Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-22536 August 31, 1967

DOMINGO V. AUSTRIA, petitioner,

vs.
HON. ANTONIO C. MASAQUEL, in his capacity as the Presiding Judge of Branch II of the Court of First
Instance of Pangasinan, respondent.

Primicias, Del Castillo and Macaraeg for petitioner.

Antonio C. Masaquel for respondent.

ZALDIVAR, J.:

This is a petition for a writ of certiorari to annul or set aside the order of respondent Judge Antonio Masaquel, dated
February 10, 1964, in Civil Case No. 13258 of the Court of First Instance of Pangasinan, declaring petitioner
Domingo V. Austria guilty of contempt of court and imposing upon him a fine of P50.00.

The facts that gave rise to the incident in question are not disputed. Petitioner was one of the plaintiffs in the above-
mentioned Civil Case No. 132581 against Pedro Bravo for the recovery of three parcels of land — one parcel being
located at Bayambang and two parcels in San Carlos, in the province of Pangasinan. On April 19, 1963, after trial,
respondent Judge rendered a decision declaring the plaintiffs the owners of the three parcels of land in question and
ordering the defendant to vacate the lands and pay the plaintiffs damages only with respect to the land located at
Bayambang. The plaintiffs filed a motion for the immediate execution of the judgment — which motion was granted
by respondent Judge on May 31, 1963 — and, upon the plaintiffs' having posted a surety bond in the sum of
P2,000.00, the sheriff placed them in possession of the lands located at San Carlos.

On May 23, 1963, Atty. Mariano C. Sicat, a former assistant or associate of respondent Judge when the latter was
still in the practice of law before his appointment to the bench, entered his appearance as the new counsel for
defendant Pedro Bravo, vice Attorney Antonio Resngit. On June 14, 1963, the defendant, through Atty. Sicat, filed a
supersedeas bond to stay the execution of the judgment, and on June 20, 1963 respondent Judge granted the stay
of execution, over the objection of plaintiffs, and ordered the sheriff to restore the possession of the lands in San
Carlos to the defendant. The petitioner likewise had asked for the appointment of a receiver over the parcel of land
located at Bayambang, which prayer was granted by respondent Judge on July 8, 1963; but upon the filing of a
bond by the defendant for the non-appointment of a receiver, the order receivership was set aside. On August 24,
1963, pending the approval of the defendant's amended record on appeal, Atty. Sicat filed a motion for new trial and
to set aside the judgment and, over the vigorous objection of plaintiffs, the respondent Judge granted the said
motion on November 7, 1963. The hearing on the retrial was finally set for February 10, 1964.

Before the opening of the court's session in the morning of February 10, 1964, Atty. Daniel Macaraeg, counsel for
petitioner and his co-plaintiffs, saw respondent Judge in his chamber and verbally transmitted to him the request of
petitioner that he (the Judge) inhibit himself from further hearing the case upon the ground that the new counsel for
the defendant, Atty. Mariano C. Sikat, was his former associate. The respondent Judge, however, rejected the
request because, according to him, the reason for the request of his inhibition is not one of the grounds for
disqualification of a judge provided for in the Rules of Court. Thereafter, when the case was called for hearing in
open court, the following transpired, as shown by the transcript of the stenographic notes taken during said hearing: 2

APPEARANCE:

ATTY. DANIEL C. MACARAEG:

appeared in behalf of plaintiffs. (After the case was called)

COURT:

Your client is here?

ATTY. MACARAEG:

Yes, Your Honor.

COURT:

Where is he?

ATTY. MACARAEG:

He is here, Your Honor.

COURT:

What is your name?

PLAINTIFF:

Domingo Austria, sir.

COURT:

You are one of the plaintiffs in this case?

DOMINGO AUSTRIA:

Yes, sir.

COURT:

Atty. Macaraeg approached me in chambers requesting me to disqualify myself in hearing this case. Did you
authorize Atty. Macaraeg to approach me verbally to disqualify myself from hearing this case because the
lawyer of the other party was my former assistant?

DOMINGO AUSTRIA:

Yes, sir.

COURT:

Is that your reason why you requested Atty. Macaraeg to approach me, requesting me to disqualify myself
simply because the lawyer of the other party was my assistant?

DOMINGO AUSTRIA:

Yes, sir.

COURT:

All right. Do you doubt the integrity of the presiding Judge to decide this case fairly and impartially because
the lawyer of the other party was my former assistant? Do you doubt? Just answer the question?
 DOMINGO AUSTRIA:

Yes, sir.

COURT:

The Court hereby finds you guilty of contempt of Court and you are hereby ordered to pay a fine of P50.00.

ATTY. MACARAEG:

With due indulgence of this Honorable Court — I have learned, after I have conferred with you in chambers,
another ground of the plaintiffs for their requesting me to ask for the disqualification of Your Honor in this
case, and this ground consists of the rampant rumor coming from the defendant Pedro Bravo himself that he
is boasting in San Carlos that because he has a new lawyer, that surely he is going to win this case.

COURT:

Why did you not wait until the case is finally decided and find out if that is true or not?

ATTY. MACARAEG:

And maybe, that is why the plaintiffs requested me to approach Your Honor because of that rampant rumor
that Pedro Bravo is spreading.

COURT:

You mean to say because of that rumor, you are going to doubt my integrity?

ATTY. MACARAEG:

As for me, I entertain no doubt, Your Honor.

COURT:

Your client expressed openly in Court his doubts on the integrity of the Court simply based on rumors and
that is a ground for contempt of court, if only to maintain the faith of the people in the courts.

ATTY. MACARAEG:

Taking into consideration that these plaintiffs are laymen and we cannot expect from them the thinking of a
lawyer, I am most respectfully praying that the Order of this Court be reconsidered.

COURT:

Denied. Your client should pay a fine of P50.00. We will hear this case this afternoon.

ATTY. MACARAEG:

Yes, Your Honor.

The respondent Judge forthwith dictated the following order: 3

Before this Court opened its sessions this morning, Atty. Daniel C. Macaraeg, counsel for the plaintiffs,
approached the presiding Judge of this Court in his chambers and manifested the desire of his clients for the
Judge to disqualify himself from trying the above-entitled case for the reason that counsel for the defendant,
 Atty. Marciano C. Sicat was formerly an associate of the Judge of this Court while he was still engaged in
the practice of law. To this manifestation of Atty. Macaraeg, the Presiding Judge informed the latter that
such fact alone does not in itself constitute a legal ground to disqualify the Presiding Judge of this Court,
from trying this case.

When the above-entitled case was called for hearing, the Presiding Judge called on one of the plaintiffs who
was present, namely, Domingo Austria, and inquired from the latter if it was true that he asked his lawyer
Atty. Macaraeg to approach the Judge in chambers and to ask him to disqualify himself from trying this case
because defendant's lawyer, Atty. Sicat was formerly associated with the said Judge. To this query Domingo
Austria answered in the affirmative. When he was also asked as to whether the said Domingo Austria has
lost faith in the sense of fairness and justice of the Presiding Judge of this Court simply because of his
former association with the defendant's lawyer, said Domingo Austria likewise answered in the affirmative.

The Court considers the actuation of the plaintiff Domingo Austria, in the premises, as offensive, insulting
and a reflection on the integrity and honesty of the Presiding Judge of this Court and shows his lack of
respect to the Court. The said Domingo Austria is not justified and has no reason to entertain doubts in the
fairness and integrity of the Presiding Judge of this Court, simply because of the latter's former association
with defendant's counsel. For this reason and in order to maintain the people's faith and respect in their
courts — the last bulwark in our democratic institutions — the Presiding Judge declared said plaintiff
Domingo Austria in direct contempt of court and he was ordered to pay a fine of P50.00.

The Court found from the manifestation of plaintiffs' counsel Atty. Macaraeg that the basis of the statement,
of Domingo Austria that he has lost his faith in the Presiding Judge of this Court is the rumors being
circulated by the defendant Pedro Bravo that he will surely win in the present case because of his new
lawyer, Atty. Marciano C. Sicat. The Court believes that rumors of the sort do not serve as a sufficient basis
or justification for the plaintiff Domingo Austria to insinuate bias and partiality, on the part of the Court and to
express openly his loss of faith and confidence in the integrity, fairness and capability of the Presiding Judge
of this Court to perform his sworn duty of upholding and administering justice, without fear or favor, and by
reason of which this Court denied the verbal motion to reconsider filed by counsel for the plaintiff Domingo
Austria, finding him guilty of contempt of court and ordering him to pay a fine of P50.00.

SO ORDERED.

Given in open Court this 10th day of February, 1964, at Lingayen, Pangasinan.

Petitioner Domingo Austria, accordingly, paid the fine of P50.00 under protest. Having been punished summarily for
direct contempt of court, and the remedy of appeal not being available to him, petitioner filed the instant petition
for certiorari before this Court.

It is the position of the petitioner that under the facts and circumstances attendant to the hearing of the Civil Case
No. 13250 on February 10, 1063, he had not committed an act of contempt against the court and the respondent
Judge had acted in excess of his jurisdiction with grave abuse of discretion when he declared petitioner in direct
contempt of court and imposed on him the fine of P50.00 as a penalty.

