A.M. No. 07-09-13-SC Re: In the Matter of the Allegations Contained in the Columns of Mr. Amado A.P.

. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007. CARPIO, J.:

The Case

This resolves a contempt charge[1] against respondent Amado A.P. Macasaet (Macasaet), a newspaper columnist, for authoring publications imputing bribery to a member of this Court.

The Facts

Macasaet writes a daily column, Business Circuit, in Malaya, a newspaper of general circulation. In the 18-21 September 2007 issues of Malaya, Macasaet ran a story, based on information obtained from confidential sources, of an alleged bribery in the Court committed as follows: on separate occasions in the second week of September 2007,[2] five[3] boxes containing cash worth P10 million were delivered to the Court and received by a certain Cecilia, a staff of an unnamed lady Justice, who opened one of the boxes and saw its contents. Forthwith, the Justice terminated Cecilias employment. The payoff was made allegedly in connection with a decision rendered by the Justice acquitting a Filipino -Chinese businessman. Macasaets story, which carried commentaries on the state of the judiciary and reputation of judges,[4] exhorted Cecilia to divulge everything she knows about the alleged bribery and the Co urt to investigate the matter.

Subsequently, Newsbreak, an online magazine, posted on its website[5] a news report that the Court is investigating a bribery incident based on facts substantially similar[6]to what Macasaet wrote. Written by Marites Danguilan Vitug (Vitug), Newsbreak editor, and Aries Rufo (Rufo), Newsbreak reporter, the news report named Justice Consuelo Ynares-Santiago as the member of the Court involved in the alleged bribery and one Cecilia Delis (Delis)[7] as her staff whose employment she terminated.

On 24 September 2007, Justice Santiago issued a statement denying the accusations and insinuations published in Malaya and Newsbreak. Justice Santiago also asked the Court to investigate the matter.

In a Resolution dated 25 September 2007, the Court en banc required Macasaet to explain why no sanction should be impose*d+ on him for indirect contempt of court under Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.[8] After Macasaet submitted his compliance and Delis her affidavit, the Court, in the Resolution of 16 October 2007, created a Committee, composed of former members of the Court,[9] to receive evidence from all parties concerned and submit its report and recommendation within 30 days from the start of its hearing. Macasaet, Vitug, Rufo, Delis and other Court employees[10] appeared and testified before the Committee.

Macasaet, Vitug and Rufo uniformly testified that they obtained the information on the alleged bribery from their respective confidential sources. Delis denied having received or opened any box containing cash intended for Justice Santiago. While admitting that she was a staff of Justice Santiago, Delis denied having been fired from service and claimed that she resigned effective 15 March 2007. Danilo Pablo of the Courts Security Division testified that while visitors to the Court are listed in the logbook at the Courts gate, the security personnel, as a matter of policy, do not open gifts or boxes intended for members of the Court.

It was determined during the hearings conducted by the Committee that the case referred to in Macasaet and Newsbreaks[11] publications is G.R. No. 172602 (Henry T. Go v. The Fifth Division, Sandiganbayan). The petition in G.R. No. 172602 sought the nullification of the Sandiganbayans ruling denying quashal of the Information filed against petitioner Henry T. Go (Go) for violation of Section 3(g), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). In a Decision dated 13 April 2007, penned by Justice Romeo J. Callejo, Sr., the Third Division, by a divided vote,[12] dismissed the petition in G.R. No. 172602. Go sought reconsideration and while his motion was pending, Justice Callejo retired from the Court. In the Resolution dated 3 September 2007, penned by Justice Santiago, a Special Third Division, again by a divided vote,[13] granted Gos motion, reversed the Decision of 13 April 2007, and dismissed the Information filed against Go. The respondent sought reconsideration which awaits resolution.

In its Report and Recommendation dated 10 March 2008 (Report), the Committee found that there exist valid grounds x x x to cite x x x Macasaet for indirect contempt x x x. The Report found that (1) Macasaets publications were false, baseless,[14] unbelievable,[15] and malicious[16] and (2) Macasaet was negligent in failing to ascertain the veracity of his story.[17] The Committee concluded that Macasaets publications generated public distrust in the administration of justice and thus, contumacious. The majority finds the Reports findings and conclusion well-taken and accordingly imposes a punitive fine on Macasaet.

I agree with the majority that Macasaet failed to substantiate his story. However, I disagree with the majoritys conclusion that this suffices to hold Macasaet guilty of contempt of court.

