bolder steps to rectify the
shocking "mistakes" so far committed and, in the final analysis, to prevent
further injustice and fully serve the ends of justice. The DOJ could have, even
if belatedly, joined cause with petitioners to set aside arraignment. Further, in
the exercise of its disciplinary powers over its personnel, the DOJ could have
directed the public prosecutors concerned to show cause why no disciplinary
action should be taken against them for neglect of duty or conduct prejudicial
to the best interest of the service in not, inter alia, even asking the trial court to
defer arraignment in view of the pendency of the appeal, informing the DOJ,
from time to time, of the status of the case, and, insofar as prosecutor Datu
was concerned, in disallowing the private prosecutor from further participating
in the case.
Finally, the DOJ should have further inquired into the vicissitudes of the case
below to determine the regularity of arraignment, considering that the appeal
was received by the DOJ as early as 23 February 1996.
We then rule that the equally hasty motu proprio "reconsideration" of the 7
June 1996 resolution of the DOJ was attended with grave abuse of discretion.
It is settled that when the State is deprived of due process in a criminal case by
reason of grave abuse of discretion on the part of the trial court, the acquittal
of the accused 81 or the dismissal of the case 82 is void, hence double jeopardy
cannot be invoked by the accused. If this is so in those cases, so must it be
where the arraignment and plea of not guilty are void, as in this case as above
discussed.

WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura

of 26 March 1996 denying the Motion to Defer Proceeding and of 12 April 1996
denying the motion to reconsider the denial of said Motion to Defer
Proceedings, and the orders of respondent Judge Sesinando Villon of 3 May
1996 resetting the arraignment to 20 May 1998 and of 25 October 1996
denying the Motion to Set Aside Arraignment in Criminal Case No. 96-1667(M)
are declared VOID and SET ASIDE. The arraignment of private respondents
Mayor Santiago Yabut, Servillano Yabut and Martin Yabut and their separate
pleas of not guilty are likewise declared VOID and SET ASIDE. Furthermore,
the order of public respondent Secretary of Justice of 1 July 1996 is SET
ASIDE and his order of 7 June 1996 REINSTATED.
The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply
with the order (letter) of the Secretary of Justice of 7 June 1996 by forthwith
filing with the trial court the amended information for murder. Thereafter the
trial court shall proceed in said case with all reasonable dispatch.
No pronouncement as to costs.
SO ORDERED.