After a careful study of the record, We find merit in this petition.

The respondent Judge declared the petitioner in direct contempt of court. Our task, therefore, is to determine
whether or not the petitioner was guilty of misbehavior in the presence of or so near a court or judge, as to obstruct
or interrupt the proceedings before the same, or had committed an act of disrespect toward the court or judge.4

The respondent Judge considered the actuation of the petitioner, in the premises, as offensive, insulting, and a
reflection on his integrity and honesty and a showing of lack of respect to the court. The respondent Judge
considered that the petitioner was not justified and had no reason to entertain doubts in his fairness and integrity
simply because the defendant's counsel was his former associate. 1äwp hï1. ñët

We do not agree with the respondent Judge. It is our considered view that when the petitioner requested respondent
Judge to inhibit himself from further trying the case upon the ground that the counsel for the opposite party was the
former associate of the respondent Judge, petitioner did so because he was impelled by a justifiable apprehension
which can occur in the mind of a litigant who sees what seems to be an advantage on the part of his adversary; and
that the petitioner made his request in a manner that was not disrespectful, much less insulting or offensive to the
respondent Judge or to the court.

We are in accord with the statement of respondent Judge in his memorandum that the circumstance invoked by
petitioner in asking him to inhibit himself from further trying the case — that Atty. Sicat was his former associate in
his practice of law — is not one of the grounds enumerated in the first paragraph of Section 1, Rule 137 of the new
Rules of Court for disqualifying a judge. While it is true that respondent Judge may not be compelled to disqualify
himself, the fact that Atty. Sicat, admittedly his former associate, was counsel for a party in the case being tried by
him, may constitute a just or valid reason for him to voluntarily inhibit himself from hearing the case on a retrial, if he
so decides, pursuant to the provision of the second paragraph of Section 1 of the said Rule 137.5

The apprehension of petitioner regarding the probable bias of respondent Judge does not appear to be groundless
or entirely devoid of reason. The respondent Judge had decided the case in favor of petitioner and his co-plaintiffs,
and that upon plaintiffs' timely motion and filing of bond they were already placed in possession of the lands in
question pending appeal. It was when Atty. Sicat took over as new counsel for defendant that the latter was given
back the properties, upon a motion to stay the execution of the judgment which was filed by said counsel and was
granted by respondent Judge over the opposition of petitioner's counsel. Again, when the same counsel for
defendant filed a motion for a new trial, said motion was granted by respondent Judge in spite of the vigorous
objection of counsel for the petitioner and his co-plaintiffs. And then the petitioner became aware of the fact that his
adversary, the defendant Pedro Bravo, had been boasting in San Carlos that he was sure to win his case because
of his new lawyer.

We believe that the petitioner — the layman that he is — did not take a belligerent or arrogant attitude toward
respondent Judge. What he did was to request his lawyer, Atty. Macaraeg, to approach respondent Judge in his
chamber and suggest to him to refrain from hearing the case on the new trial, precisely in order that respondent
Judge might not be embarrassed or exposed to public odium. There is nothing in the record which shows that when
respondent Judge refused to disqualify himself, the petitioner insisted in asking for his disqualification. If the request
of petitioner for respondent Judge to disqualify himself came to the knowledge of the public it was because
respondent Judge himself brought up the matter in open court.

While We consider it improper for a litigant or counsel to see a judge in chambers and talk to him about a matter
related to the case pending in the court of said judge, in the case now before Us We do not consider it as an act of
contempt of court when petitioner asked his counsel to see respondent Judge in his chamber and request him to
disqualify himself upon a ground which respondent Judge might consider just or valid. It is one thing to act not in
accordance with the rules, and another thing to act in a manner which would amount to a disrespect or an affront to
the dignity of the court or judge. We believe that the circumstances that led respondent Judge to declare petitioner
in direct contempt of court do not indicate any deliberate design on the part of petitioner to disrespect respondent
Judge or to cast aspersion against his integrity as a judge. On the contrary, it may be said that petitioner wanted to
avoid cause for any one to doubt the integrity of respondent Judge. This is so because when a party litigant desires
or suggests the voluntary disqualification of a judge, it is understood, without saying it in so many words, that said
litigant — having knowledge of the past or present relationship of the judge with the other party or counsel — feels
that no matter how upright the judge is there is peril of his being unconsciously swayed by his former connection
and he may unwittingly render a biased or unfair decision. Hence, while it may be conceded that in requesting the
disqualification of a judge by reason of his relation with a party or counsel there is some implication of the probability
of his being partial to one side, the request can not constitute contempt of court if done honestly and in a respectful
manner, as was done by petitioner in the present case. Perhaps the fault of petitioner, if at all, is his having asked
his counsel to make the request to respondent Judge inside the latter's chamber.

The following observation of this Court, speaking through Mr. Justice Dizon, is relevant to the question before Us:

Petitioner invoking the provisions of section 1, Rule 126 of the Rules of Court, argues that the case of
respondent judge does not fall under any one of the grounds for the disqualification of judicial officers stated
therein. Assuming arguendo that a literal interpretation of the legal provision relied upon justifies petitioner's
contention to a certain degree, it should not be forgotten that, in construing and applying said legal provision,
we cannot disregard its true intention nor the real ground for the disqualification of a judge or judicial officer,
which is the impossibility of rendering an impartial judgment upon the matter before him. It has been said, in
 fact, that due process of law requires a hearing before an impartial and disinterested tribunal, and that every
litigant is entitled to nothing less than the cold neutrality of an impartial judge (30 Am. Jur. p. 767). Moreover,
second only to the duty of rendering a just decision, is the duty of doing it in a manner that will not arouse
any suspicion as to its fairness and the integrity of the Judge. Consequently, we take it to be the true
intention of the law — stated in general terms — that no judge shall preside in a case in which he is not
wholly free, disinterested, impartial and independent (30 Am. Jur. supra) . . . . 6 (Emphasis supplied).

It is in line with the above-quoted observation that this Court, in amending the Rules of Court, added the second
paragraph under Section 1 of Rule 137, which provides that a judge in the exercise of his sound discretion may
disqualify himself from sitting in a case for just or valid grounds other than those specifically mentioned in the first
paragraph of said section.7 "The courts should administer justice free from suspicion or bias and prejudice;
otherwise, parties litigants might lose confidence in the judiciary and destroy its nobleness and decorum." 8

Respondent Judge declared petitioner in contempt of court after the latter answered "Yes, sir" to this question of the
judge: "Do you doubt the integrity of the presiding Judge to decide this case fairly and impartially because the
lawyer of the other party was my former assistant? Do you doubt? Just answer the question?" We believe that
petitioner had not committed an act amounting to contempt of court when he made that answer. The petitioner had
not misbehaved in court, or in the presence of respondent Judge, as to obstruct or interrupt the proceedings. Neither
did the petitioner act in a manner that was disrespectful to respondent Judge. When petitioner answered "Yes, sir"
to the question asked by respondent Judge, petitioner simply expressed his sincere feeling under the
circumstances. In order that a person may be summarily punished for direct contempt of court, it must appear that
his behavior or his utterance tends to obstruct the proceedings in court, or constitutes an affront to the dignity of the
court. As stated by this Court, "Contempt of court presupposes a contumacious attitude, a flouting or arrogant
belligerence, a defiance of the court . . . ." 9

We commend the zeal shown by respondent Judge in his effort to protect his own integrity and the dignity of the
court. We are constrained to say, however, that he had gone a little farther than what was necessary under the
circumstances. We are inclined to believe that respondent Judge felt offended when petitioner answered "Yes, sir"
to the question adverted to in the preceding paragraph. But the petitioner was simply truthful and candid to the court
when he gave that answer. It would have been unfair to respondent Judge had petitioner answered "No, sir,"
because then he would not be sincere with the court, and he would be inconsistent with the request that he made
through his counsel for respondent Judge to inhibit himself from further hearing the case. When respondent Judge
asked that question, he necessarily expected a truthful answer from petitioner, and indeed petitioner gave him the
truthful answer. We are not persuaded that in so answering petitioner meant to be disrespectful, offensive or
insulting to respondent Judge. Nor do We consider that in so answering petitioner meant to cast reflection on the
integrity and honesty of respondent Judge. We believe that in so answering the petitioner was simply manifesting
the misgiving of an ordinary layman about the outcome of his case that is going to be tried by a judge who has been
closely associated with the counsel for his adversary. The petitioner would never have expressed that misgiving of
his had respondent Judge not asked him in open court a question that evoked that answer. A judge can not prevent
any person — even a litigant or counsel in a case before him — to entertain in his mind an opinion about him as a
judge. Certainly, any person is entitled to his opinion about a judge, whether that opinion is flattering to the judge, or
not. It would be different if a person would deliberately and maliciously express an adverse opinion about a judge,
without reason, but simply to malign and discredit the judge. In the case now before Us We believe that petitioner
did not mean to malign or discredit respondent Judge in answering as he did. It can be said that petitioner was
simply moved by a desire to protect his interests in the case pending before the court, presided by respondent
Judge. A citizen of this Republic is entitled to expect that our courts of justice are presided by judges who are free
from bias and prejudice — and it should not be made a count against the citizen if he so expresses himself truthfully,
sincerely, and respectfully. A judge, as a public servant, should not be so thin-skinned or sensitive as to feel hurt or
offended if a citizen expresses an honest opinion about him which may not altogether be flattering to him. 10 After all,
what matters is that a judge performs his duties in accordance with the dictates of his conscience and the light that
God has given him. A judge should never allow himself to be moved by pride, prejudice, passion, or pettiness in the
performance of his duties. And a judge should always bear in mind that the power of the court to punish for
contempt should be exercised for purposes that are impersonal, because that power is intended as a safeguard not
for the judges as persons but for the functions that they exercise.