Preliminary Observations

On the Nature of this Proceeding

As stated, this is a proceeding to determine Macasaets liability for criminal contempt[18] under Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.[19] Thus, its scope is narrow and its purpose specific: to determine, using applicable standards, whether Macasaets publications tend to impede, obstruct, or degrade the administration of justice. Care must be taken that, in undertaking this task, we do not tread beyond the limited confines of this proceeding and enter into the larger determination of whether bribery, as defined in our criminal statutes,[20] did or did not take place to remove a member of this Court from office. The Constitution has vested such power only on Congress[21]which, upon proper complaint and after due proceedings, determines whether a member of this Court can be impeached for, among others, bribery.[22] Observance of this jurisdictional delineation has a practical consequence: this proceeding terminates either in Macasaets citation or non-citation for indirect contempt of court depending on whether his publications are deemed contumacious.

On Whether this Case Should be Decided by the Court En Banc or by the Special Third Division in G.R. No. 172602

While there may have been confusion at the start as to which case was involved in the reported bribery,[23] it is now settled that the case is G.R. No. 172602 pending with the Special Third Division (awaiting resolution of respondent's motion for reconsideration). Hence, it is but proper and logical that the Special Third Division resolve this matter which, after all, is but an incident to G.R. No. 172602. While this Court is a collegiate court, it is no less a court of law when it sits in a division than when it sits en banc, to resolve judicial matters, or, as here, a contempt charge. At any rate, whether it is the Court en banc or the Special Third Division in G.R. No. 172602 which resolves this matter, Macasaets conduct is not contumacious.

The Committee Proceedings were Fatally Defective

The Resolution dated 16 October 2007 created the Committee to:

[R]eceive x x x evidence from all the parties concerned [and] x x x, on its own, call such persons who can shed light on the matter. It shall be endowed with all the powers necessary to discharge its duty.

The Committee read this Resolution as having granted it mere fact-finding powers.[24] Accordingly, when the witnesses the Committee summoned testified, the Committee monopolized the right to propound questions to the witnesses, denying to Macasaet such right.

This procedure is fatally defective for patent denial of due process, rendering the testimonies in question inadmissible.

A proceeding for criminal contempt, as here, is adversarial.[25] At the heart of such adversarial process is the parties right to test the veracity of the testimonies of adverse witnesses through cross examination. With the procedure the Committee adopted, Macasaet was reduced to a passive participant, unable to subject the testimonies of adverse witnesses to rigorous probing under crossexamination. As matters stand, Macasaet will be subjected to punitive sanctions based on evidence he had no opportunity to scrutinize.

True, the Committee solicited the views of the parties, and the counsels for the Newsbreak staff[26] and Delis[27] agreed with the Committee's characterization of the proceedings as mere fact-finding.[28] However, this acquiescence is no more binding on the Court than the Committee's view. It is an erroneous conclusion of law which cannot transform the nature of a contempt proceeding from adversarial to non-adversarial.

Nor can it be said, as the ponencia holds, that Macasaet waived his right to conduct crossexamination for his failure to timely assert such right. This conclusion erroneously presupposes that

Macasaet should have asserted such right at that point. The Committee stated at the outset that its investigation was merely fact-finding, making Macasaet believe that there would be another occasion for a cross-examination of the witnesses. Thus, Macasaet did not insist on his right to cross-examine at that point. Having been denied the right to cross-examine from the start, there was nothing which Macasaet could have timely asserted.

The Applicable Standard in Contempt-by-Publication Proceedings

At any rate, the evidence at hand fails to meet the applicable standard in contempt-by-publication proceedings.

This matter comes on the heels of a small but growing line of jurisprudence on contempt-bypublication;[29] however, this is only the second incident to involve this Court on reports of corruption.[30] These cases implicate two competing but equally vital State interests: on the one hand, the right of journalists to be protected from contempt of court under the constitutional guarantees of free speech and of the press and, on the other hand, the right of the courts to maintain order, impartiality and dignity in the administration of justice. In resolving the matter, we are called upon to perform a task more commonly done in constitutional adjudication the balancing of constitutional values using applicable standards. As ever, the result of this delicate task hinges on the liberality or stringency of the test used against which the two interests are weighed.

In concluding that there exist valid grounds x x x to cite x x x Macasaet for indirect contempt x x x, the Report implicitly used two parameters, first applied in In Re: Emil P. Jurado[31] (Jurado test), against which Macasaets publications were measured: (1) whether Macasaets story was false and (2) whether Macasaet could have prevented the publication of the false story by exercising diligence in verifying its veracity.[32] As stated, the Report found Macasaets publications wanting on both counts.