It is worth mentioning here that numerous cases there have been where judges, and even members of this Court,
were asked to inhibit themselves from trying, or from participating in the consideration of, a case, but scarcely were
the movants punished for contempt even if the grounds upon which they based their motions for disqualification are
not among those provided in the rules. It is only when there was direct imputation of bias or prejudice, or a stubborn
insistence to disqualify the judge, done in a malicious, arrogant, belligerent and disrespectful manner, that movants
were held in contempt of court. 11 And this liberal attitude of the courts is in keeping with the doctrine that "The
power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle.
Only occasionally should the court invoke its inherent power in order to retain that respect without which the
administration of justice must falter or fail." 12 The power to punish for contempt, being drastic and extraordinary in
its nature, should not be resorted to unless necessary in the interest of justice. 13

Wherefore, the order of respondent Judge dated February 10, 1964, in Civil Case No. 13259 of the Court of First
Instance of Pangasinan, declaring petitioner in direct contempt of court and ordering him to pay a fine of P50.00, is
hereby annulled and set aside; and it is ordered that the sum of P50.00, paid under protest by petitioner as a fine,
be refunded to him. No costs. It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro, Angeles and Fernando, JJ.,
concur.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

A.M. No. MTJ-95-1035 June 21, 1995

EMETERIO GALLO through Counsel Atty. Francisco C. Aurillo, complainant,

vs.
JUDGE JOSE CORDERO, MTC, Babatñgon, Leyte, respondent.

MENDOZA, J.:

This is a sworn complaint dated September 8, 1994 of Emeterio Gallo, charging Judge Jose Cordero of the
Municipal Trial Court of Babatñgon, Leyte with non-feasance, manifest bias, gross ignorance of the law, and graft
and rank favoritism.

The complaint is made in connection with Criminal Case No. 2194 entitled "People v. Cristuto Barreta, Alberto
Macabata, Danilo Morillo, and Rodolfo Villanueva," which complainant filed in respondent judge's court on August
23, 1994 for violation of P.D.No. 772, otherwise known as the Anti-Squatting Law. The criminal complaint alleged:

That several years ago, at Barangay Bagong Silang, municipality of Babatñgon,

Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, all taking advantage of the absence or tolerance of the land
owners, did then and there, succeeded in occupying and possessing certain portions
of the property of the latter against their will for residential and small farming
purposes, and have refused to vacate the property despite demands for them to do
so.

CONTRARY TO LAW.

On August 26, 1994, respondent issued a subpoena1 to complainant requiring him to appear and to testify regarding
his affidavit and to bring with him documents attesting to his ownership of the land. Complainant appeared as
directed on August 30, 1994 in respondent's office. According to complainant's affidavit dated September 7,
1994,2 the following transpired:

That on August 30, 1994 I saw Honorable Judge Jose Cordero in his office, having been summoned
to appear before him on that day;

That he then asked me if I have papers of ownership of land, such as tax declaration, and I said yes
but did not bring them as this was no trial; and besides, he already had the records submitted by the
chief of police;

That since he insisted on seeing our tax declaration, with his permission I went to the office of the
municipal assessor, secured a certified copy of the tax declaration of land in Bagong Silang, and
gave it to him; and noting the area to be 21 hectares the Judge commented that ours is quite a big
tract of land;

That when I asked the Judge if the accused have already been arrested, he said No; so I said, what
about this case of ours? And he asked what I really wanted. When I said I want them ejected from
our land the Judge said: "No, you cannot eject tenants now under the law." I countered that the four
accused are not tenants, but the Judge said, "Even then, nobody can eject them.
 That disappointed at his answers which clearly were biased for the accused, I asked permission to
leave, which was granted. But he added that I should see him again on Sept. 14, the day before trial
which he set for Sept. 15; . . . .

The following day, according to complainant, his son Roger Gallo went to respondent's office to deliver his letter in
which he inquired from the judge whether he had already issued a warrant of arrest against the accused; that upon
entering the office, Roger saw respondent conversing with the accused in the criminal case; 3 that an aide of
respondent received the letter and opened it; that respondent did not however say anything nor reply to
complainant's letter; that when Roger left the office, respondent judge and the four accused continued their
conversation.4

Complainant charges that (a) in violation of art. 207 (malicious delay in the administration of justice) and art. 208
(negligence and tolerance in the prosecution of crimes) of the Revised Penal Code respondent judge refused to
order the arrest of the accused in Criminal Case No. 2194; (b) that respondent privately conferred with the accused
in his office on August 31, 1994 which "logically and naturally arouses suspicion of graft and rank favoritism;" and (c)
that he acted with bias and ignorance of the law in telling complainant, "You cannot eject tenants now under the
law," and that even if the accused were not tenants, "nobody can eject them." Complainant Gallo prays that (1)
respondent be preventively suspended or ordered to inhibit himself from hearing the case and that another judge be
assigned to handle the case and (2) after due hearing, respondent be dismissed from the service.

In his comment, respondent alleges that he did not order the arrest of the accused for the following reasons: (1) the
complaint charges no offense under P.D. No. 772 because of "the absence [of] recital in the body of [the] complaint
that the property occupied possessed is within the urban communities" per the ruling in People v. Echavez,5 that the
crime of squatting applies only to urban communities,6 (2) the complaint is defective because of its failure to state
the name of the offended party and the date and time of the commission of
the offense; (3) respondent acted in compliance with Administrative Circular No. 8-92 which "reiterates to all trial
court judges the need for a careful consideration of the proper application of the Comprehensive Agrarian Reform
Law (RA 6657) to avoid conflict of jurisdiction with the Department of Agrarian Reform Adjudication Boards," and (4)
he thought that complainant Gallo was merely pressuring the accused to vacate the property through the filing of a
criminal case against them.

Respondent also contends that he cannot be liable under art. 208 of the Revised Penal Code, because this
provision applies to the failure of public prosecutors to prosecute for law violations.

Respondent denied uttering the statements attributed to him allegedly showing that he had prejudged the case, the
truth being that he merely
asked complainant certain questions to ascertain compliance with Rule 110 §§ 6 and 11 7 of the Revised Rules on
Criminal Procedure.

As for his alleged "private conference" with the accused, respondent claims that he merely tried to advise them of
their right to a counsel de oficio in case they could not afford to hire a lawyer.

With regard to complainant's demand for his inhibition, respondent alleges that there was no basis for complainant
to say that he could not expect justice from him (respondent judge) because the case had just been set for the
arraignment of the accused.

To be sure, Criminal Case No. 2194 was filed invoking the original and exclusive jurisdiction of respondent judge's
court, considering that under P.D. No. 772 the offense charged is punishable by imprisonment ranging from 6
months to 1 year or a fine of not less than P1,000.00 nor more than P5,000.00.8 Hence, in accordance with Rule
112, §9(b), in relation to §3(a) thereof, respondent's job was to determine at the outset if there was sufficient ground
to hold the accused for trial, on the basis of the complaint and affidavits submitted. If there was no sufficient ground
to hold the accused for trial, the judge should dismiss the complaint or information, otherwise, he should issue a
warrant of arrest after personally examining the complainant and his witnesses in writing and under oath in the form
of searching questions and answers.

Apparently, respondent judge found sufficient ground to hold the accused in the criminal case for trial. That is
why subpoenas were issued to the complainant and the accused. In the case of the complainant,
the subpoena required him to testify and bring with him the papers showing his title to the land. But respondent
judge did not examine him with a view to the issuance of a warrant of arrest. Instead, as he now says in his
comment, he subpoenaed complainant only to determine the sufficiency of the complaint. Yet, respondent likewise
required the accused to present their evidence the next day, August 31, 1994.

It would thus appear that respondent was confused about what to do. He says in his comment that he found the
criminal complaint to be insufficient because it does not state the time of commission of the offense and the name of
the offended party. He also contends that it does not charge an offense because in accordance with the ruling
in People v. Echavez,9 the offense punished under P.D. No. 772 is committed only in urban communities, although
in Jumawan v. Eviota 10 we overruled People v. Echavez and held that what is punished by the law is squatting on
land which is used for residential, commercial or other purposes. Be that as it may, however, what respondent
should have done was to dismiss the criminal case. The fact, however, is that he did not dismiss the complaint;
neither did he, on the other hand, order the arrest of the accused in that case.

Respondent judge also opened himself to charges of partiality and bias by meeting privately with the four accused.
He says that he merely wanted to apprise them of their constitutional right. Whatever his purpose was, it was
improper for respondent judge to meet them without the presence of complainant. As already stated,
the subpoena required the accused to appear in court on August 31, 1994 to give their testimony. But no hearing
was set on that date. In fact complainant's son, Roger, merely chanced on the accused in the office of the judge on
August 31, 1994 because he had been sent by his father to deliver the latter's letter inquiring whether the judge had
yet issued a warrant for the arrest of the accused.

Thus, respondent judge not only has shown gross ignorance of law and procedure but has also failed to live up to
the norm that "judges should not only be impartial but should also appear impartial." 11 He thus violated Canon 2 of
the Code of Judicial Conduct which provides that "a judge should avoid impropriety and the appearance of
impropriety in all activities." In the words of Rule 2.01 of that Canon, "A judge should so behave at all times as to
promote public confidence in the integrity and impartiality of the judiciary.

Respondent judge was compulsorily retired on March 11, 1995, after reaching the age of 70. This fact, however,
does not render this case moot and academic. As held in Zarate v. Judge Romanillos: 12

[T]he jurisdiction that was ours at the time of the filing of the administrative complaint
was not lost by the mere fact that the respondent public official had ceased in office
during the pendency of his case. The Court retains its jurisdiction either to pronounce
the respondent official innocent of the charges or declare him guilty thereof. A
contrary rule would be fraught with injustices and pregnant with dreadful and
dangerous implications. . . . If innocent, respondent official merits vindication of his
name and integrity as he leaves the government which he has served well and
faithfully; if guilty, he deserves to receive the corresponding censure and a penalty
proper and imposable under the situation.

ACCORDINGLY, a FINE of P10,000.00 is imposed on respondent Judge Jose Cordero, the same to be deducted
from whatever retirement benefits he may be entitled to receive from the government.

SO ORDERED.

Narvasa, C.J., Regalado, and Puno, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 75209 September 30, 1987

NESTLE PHILIPPINES, INC., petitioner,

vs.
HON. AUGUSTO S. SANCHEZ, MINISTER OF LABOR AND EMPLOYMENT and THE UNION OF FILIPRO
EMPLOYEES, respondents.

No. 78791 September 30, 1987

KIMBERLY INDEPENDENT LABOR UNION FOR SOLIDARITY, ACTIVISM AND NATIONALISM-

OLALIA, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, MANUEL AGUILAR, MA. ESTRELLA ALDAS, CAPT. REY L.
LANADA, COL. VIVENCIO MANAIG and KIMBERLY-CLARK PHILIPPINES, INC., respondents.

RESOLUTION

PER CURIAM:

During the period July 8-10. 1987, respondent in G.R. No. 75029, Union of Filipro Employees, and petitioner in G.R.
No. 78791, Kimberly Independent Labor Union for Solidarity, Activism and Nationalism-Olalia intensified the
intermittent pickets they had been conducting since June 17, 1987 in front of the Padre Faura gate of the Supreme
Court building. They set up pickets' quarters on the pavement in front of the Supreme Court building, at times
obstructing access to and egress from the Court's premises and offices of justices, officials and employees. They
constructed provisional shelters along the sidewalks, set up a kitchen and littered the place with food containers and
trash in utter disregard of proper hygiene and sanitation. They waved their red streamers and placards with slogans,
and took turns haranguing the court all day long with the use of loud speakers.

These acts were done even after their leaders had been received by Justices Pedro L. Yap and Marcelo B. Fernan
as Chairmen of the Divisions where their cases are pending, and Atty. Jose C. Espinas, counsel of the Union of
Filipro Employees, had been called in order that the pickets might be informed that the demonstration must cease
immediately for the same constitutes direct contempt of court and that the Court would not entertain their petitions
for as long as the pickets were maintained. Thus, on July 10, 1987, the Court en banc issued a resolution giving the
said unions the opportunity to withdraw graciously and requiring Messrs. Tony Avelino. Lito Payabyab, Eugene San
Pedro, Dante Escasura, Emil Sayao and Nelson Centeno, union leaders of respondent Union of Filipro Employees
in the Nestle case and their counsel of record, Atty. Jose C. Espinas; and Messrs. Ernesto Facundo, Fausto Gapuz,
Jr. and Antonio Gonzales, union leaders of petitioner Kimberly Independent Labor Union for Solidarity, Activism and
Nationalism-Olalia in the Kimberly case to appear before the Court on July 14, 1987 at 10:30 A.M. and then and
there to SHOW CAUSE why they should not be held in contempt of court. Atty. Jose C. Espinas was further
required to SHOW CAUSE why he should not be administratively dealt with.

On the appointed date and time, the above-named individuals appeared before the Court, represented by Atty. Jose
C. Espinas, in the absence of Atty. Potenciano Flores, counsel of record of petitioner in G.R. No. 78791, who was
still recuperating from an operation.

Atty. Espinas, for himself and in behalf of the union leaders concerned, apologized to the Court for the above-
described acts, together with an assurance that they will not be repeated. He likewise manifested to the Court that
he had experienced to the picketers why their actions were wrong and that the cited persons were willing to suffer
such penalty as may be warranted under the circumstances. 1 He, however, prayed for the Court's leniency considering that the picket
was actually spearheaded by the leaders of the "Pagkakaisa ng Mangagawa sa Timog Katagalogan" (PAMANTIK), an unregistered loose alliance of about
seventy-five (75) unions in the Southern Tagalog area, and not by either the Union of Filipro Employees or the Kimberly Independent L abor Union. 2

Atty. Espinas further stated that he had explained to the picketers that any delay in the resolution of their cases is
usually for causes beyond the control of the Court and that the Supreme Court has always remained steadfast in its
role as the guardian of the Constitution.

To confirm for the record that the person cited for contempt fully understood the reason for the citation and that they
wig abide by their promise that said incident will not be repeated, the Court required the respondents to submit a
written manifestation to this effect, which respondents complied with on July 17, 1987.

We accept the apologies offered by the respondents and at this time, forego the imposition of the sanction
warranted by the contemptuous acts described earlier. The liberal stance taken by this Court in these cases as well
as in the earlier case of AHS/PHILIPPINES EMPLOYEES UNION vs. NATIONAL LABOR RELATIONS
COMMISSION, et al., G.R. No. 73721, March 30, 1987, should not, however, be considered in any other light than
an acknowledgment of the euphoria apparently resulting from the rediscovery of a long-repressed freedom. The
Court will not hesitate in future similar situations to apply the full force of the law and punish for contempt those who
attempt to pressure the Court into acting one way or the other in any case pending before it. Grievances, if any,
must be ventilated through the proper channels, i.e., through appropriate petitions, motions or other pleadings in
keeping with the respect due to the Courts as impartial administrators of justice entitled to "proceed to the
disposition of its business in an orderly manner, free from outside interference obstructive of its functions and
tending to embarrass the administration of justice." 3

The right of petition is conceded to be an inherent right of the citizen under all free governments. However, such
right, natural and inherent though it may be, has never been invoked to shatter the standards of propriety
entertained for the conduct of courts. For "it is a traditional conviction of civilized society everywhere that courts and
juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should
be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by
bias, prejudice or sympathies."4

Moreover, "parties have a constitutional right to have their causes tried fairly in court by an impartial tribunal,
uninfluenced by publication or public clamor. Every citizen has a profound personal interest in the enforcement of
the fundamental right to have justice administered by the courts, under the protection and forms of law free from
outside coercion or interference." 5 The aforecited acts of the respondents are therefore not only an affront to the
dignity of this Court, but equality a violation of the above-stated right of the adverse parties and the citizenry at large.

We realize that the individuals herein cited who are non-lawyers are not knowledgeable in her intricacies of
substantive and adjective laws. They are not aware that even as the rights of free speech and of assembly are
protected by the Constitution, any attempt to pressure or influence courts of justice through the exercise of either
right amounts to an abuse thereof, is no longer within the ambit of constitutional protection, nor did they realize that
any such efforts to influence the course of justice constitutes contempt of court. 6 The duty and responsibility of
advising them, therefore, rest primarily and heavily upon the shoulders of their counsel of record. Atty. Jose C.
Espinas, when his attention was called by this Court, did his best to demonstrate to the pickets the untenability of
their acts and posture. Let this incident therefore serve as a reminder to all members of the legal profession that it is
their duty as officers of the court to properly apprise their clients on matters of decorum and proper attitude toward
courts of justice, and to labor leaders of the importance of a continuing educational program for their members.

WHEREFORE, the contempt charges against herein respondents are DISMISSED. Henceforth, no demonstrations
or pickets intended to pressure or influence courts of justice into acting one way or the other on pending cases shall
be allowed in the vicinity and/or within the premises of any and all courts.

SO ORDERED.
 EN BANC

G.R. No. L-30894 March 25, 1970

EDUARDO L. MARTELINO, CIRILO OROPESA, TEODORO FACELO,

RUPERTO AMISOTO, ALBERTO SOTECO, SOLFERINO TITONG, ET
AL., Petitioners, vs. JOSE ALEJANDRO, RUBEN S. MONTOYA, SIXTO R.
ALHAMBRA, AVELINO C. MENEZ, EFRAIN S. MACLANG, ET
AL., Respondents.

Amelito R. Mutuc for petitioners.

Colonel Manuel V. Reyes (Judge Advocate General, GSC), Major Samuel M.

Soriano (JAGS), Major Higinio E. Dacanay, Jr. (JAGS, PC) and Solicitor General
Felix V. Makasiar, Assistant Solicitor General Crispin V. Bautista, Solicitor
Jaime M. Lantin and Guillermo Nakar, Jr. for respondents.

CASTRO, J.:

This case presents another aspect of the court-martial proceedings against the
petitioner, Major Eduardo Martelino, alias Abdul Latif Martelino, of the Armed
Forces of the Philippines, and the officers and men under him, for violation of
the 94th and 97th Articles of War, as a result of the alleged shooting on March
18, 1968 of some Muslim recruits then undergoing commando training on the
island of Corregidor. Once before the question was raised before this Court
whether the general court-martial, convened on April 6, 1968 to try the case
against the petitioners, acquired jurisdiction over the case despite the fact that
earlier, on March 23, a complaint for frustrated murder had been filed in the
fiscal's office of Cavite City by Jibin Arula (who claimed to have been wounded
in the incident) against some of the herein petitioners. The proceedings had to
be suspended until the jurisdiction issue could be decided. On June 23, 1969
this Court ruled in favor of the jurisdiction of the military court.1 ch an rob le s v irt u al la w l ib rary

The jurisdiction question thus settled, attention once again shifted to the
general court-martial, but no sooner had the proceedings resumed than
another hitch developed. This came about as the petitioners, the accused in
the court-martial proceedings, in turn came to this Court, seeking relief
against certain orders of the general court-martial.ch an rob les virt u ala wlib rarych an rob le s virt u al la w l ib rary

It appears that at the hearing on August 12, 1969 the petitioner Martelino
sought the disqualification of the President of the general court-martial,
following the latter's admission that he read newspaper stories of the
Corregidor incident. The petitioner contended that the case had received such
an amount of publicity in the press and other news media and in fact was
being exploited for political purposes in connection with the presidential
election on November 11, 1969 as to imperil his right to a fair trial. After
deliberating, the military court denied the challenge. ch an rob le svirt u ala wlib rarych an rob les virt u al l aw lib rary

Thereafter the petitioners raised peremptory challenges against Col. Alejandro,

as president of the court-martial, and Col. Olfindo, Lt. Col. Camagay, Lt. Col.
Valones, Lt. Col. Blanco and Col. Malig, as members. With regard to
peremptory challenges it was the petitioners' position that for each
specification each accused was entitled to one such challenge. They later
changed their stand and adopted that of the trial judge advocate that "for each
specification jointly tried, all of the accused are entitled to only 1 peremptory
challenge; and that with respect to the specifications tried commonly, each
one of the accused is entitled to one peremptory challenge." They there
contended that they were entitled to a total of eleven peremptory challenges.
On the other hand the court-martial ruled that the accused were entitled to
only one peremptory challenge as the specifications were being jointly tried.
virt u al la w l ib rary
ch an rob les virt u alaw lib rarych an rob le s

The petitioners therefore filed this petition for certiorari and prohibition, to
nullify the orders of the court-martial denying their challenges, both
peremptory and for cause. They allege that the adverse publicity given in the
mass media to the Corregidor incident, coupled with the fact that it became an
issue against the administration in the 1969 elections, was such as to unduly
influence the members of the court-martial. With respect to peremptory
challenges, they contend that they are entitled to eleven such challenges, one
for each specification. ch an rob lesv irt u alawlib rar ych an rob les virt u al law lib rary

On August 29, 1969 this Court gave due course to the petition, required the
respondents as members of the general court-martial to answer and, in the
meantime, restrained them from proceeding with the case. ch an rob les virt u ala wlib rarych an rob le s virt u al la w l ib rary

In their answer the respondents assert that despite the publicity which the
case had received, no proof has been presented showing that the court-
martial's president's fairness and impartiality have been impaired. On the
contrary, they claim, the petitioner's own counsel expressed confidence in the
"integrity, experience and background" of the members of the court. As a
preliminary consideration, the respondents urge this Court to throw out the
petition on the ground that it has no power to review the proceedings of the
court-martial, "except for the purpose of ascertaining whether the military
court had jurisdiction of the person and subject matter, and whether, though
having such jurisdiction, it had exceeded its powers in the sentence
pronounced," and that at any rate the petitioners failed to exhaust remedies
available to them within the military justice system. ch an rob lesvirt u al awlib rary ch an rob les virt u al l aw lib rary

I ch an rob les virt u al la w lib rary

It is true that civil courts as a rule exercise no supervision or correcting power
over the proceedings of courts-martial, and that mere errors in their
proceedings are not open to consideration. "The single inquiry, the test, is
jurisdiction."2But it is equally true that in the exercise of their undoubted
discretion, courts-martial may commit such an abuse of discretion - what in
the language of Rule 65 is referred to as "grave abuse of discretion" - as to
give rise to a defect in their jurisdiction.3This is precisely the point at issue in
this action suggested by its nature as one for certiorari and prohibition,
namely, whether in overruling the petitioners' challenges, the general court-
martial committed such an abuse of discretion as to call for the exercise of the
corrective powers of this Court. It is thus obvious that no other way is open to
this Court by which it may avoid passing upon the constitutional issue thrust
upon it. Nor will the fact that there may be available remedies within the
system of military justice bar review considering that the questions raised are
questions of law.4 ch an rob le s v irt u al la w l ib rary

And so the threshold question is whether the publicity given to the case
against the petitioners was such as to prejudice their right to a fair trial. As
already stated, the petitioner Martelino challenged the court-martial president
on the ground that newspaper accounts of what had come to be referred to as
the "Corregidor massacre" might unduly influence the trial of their case. The
petitioner's counsel referred to a news item appearing in the July 29, 1969
issue of the Daily Mirror and cited other news reports to the effect that "coffins
are being prepared for the President (of the Philippines) in Jolo," that
according to Senator Aquino "massacre victims were given sea burial," and
that Senator Magsaysay, opposition Vice President candidate, had gone to
Corregidor and "found bullet shells." In addition the petitioners cite in this
Court a Manila Times editorial of August 26, 1969 which states that "The
Jabidah [code name of the training operations] issue was bound to come up in
the course of the election campaign. The opposition could not possibly ignore
an issue that is heavily loaded against the administration." The petitioners
argue that under the circumstances they could not expect a just and fair trial
and that, in overruling their challenge for cause based on this ground, the
general court-martial committed a grave abuse of discretion. In support of
their contention they invoke the rulings of the United States Supreme Court
in Irvin v. Dowd,5Rideau vs. Louisiana,6Estes v. Texas,7and Shepard v.
Maxwell.8 ch an rob le s virt u al la w lib rary

An examination of the cases cited, however, will show that they are widely
disparate from this case in a fundamental sense. In Irvin, for instance, the
Supreme Court found that shortly after the petitioner's arrest in connection
with six murders committed in Vanderburgh County, Indiana, the prosecutor
and police officials issued press releases stating that the petitioner had
confessed to the six murders and that "a barrage of newspaper headlines
articles, cartoons and pictures was unleashed against him during the six or
seven months preceding his trial." In reversing his conviction, the Court said:

Here the "pattern of deep and bitter prejudice' shown to be present

throughout the community, ... was clearly reflected in the sum total of the voir
dire examination of a majority of the jurors finally placed in the jury box. Eight
out of the 12 thought petitioner was guilty. With such an opinion permeating
their minds, it would be difficult to say that each could exclude this
preconception of guilt from his deliberations. The influence that lurks in an
opinion once formed is so persistent that it unconsciously fights detachment
from the processes of the average man. ... Where one's life is at stake - and
accounting for the frailties of human nature - we can only say that in the light
of the circumstances here the finding of impartiality does not meet the
constitutional standard.9

Irvin marks the first time a state conviction was struck down solely on the
ground of prejudicial publicity. 10 In the earlier case of Shepherd v.
Florida, 11 which involved elements of publicity, the reversal of the conviction
was based solely on racial discrimination in the selection of the jury, although
to concurring Justice Jackson, who was joined by Justice Frankfurter, "It is
hard to imagine a more prejudicial influence than a press release by the officer
of the court charged with defendants' custody stating that they had confessed,
and here just such a statement unsworn to, unseen, uncross-examined and
uncontradicted, was conveyed by the press to the jury. 12

In Rideau, the petitioner, suspect in the robbery of a bank in Lake Charles,

Louisiana and in the kidnapping of three of its employees, and in the killing of
one of them, was similarly given "trial by publicity." Thus, the day after his
arrest, a moving picture film was taken of him in an "interview" with the
sheriff. The "interview," which lasted approximately 20 minutes, consisted of
interrogation by the sheriff and admission by Rideau that he had perpetrated
the bank robbery, kidnapping and murder. The interview was seen and heard
on television by 24,000 people. Two weeks later he was arraigned. His lawyers
promptly moved for a change of venue but their motion was denied and
Rideau was convicted and sentenced to death. Rideau's counsel had requested
that jurors be excused for cause, having exhausted all of their peremptory
challenges, but these challenges for cause had been denied by the trial judge.
In reversing his conviction, the Court said:

[W]e hold that it was a denial of due process of law to refuse the request for a
change of venue, after the people of Calcasieu Parish had been exposed
repeatedly and in depth to the spectacle of Rideau personally confessing in
detail to the crimes with which he was later to be charged. For anyone who
has ever watched television the conclusion cannot be avoided that this
spectacle, to the tens of thousands of people who saw and heard it, in a very
real sense was Rideau's trial - at which he pleaded guilty to murder. Any
subsequent court proceedings in a community so pervasively exposed to such
a spectacle could be but a hollow formality. 13 chanrobles vi rtual law l ibrary

In the third case, Estes, the Court voided a televised criminal trial for being
inherently a denial of due process.

The state ... says that the use of television in the instant case was "without
injustice to the person immediately concerned," basing its position on the fact
that the petitioner has established no isolate prejudice and that this must be
shown in order to invalidate a conviction in these circumstances. The State
paints too broadly in this contention, for this Court itself has found instances in
which a showing of actual prejudice is not a prerequisite to reversal. This is
such a case. It is true that in most cases involving claims of due process
deprivations we require a showing of identifiable prejudice to the accused.
Nevertheless, at times a procedure employed by the State involves such a
probability that prejudice will result that it is inherently lacking in due
process. 14 chanroble s virtual law library

In Sheppard, the celebrated murder case of Sam Sheppard, who was accused
of the murder of his wife Marilyn, the Supreme Court observed a "carnival
atmosphere" in which "bedlam reigned at the courthouse ... and newsmen
took over practically the entire courtroom, hounding most of the participants
in the trial, especially Sheppard." It observed that "despite the extent and
nature of the publicity to which the jury was exposed during the trial, the
judge refused defense counsel's other requests that the jury be asked whether
they had read or heard specific prejudicial comment about the case. ... In
these circumstances, we assume that some of this material reached members
of the jury." The Court held:

From the cases coming here we note that unfair and prejudicial news comment
on pending trials has become increasingly prevalent. Due process requires that
the accused receive a trial by an impartial jury free from outside influences.
Given the pervasiveness of modern communications and the difficulty of
effacing prejudicial publicity from the minds of the jurors, the trial courts must
take strong measures to ensure that the balance is never weighed against the
accused. And appellate tribunals have the duty to make an independent
evaluation of the circumstances. Of course, there is nothing that proscribes the
press from reporting events that transpire in the courtroom. But where there
is a reasonable likelihood that prejudicial news prior to trial will prevent a fair
trial, the judge should continue the case until the threat abates, or transfer it
to another county not so permeated with publicity. In addition sequestration of
the jury was something the judge should have sua sponte with counsel. If
publicity during the proceeding threatens the fairness of the trial, a new trial
should be ordered. But we must remember that reversals are but palliatives;
the cure lies in those remedial measures that will prevent the prejudice at its
inception. The courts must take such steps by rule and regulation that will
protect their processes from prejudicial outside interference. Neither
prosecutors, counsel for defense, the accused, witnesses, court staff nor
enforcement officers coming under the jurisdiction of the court should be
permitted to frustrate its function. Collaboration between counsel and the
press as to information affecting the fairness of a criminal trial is not only
subject to regulation, but is highly censurable and worthy of disciplinary
measure. 15 chanrobles virtual law library

In contrast the spate of publicity in this case before us did not focus on the
guilt of the petitioners but rather on the responsibility of the Government for
what was claimed to be a "massacre" of Muslim trainees. If there was a "trial
by newspaper" at all, it was not of the petitioners but of the Government.
Absent here is a showing of failure of the court-martial to protect the accused
from massive publicity encouraged by those connected with the conduct of the
trial 16 either by a failure to control the release of information or to remove
the trial to another venue or to postpone it until the deluge of prejudicial
publicity shall have subsided. Indeed we cannot say that the trial of the
petitioners was being held under circumstances which did not permit the
observance of those imperative decencies of procedure which have come to be
identified with due process. ch an rob les virt u alaw lib rarych an rob le s v irt u al la w l ib rary

At all events, even granting the existence of "massive" and "prejudicial"

publicity, since the petitioners here do not contend that the respondents have
been unduly influenced but simply that they might be by the "barrage" of
publicity, we think that the suspension of the court-martial proceedings has
accomplished the purpose sought by the petitioners' challenge for cause, by
postponing the trial of the petitioner until calmer times have returned. The
atmosphere has since been cleared and the publicity surrounding the
Corregidor incident has so far abated that we believe the trial may now be
resumed in tranquility. ch an rob les virt u alaw lib rarych an rob les v irt u al la w l ib rary

II ch an rob les virt u al l aw lib rary

Article of War 18 provides that "Each side shall be entitled to one peremptory
challenge, but the law member of the court shall not be challenged except for
cause." The general court-martial originally interpreted this provision to mean
that the entire defense was entitled to only one peremptory challenge.
Subsequently, on August 27, 1969, it changed its ruling and held that the
defense was entitled to eight peremptory challenges, but the petitioners
declined to exercise their right to challenge on the ground that this Court had
earlier restrained further proceedings in the court-martial. ch an rob les virt u alawl ib rarych an rob les virt u al la w lib rary

It is the submission of the petitioners that "for every charge, each side may
exercise one peremptory challenge," and therefore because there are eleven
charges they are entitled to eleven separate peremptory challenges. The
respondents, upon the other hand, argue that "for each specification jointly
tried, all of the accused are entitled to only one peremptory challenge and that
with respect to specifications tried commonly each of the accused is entitled to
one peremptory challenge." Although there are actually a total of eleven
specifications against the petitioners, three of these should be considered as
merged with two other specifications, "since in fact they allege the same
offenses committed in conspiracy, thus leaving a balance of eight
specifications." The general court-martial thereof takes the position that all the
23 petitioners are entitled to a total of only eight peremptory challenges. ch an rob les virt u ala wlib rarych an rob l es virt u al l aw lib rary

We thus inescapably confront, and therefore now address, the issue here
posed.ch an rob les virt u alawl ib rarych an rob les virt u al la w lib rar y

We are of the view that both the petitioners and the general court-martial
misapprehend the true meaning, intent and scope of Article of War 18. As will
hereinafter be demonstrated, each of the petitioners is entitled as a matter of
right to one peremptory challenge. The number of specifications and/or
charges, and whether the accused are being jointly tried or undergoing a
common trial, are of no moment. ch an rob le svirt u ala wlib rarych an rob l es virt u al la w l ib rary

In the early formative years of the infant Philippine Army, after the passage in
1935 of Commonwealth Act No. 1 (otherwise known as the National Defense
Act), except for a handful of Philippine Scout officers and graduates of the
United States military and naval academies who were on duty with the
Philippine Army, there was a complete dearth of officers learned in military
law, this aside from the fact that the officer corps of the developing army was
numerically inadequate for the demands of the strictly military aspects of the
national defense program. Because of these considerations it was then felt
that peremptory challenges should not in the meanwhile be permitted and that
only challenges for cause, in any number, would be allowed. Thus Article 18 of
the Articles of War (Commonwealth Act No. 408), as worded on September
14, 1938, the date of the approval of the Act, made no mention or reference
to any peremptory challenge by either the trial judge advocate of a court-
martial or by the accused. After December 17, 1958, when the Manual for
Courts-Martial 17 of the Philippine Army became effective, the Judge Advocate
General's Service of the Philippine Army conducted a continuing and intensive
program of training and education in military law, encompassing the length
and breadth of the Philippines. This program was pursued until the outbreak of
World War II in the Pacific on December 7, 1941. After the formal surrender of
Japan to the allies in 1945, the officer corps of the Armed Forces of the
Philippines had expanded to a very large number, and a great many of the
officers had been indoctrinated in military law. It was in these environmental
circumstances that Article of War 18 was amended on June 12, 1948 to entitle
"each side" to one peremptory challenge, with the sole proviso that "the law
member of court shall not be challenged except for cause." ch an rob le s virt u al la w l ib rary

By its very inherent nature a peremptory challenge does not require any
reason or ground therefor to exist or to be stated. It may be used before,
during, or after challenges for cause, or against a member of the court-martial
unsuccessfully challenged for cause, or against a new member if not previously
utilized in the trial. A member challenged peremptorily is forthwith excused
from duty with the court-martial. ch an rob les virt u ala wlib rarych an rob le s virt u al law lib rary

The right of challenge comes from the common law with the trial by jury itself,
and has always been held essential to the fairness of trial by jury. 18

As was said by Blackstone, and repeated by Mr. Justice Story: 'In criminal
cases, or at least in capital ones, there is in favorem vitae, allowed to the
prisoner an arbitrary and capricious species of challenge to a certain number
of jurors, without showing any cause at all, which is called a peremptory
challenge; a provision full of that tenderness and humanity to prisoners, for
which our English laws are justly famous. This is grounded on two reasons: 1)
As every one must be sensible, what sudden impression and unaccountable
prejudices we are apt to conceive upon the bare looks and gestures of
another; and how necessary it is that a prisoner (when put to defend his life)
should have a good opinion of his jury, the want of which might totally
disconcert him; the law has conceived a prejudice even without being able to
assign a reason for his dislike. 2) Because, upon challenges for cause shown, if
the reason assigned prove insufficient to set aside the juror, perhaps the bare
questioning his indifference may sometimes provoke a resentment, to prevent
all ill consequences from which, the prisoner is still at liberty, if he pleases,
peremptorily to set him aside.' 19 chanroble s virt ual law library

The right to challenge is in quintessence the right to reject, not to select. If

from the officers who remain an impartial military court is obtained, the
constitutional right of the accused to a fair trial is maintained. ... 20 ch an rob les virt u al l aw lib rary

As we have hereinbefore stated, each of the 23 petitioners (accused before the

general court-martial) is entitled to one peremptory challenge, 21irrespective
of the number of specifications and/or charges and regardless of whether they
are tried jointly or in common. Three overriding reasons compel us to this
conclusion.
First, a peremptory challenge is afforded to an accused who, whether rightly or
wrongly, honestly feels that the member of the court peremptorily challenged
by him cannot sit in judgment over him, impartially. Every accused person is
entitled to a fair trial. It is not enough that objectively the members of the
court may be fair and impartial. It is likewise necessary that subjectively the
accused must feel that he is being tried by a fair and impartial body of officers.
Because the petitioners may entertain grave doubts as to the fairness or
impartiality of distinct, separate and different individual members of the court-
martial, it follows necessarily that each of the accused is entitled to one
peremptory challenge.

Second, Article of War 18 does not distinguish between common trials and
joint trials, nor does it make the nature or number of specifications and/or
charges a determinant. Reference is made by the respondents here to US
military law, in support of their argument that for each specification jointly
tried all of the accused are entitled to only one peremptory challenge and with
respect to all specifications tried in common each of the accused is entitled to
one peremptory challenge. We have carefully scrutinized U.S. military law, and
it is unmistakable from our reading thereof that each accused person, whether
in a joint or common trial, unquestionably enjoys the right to one peremptory
challenge. 22

Third, a perceptive analysis of the companion articles 23 to Article 18

convinces us that the word, "each side," as used in the said article in reference
to the defense, should be construed to mean each accused person. Thus,
Articles of War 17 (Trial Judge Advocate to Prosecute; Counsel to Defend), 19
(Oath), 21 (Refusal or Failure to Plead), 28 (Court to Announce Action), 29
(Closed Sessions), 30 (Method of Voting), and 36 (Irregularities - Effect of),
unequivocally speak of and refer to the "accused" in the singular. ch an rob les virt u ala wlib rarych an rob le s virt u al la w lib rary

ACCORDINGLY, subject to our pronouncement that each of the 23 petitioners

is entitled to one separate peremptory challenge, the present petition is
denied. The temporary restraining order issued by this Court on August 29,
1969 is hereby lifted. No pronouncement as to costs. .

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee,

Barredo and Villamor, JJ., concur. ch an rob les virt u ala wlib rarych a n rob les virt u al la w lib rary

Dizon, J., took no part.

 [G.R. No. L-12871. July 25, 1959.]

TIMOTEO V. CRUZ, Petitioner, v. FRANCISCO G. H. SALVA, Respondent.

Baizas & Balderrama for Petitioner.

City Attorney Francisco G. H. Salva in his own behalf.

SYLLABUS

1. CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; AUTHORITY OF THE FISCAL TO

REINVESTIGATE WHILE CASE IS PENDING APPEAL; CASE AT BAR. — Ordinarily, when a criminal case
in which a fiscal intervened though nominally, is tried and decided and it is appealed to a higher
court, the functions and actuations of said fiscal have terminated; usually, the appeal is handled for
the government by the Solicitor

General. Consequently, there would be no reason or occasion for said fiscal to conduct a
reinvestigation to determine criminal responsibility for the crime involved in the appeal. In the
present case, however, one of the defendants was not included in the trial much less in the judgment
for the reason that he was arrested only after the trial against the other accused had commenced,
even after the prosecution had rested its case and the defense had begun to present its evidence.
Naturally, this defendant remained to stand trial. Therefore, insofar as this defendant is concerned,
the Fiscal was warranted in holding the preliminary investigation involved in this case.

2. ID.; ID.; ACCUSED MAY NOT BE COMPELLED TO ATTEND INVESTIGATION. — While it is the right
of the accused to be present at the preliminary investigation, however, such right may be renounced,
and if the accused object to appear at said investigation, he can not be compelled to do so.

3. ID.; ID.; GIVING WIDE PUBLICITY AND SENSATIONALISM TO INVESTIGATION CONSTITUTES

CONTEMPT OF COURT. — In the case at bar, while the Provincial Fiscal has established a justification
for his reinvestigation of the case although the same is on appeal and pending consideration by this
Tribunal, however, said Fiscal committed a grievous error and poor judgment when he allowed, even
encouraged, the reinvestigation to be conducted with much fanfare, publicity and sensationalism.
Such actuations of the Fiscal constitute contempt of court punishable by public censure.

DECISION

MONTEMAYOR, J.:

This is a petition for certiorari and prohibition with preliminary injunction filed by Timoteo V. Cruz
against Francisco G. H. Salva, in his capacity as City Fiscal of Pasay City, to restrain him from
continuing with the preliminary investigation he was conducting in September, 1957 in connection
with the killing of Manuel Monroy which took place on June 15, 1953 in Pasay City. To better
understand the present case and its implications, the following facts gathered from the pleadings and
the memoranda filed by the parties, may be stated.

Following the killing of Manuel Monroy in 1953 a number of persons were accused as involved and
implicated in said crime. After a long trial, the Court of First Instance of Pasay City found Oscar
Castelo, Jose de Jesus, Hipolito Bonifacio, Bienvenido Mendoza, Francis Berdugo and others guilty of
the crime of murder and sentenced them to death. They all appealed the sentence although without
said appeal, in view of the imposition of the extreme penalty, the case would have to be reviewed
automatically by this Court. Oscar Castelo sought a new trial which was granted and upon retrial, he
was again found guilty and his former conviction of sentence was affirmed and reiterated by the
same trial court.

It seems that pending appeal, the late President Magsaysay ordered a reinvestigation of the case.
The purpose of said reinvestigation does not appear in the record. Anyway, intelligence agents of the
Philippine Constabulary and investigators of Malacañang conducted the investigation for the Chief
Executive, questioned a number of people and obtained what would appear to be confession, pointing
to persons, other than those convicted and sentenced by the trial court, as the real killers of Manuel
Monroy.

Counsel for Oscar Castelo and his co-defendants wrote to respondent Fiscal Salva to conduct a
reinvestigation of the case presumably on the basis of the affidavits and confessions obtained by
those who had investigated the case at the instance of Malacañang. Fiscal Salva conferred with the
Solicitor General to what steps he should take. A conference was held with the Secretary of Justice
who decided to have the results of the investigation by the Philippine Constabulary and Malacañang
investigators made available to counsel for the appellants.

Taking advantage of this opportunity, counsel for the appellants filed a motion for new trial with this
Tribunal supporting the same with the so-called affidavits and confessions of some of those persons
investigated, such as the confessions of Sergio Eduardo y de Guzman, Oscar Caymo, Pablo Canlas,
and written statements of several others. By resolution of this Tribunal, action on said motion for new
trial was deferred until the case was studied and determined on the merits. In the meantime, the
Chief, Philippine Constabulary, had sent to the Office of Fiscal Salva copies of the same affidavits and
confessions and written statements, of which the motion for new trial was based, and respondent
Salva proceeded to conduct a reinvestigation designating for said purpose a committee of three
composed of himself as chairman and Assistant City Attorneys Herminio A. Avendañio and Ernesto A.
Bernabe

In connection with said preliminary investigation being conducted by the committee, petitioner
Timoteo Cruz was subpoenaed by respondent to appear at his office on September 21, 1957, to
testify "upon oath before me in a certain criminal investigation to be conducted at that time and
place by this office against you and Sergio Eduardo, Et Al., for murder." On September 19, 1957,
petitioner Timoteo Cruz wrote to respondent Salva asking for the transfer of the preliminary
investigation from September 21, due to the fact that his counsel, Atty. Crispin Baizas, would attend
a hearing on that same day in Naga City. Acting upon said request for postponement, Fiscal Salva set
the preliminary investigation on September 24. On that day, Atty. Baizas appeared for petitioner
Cruz, questioned the jurisdiction of the committee, particularly respondent Salva, to conduct the
preliminary investigation in view of the fact that the same case involving the killing of Manuel Monroy
was pending appeal in this Court, and on the same day filed the present petition for certiorari and
prohibition. This Tribunal gave due course to the petition for certiorari and prohibition and upon the
filing of a cash bond of P200.00 issued a writ of preliminary injunction thereby stopping the
preliminary investigation being conducted by respondent Salva.

The connection, if any, that petitioner Cruz had with the preliminary investigation being conducted by
respondent Salva and his committee was that the affidavits and confessions sent to Salva by the
Chief, Philippine Constabulary, and which were being investigated, implicated petitioner Cruz, even
picturing him as the instigator and mastermind in the killing of Manuel Monroy.

The position taken by petitioner Cruz in this case is that inasmuch as the principal case of People v.
Oscar Castelo, Et Al., G. R. No. L-10794, is pending appeal and consideration before us, no court,
much less a prosecuting attorney like respondent Salva, had any right or authority to conduct a
preliminary investigation or reinvestigation of the case for that would be obstructing the
administration of justice and interferring with the consideration on appeal of the main case wherein
appellants had been found guilty and convicted and sentenced; neither had respondent authority to
cite him to appear and testify at said investigation.

Respondent Salva, however, contends that if he subpoenaed petitioner Cruz at all, it was because of
the latter’s oral and personal request to allow him to appear at the investigation with his witnesses
for his own protection, possibly, to controvert and rebut any evidence therein presented against him.
Salva claims that were it not for this request and if, on the contrary, Timoteo Cruz had expressed any
objection to being cited to appear in the investigation he (Salva) would never have subpoenaed him.

Although petitioner Cruz now stoutly denies having made such request that he be allowed to appear
at the investigation, we are inclined to agree with Fiscal Salva that such a request had been made.
Inasmuch as he, Timoteo Cruz, was deeply implicated in the killing of Manuel Monroy by the
affidavits and confessions of several persons who were being investigated by Salva and his
committee, it was but natural that petitioner should have been interested, even desirous of being
present at that investigation so that he could face and cross examine said witnesses and affiants
when they testified in connection with their affidavits or confessions, either repudiating, modifying or
ratifying the same. Moreover, in the communication, addressed to respondent Salva asking that the
investigation, scheduled for September 21, 1957, be postponed because his attorney would be
unable to attend, Timoteo Cruz expressed no opposition to the subpoena, not even a hint that he was
objecting to his being cited to appear at the investigation.

As to the right of respondent Salva to conduct the preliminary investigation which he and his
committee began, ordinarily, when a criminal case in which a fiscal intervened though nominally, for
according to respondent, two government attorneys had been designed by the Secretary of Justice to
handle the prosecution in the trial of the case in the court below, is tried and decided and it is
appealed to a higher court such as this Tribunal, the functions and actuations of said fiscal have
terminated; usually, the appeal is handled for the government by the Office of the Solicitor General.
Consequently, there would be no reason or occasion for said fiscal to conduct a reinvestigation to
determine criminal responsibility for the crime involved in the appeal.

However, in the present case, respondent has, in our opinion, established a justification for his
reinvestigation because according to him, in the original criminal case against Castelo, Et Al., one of
the defendants named Salvador Realista y de Guzman was not included in the trial much less in the
judgment for the reason that he was arrested and was placed within the jurisdiction of the trial court
only after the trial against the other accused had commenced, even after the prosecution had rested
its case and the defense had begun to present its evidence. Naturally, Realista remained to stand
trial. The trial court, according to respondent, at the instance of Realista, had scheduled the hearing
at an early date, that is in August, 1957. Respondent claims that before he would go to trial in the
prosecution of Realista he had to chart his course and plan of action, whether to present the same
evidence, oral and documentary, presented in the original case and trial, or, in view of the new
evidence consisting of the affidavits and confessions sent to him by the Philippine Constabulary, he
should first assess and determine the value of said evidence by conducting an investigation and that
should he be convinced that the persons criminally responsible for the killing of Manuel Monroy were
other than those already tried and convicted, like Oscar Castelo and his co-accused and co-
appellants, including Salvador Realista, then he might act accordingly and even recommend the
dismissal of the case against Realista.

In this, we are inclined to agree with respondent Salva. For, as contended by him and as suggested
by authorities, the duty and role of a prosecuting attorney is not only to prosecute and secure the
conviction of the guilty but also to protect the innocent.

"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 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 twofold aim of which is that guilt shall not escape nor innocent 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, cited in the case of Suarez v. Platon, 69 Phil.,
556).

With respect to the right of respondent Salva to cite petitioner to appear and testify before him at the
scheduled preliminary investigation, under the law, petitioner had a right to be present at that
investigation since as was already stated, he was more or less deeply involved and implicated in the
killing of Monroy according to the affiants whose confessions, affidavits and testimonies respondent
Salva was considering or was to consider at said preliminary investigation. But he need not be
present at said investigation because his presence there implies, and was more of a right rather than
a duty or legal obligation. Consequently, even if, as claimed by respondent Salva, petitioner
expressed the desire to be given an opportunity to be present at the said investigation, if he later
changed his mind and renounced his right, and even strenuously objected to being made to appear
at said investigation, he could not be compelled to do so.

Now we come to the manner in which said investigation was conducted by the Respondent. If, as
contended by him, the purpose of said investigation was only to acquaint himself with and evaluate
the evidence involved in the affidavits and confessions of Sergio Eduardo, Cosme Camo and others
by questioning them, then he respondent, could well have conducted the investigation in his office,
quietly, unobtrusively and without much fanfare, much less publicity.

However, according to the petitioner and not denied by the respondent, the investigation was
conducted not in respondent’s office but in the session hall of the Municipal Court of Pasay City
evidently, to accommodate the big crowd that wasted to witness the proceeding, including members
of the press. A number of microphones were installed. Reporters were everywhere and
photographers were busy taking pictures. In other words, apparently with the permission of, if not
the encouragement by the respondent, news photographers and newsmen had a field day. Not only
this, but in the course of the investigation, as shown by the transcript of the stenographic notes
taken during said investigation, on two occasions, the first, after Oscar Caymo had concluded his
testimony, respondent Salva, addressing the newspapermen said, "Gentlemen of the press, if you
want to ask questions I am willing to let you do so and the questions asked will be reproduced as my
own" ; and the second, after Jose Maratella y de Guzman had finished testifying and respondent
Salva, addressing the newsmen, again said, "Gentlemen of the press is free to ask question to the
witness if you want to. We are willing to adopt the questions as ours." Why respondent was willing to
abdicate and renounce his right and prerogative to make and address the questions to the witnesses
under investigation, in favor of the members of the press, is difficult for us to understand, unless he,
respondent, wanted to curry favor with the press and publicize his investigation as much as possible.
Fortunately, the gentlemen of the press to whom he accorded such unusual privilege and favor
appeared to have wisely and prudently declined the offer and did not ask questions, this according to
the transcript now before us.

But, the newspapers certainly played up and gave wide publicity to what took place during the
investigation, and this involved headlines and extensive recitals, narrations of and comments on the
testimonies given by the witnesses as well as vivid descriptions of the incidents that took place
during the investigation. It seemed as though the criminal responsibility for the killing of Manuel
Monroy which had already been tried and finally determined by the lower court and which was under
appeal and advisement by this Tribunal, was being retried and redetermined in the press, and all with
the apparent placet and complaisance of Respondent.

Frankly, the members of this Court were greatly disturbed and annoyed by such publicity and
sensationalism, all of which may properly be laid at the door of respondent Salva. In this, he
committed what we regard a grievous error and poor judgment for which we fail to find any excuse
or satisfactory explanation. His actuations in this regard went well beyond the bounds of prudence,
discretion and good taste. It is bad enough to have such undue publicity when a criminal case is
being investigated by the authorities, even when it is being tried in court; but when said publicity and
sensationalism is allowed, even encouraged, when the case is on appeal and is pending consideration
by this Tribunal, the whole thing becomes inexcusable, even abhorrent, and this Court, in the interest
of justice, is constrained and called upon to put an end to it and a deterrent against its repetition by
meting an appropriate disciplinary measure, even a penalty to the one liable.

Some of the members of the Court who appeared to feel more strongly than the others favored the
imposition of a more or less severe penal sanction. After mature deliberation, we have finally agreed
that a public censure would, for the present, be sufficient.

In conclusion, we find and hold that respondent Salva was warranted in holding the preliminary
investigation involved in this case, insofar as Salvador Realista is concerned, for which reason the
writ of preliminary injunction issued stopping said preliminary investigation, is dissolved; that in view
of petitioner’s objection to appear and testify at the said investigation, respondent may not compel
him to attend said investigation, for which reason, the subpoena issued by respondent against
petitioner is hereby set aside.

In view of the foregoing, the petition for certiorari and prohibition is granted in part and denied in
part. Considering the conclusion arrived at by us, respondent Francisco G. H. Salva is hereby publicly
reprehended and censured for the uncalled for and wide publicity and sensationalism that he had
given to and allowed in connection with his investigation, which we consider and find to be contempt
of court; and, furthermore, he is warned that a repetition of the same would meet with a more
severe disciplinary action and penalty. No costs.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Endencia and Barrera, JJ.,
concur.