However, long before we adopted the Jurado test, this Court already laid down the two theoretical formulas to serve as the judicial scales upon which the competing interests in this proceeding are weighed. We held in Cabansag v. Fernandez:[33]

Two theoretical formulas had been devised in the determination of conflicting rights of similar import in an attempt to draw the proper constitutional boundary between freedom of expression and

independence of the judiciary. These are the [1] "clear and present danger" rule and the [2] "dangerous tendency" rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. And this evil is primarily the "disorderly and unfair administration of justice." This test establishes a definite rule in constitutional law. It provides the criterion as to what words may be published. Under this rule, the advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that such advocacy will harm the administration of justice.

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Thus, speaking of the extent and scope of the application of [the first] rule, the Supreme Court of the United States said "Clear and present danger of substantive evils as a result of indiscriminate publications regarding judicial proceedings justifies an impairment of the constitutional right of freedom of speech and press only if the evils are extremely serious and the degree of imminence extremely high. . . . A public utterance or publication is not to be denied the constitutional protection of freedom of speech and press merely because it concerns a judicial proceeding still pending in the courts, upon the theory that in such a case it must necessarily tend to obstruct the orderly and fair administration of justice.*+ x x x x

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The "dangerous tendency" rule, on the other hand, has been adopted in cases where extreme difficulty is confronted in determining where the freedom of expression ends and the right of courts to protect their independence begins. There must be a remedy to borderline cases and the basic principle of this rule lies in that the freedom of speech and of the press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations, one of them being the protection of the courts against contempt (Gilbert vs. Minnesota, 254U. S. 325.)

This rule may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. (Gitlow vs. New York, 268 U.S. 652.)

Thus, in this jurisdiction, we have long ago applied the clear and present danger test in contempt cases.[34] We must scrutinize Macasaet's publications through the lens of the clear and present danger test guided by these queries: (1) is the evil consequence of Macasaets publications extremely serious? and (2) is the degree of its imminence extremely high? The facts of this case do not meet either criterion.

Although the majority, in adopting the Reports findings, did not expressly so state, it appears that the substantive evil allegedly brought about by Macasaets publications is two-fold: (1) disrespect for the Court and (2) unfair administration of justice. To determine to what extent the substantive evil is likely to occur, we must turn to the particular utterances and the circumstances of their publication.[35] On the question of disrespect for the Court, the Report seemed to have cherry-picked words from Macasaet's publications describing the Courts reputation (sagging and soiled), the state of the courts (dirty), and the publics appraisal of judges (thieves) and separated them from their context to arrive at its conclusion. Adopting the same approach, the majority holds that *Macasaet+ has absolutely no basis to call the Supreme Court a court of 'thieves' and a 'basket of rotten apples.'[36]

A simple resort to the publications in question belies these findings. Macasaet used these terms to bring home his point that (1) the alleged bribery proves the less than a desirable state of affairs in the judiciary (that is, the courts are dirty); (2) which reflects on the entire judiciary (similar to a basket of apples where, if there are a few which are rotten*;+ *t+hat makes the whole basket rotten); and (3) that the Court must investigate the reported bribery with Delis aid to save the other members of the Court from suspicions they are thieves.[37] Thus, taken in context of their actual use as they appeared in Macasaet's publications, the words the majority finds contumacious are no more disrespectful of courts than when a publication states that a reported pay-off proves that the judiciary is populated by hoodlums in robes.[38]

On Macasaets statement that the Justice in question shamed her court and that she should resign or be impeached, it needs no further elaboration that this statement is not directed at the Court but at one of its members. Without passing judgment on the nature of this statement, it is obvious that the remedy for any injury this may have caused lies not in this Courts exercise of its contempt power but in the resort by the Justice concerned to remedies available under our civil and criminal statutes to vindicate her rights.[39]

On the question of unfair administration of justice, neither has it been claimed nor suggested that this matter has or will adversely affect the disposition of the pending incident in G.R. No. 172602. If there is any party which stands to be directly prejudiced by the alleged bribery, it is the government whose case against Go was ordered dismissed in the Resolution of 3 September 2007. However, the government has not asked for Justice Santiago's inhibition from that case, indicating its continuing trust

and confidence in her impartiality. With this backdrop, the Report's conclusion that Macasaets publications generate*d+ public distrust in the administration of justice and wrought damage and injury to the institutional integrity, dignity, and honor[40] of this Court rings hollow, rooted on assumptions bereft of factual basis. As well observed by then Associate Justice, now Chief Justice Reynato S. Puno, in Jurado which also involved a journalist who authored false reports of corruption in the Court:

There is nothing in the record, however, showing the degree how respondent's false report degraded the administration of justice. The evidence from which this conclusion can be deduced is nil. The standing of respondent as a journalist is not shown. The extent of readership of respondent is not known. His credibility has not been proved. Indeed, nothing in the record shows that any person lost faith in our system of justice because of his said report. Even the losing party x x x does not appear to have given any credence to the said false report.[41] (Emphasis supplied)

These observations are consistent with the rule that the clear and present danger test is deemed met only upon showing that the material would tend to cause the unfair disposition of pending cases [42] or create an imminent and serious threat to the ability of the Court to decide the issues before it.[43] In sum, the facts of this case fall short of the stringent standard under the clear and present danger test that the substantive evil brought about by the publications be extremely serious and the degree of imminence extremely high.[44]

The clear and present danger test, which this Court has been applying in contempt cases,[45] is most protective of free speech and of free press, basic rights which are necessary for the exercise of almost every other fundamental right.[46] That this case is a criminal contempt proceeding gives added protection to Macasaet who invokes freedom of the press. Indeed, Macasaet is afforded the basic rights granted to the accused[47] in a criminal case and as precondition for citing him in contempt, intent to commit contempt of court must be shown by proof beyond reasonable doubt. Good faith or absence of intent to harm the courts is a valid defense.[48] Macasaet did invoke good faith but the Report brushed it aside as tongue in cheek protestation*+.[49]

The clear and present danger test is the most exacting and protective test in favor of free press. Before a journalist can be punished in a criminal contempt case, as in this case, there must be proof beyond reasonable doubt that his publication tends to obstruct the administration of justice, and such obstruction must be extremely serious, likely resulting in an unfair decision, and the degree of imminence of the obstruction actually happening extremely high.

Macasaet and Newsbreak based their reports on the alleged bribery from information obtained from their respective confidential sources. In short, it was a professional call on the part of Macasaet and Newsbreak to run the story. This Court should be the last to attribute negative motives for this judgment call.[50] Admittedly, Macasaet has failed to substantiate his story spread over four issues of Malaya, divulging bits and pieces of vague information. This, however, does not serve to lessen the protection afforded to the publications which carried them under the constitutional guarantees of free speech and of free press. Journalists, agents of the people[51] who play a vital role in our polity by bringing to the public fora issues of common concern such as corruption, must be accorded the same breathing space for erroneous statements necessary for free expression to thrive in a democratic society.[52]

Further, failure to substantiate a story, or even the mere falsity of publications, had long ceased to suffice to hold journalists in contempt of court (unless there is a clear and present danger that such false reports will impair the administration of justice)[53] just as it had long ceased to suffice to hold journalists liable for libel for criticism of public officials under the actual malice standard.[54] Chief Justice Punos discussion of this point in Jurado is most illuminating:

[R]espondent [is punished] for publishing "stories shown to be false . . . stories that he made no effort whatsoever to verify and which, after being denounced as lies, he has refused, or is unable to substantiate." The undue weight given to the falsity alone of respondent's columns is unsettling. For after finding respondent's columns as false, the majority did not go any further to determine whether these falsehoods constitute a clear and present danger to the administration of justice.

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[T]he majority cites in support of its non-too-liberal stance the cases of New York Times Co. v. Sullivan and Garrison v. Louisiana. These cases, however, are ground breaking in importance for they expanded the protection given to freedom of speech and of the press. New York Times restricted the award of damages in favor of public officials in civil suits for damages arising out of libel precisely because of their chilling effects on the exercise of freedom of speech and of the press. To be entitled to damages, the public official concerned was imposed a very difficult, if not impossible, burden of proof. He was required to prove that the defamatory statement was not only false but was made with "actual malice." This means he has to prove that the defamatory statement was made with the "knowing falsity or with a reckless disregard for the truth." On the other hand, Garrison did not only reiterate but even extended the New York Times rule to apply to criminal cases. x x x x xxxx

The majority opinion in the case at bench certainly did not follow the New York Times rule which was reiterated and even expanded in Garrison. The majority halted after finding that the respondent's columns are false or slanted.[55] (Boldfacing supplied) To support its conclusion finding Macasaet guilty of contempt of this Court, the majority made a selective survey of contempt of court jurisprudence and sought to apply them here. However, of the cases the majority cites, only three involved contempt by publication proceedings, two of which, In re Kelly[56] and In re Sotto[57] were decided long before we laid down the parameters of the clear and present danger test in Cabansag.[58] As for the third case of People v. Godoy,[59] the Court in fact applied the clear and present danger test in that case, thus:

Snide remarks or sarcastic innuendoes do not necessarily assume that level of contumely which is actionable under Rule 71 of the Rules of Court. Neither do we believe that the publication in question was intended to influence this Court for it could not conceivably be capable of doing so. The article has not transcended the legal limits for editorial comment and criticism. Besides, it has not been shown that there exists a substantive evil which is extremely serious and that the degree of its imminence is so exceptionally high as to warrant punishment for contempt and sufficient to disregard the constitutional guaranties of free speech and press. (Emphasis supplied)

Thus, while ostensibly using relevant jurisprudence to arrive at its conclusion, the majority actually relied on the liberal parameters of the falsity and negligence test used inJurado. The falsity and negligence test is a sharp dagger aimed at the heart of free speech and of free press. Applied for the first time in Jurado and nowhere else on this planet, this test does not consider the seriousness or imminence of the substantive evil sought to be prevented. Any kind of unflattering publication to a judge or court, whether or not putting at risk a fair trial or decision, becomes punishable for contempt if false and the journalist could have prevented the publication by exercising diligence to verify its veracity. Good faith is not a defense.

The falsity and negligence test compels the journalist to guarantee the veracity of what he writes on pain of criminal contempt of court. Obviously, this has a chilling effect on free speech and free press. This will lead to self-censorship, suppressing the publication of not only what is false but also of what is true. Critics of judges or the courts will be forced into silence, unless they are willing to face imprisonment or fine for criminal contempt. The falsity and negligence test is a dangerous throwback to the Dark Ages in the history of free speech and of free press.

By approving the Reports reliance on the Jurado test, the majority perpetuates a double-standard vis-avis publications critical of public officials. On the one hand, the majority applies the liberal falsity and negligence test in lieu of the exacting clear and present danger test to scrutinize publications critical of

judges in contempt cases, and on the other hand, applies the stringent actual malice test for publications critical of all other public officials.

This Court has extended the constitutional protection of free speech to publications critical of a barangay official,[60] provincial governor (and concurrently a cabinet official),[61] and other public figures,[62] for lack of proof of knowledge that the publication was false or of reckless disregard of whether the publication was false or not. However, the Court today is imposing punitive sanctions on a journalist for authoring publications imputing malfeasance on a member of the Court because the journalist failed to substantiate his story, despite incontrovertible proof that he acted in good faith as shown by the parallel publication of the same story by another media outlet based on its own confidential sources (which, significantly, was never made to justify its conduct).

Supreme Court Justices, as public officials, and the Supreme Court, as an institution, are entitled to no greater immunity from criticism than other public officials and institutions.[63] Indeed, the dualtreatment that the majority tolerates turns on its head the purpose of the contempt power: instead of protect*ing+ immediate litigants and the public from the mischievous danger of an unfree or coerced tribunal it protects the court as a mystical entity or the judges x x x as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.[64] As the Highest Court of the land, the Court should be the first to resist the temptation to privilege its members with the shield of lese-majeste, through the liberal falsity and negligence test, at the expense of diluting the essence of the free press guarantee indispensable in a democratic society. This Court diminishes itself if it diminishes the free press guarantee, for an independent judiciary needs a free press as much as a free press needs an independent judiciary.[65]

Courts must, as a matter of self-preservation, be able to defend themselves. But it is not against all attacks that they can employ the preservative[66] power of contempt. As this Court recognized more than half a century ago in Cabansag, it is only when the evil brought about by the attack is extremely serious and the degree of imminence extremely high so as to impede, obstruct, or degrade the administration of justice that courts must act. To apply this exacting test is not to deny a right inherent in courts but to recognize their place in a free society always accountable to the public whom they serve and for whom they exist. More than a decade ago, this Court was given the chance in Jurado, as the Court is again now, of applying to itself this rigorous test to an unsubstantiated publication imputing corruption to a member of this Court. The eloquent words of Chief Justice Puno explaining why a step towards such a direction serves the cause of press freedom and good government remain true today as they did then:

*I+t is not every falsehood that should incur the Courts ire, lest it runs out of righteous indignation. Indeed, gross falsehoods, vicious lies, and prevarications of paid hacks cannot deceive the public any more than can they cause this Court to crumble. If we adopt the dangerous rule that we should curtail speech to stop every falsehood we might as well abolish freedom of speech for there is yet to come a man whose tongue tells only the truth. In any event, we should take comfort in the thought that falsehoods cannot destroy only truth does but only to set us free.

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[T]he columns of respondent dealt with the sensitive subject of corruption in courts. It cannot be gainsaid that corruption in government is a matter of highest concern to our citizenry. Yet it is a problem that defies solution primarily because it is a subject where people in the know maintain the countenance of a claim. Thus, the prosecution of corruption in government has not hit a high note and that what now appears as the most effective restraint against corruption in government is the fear of the light of print. If the light of print continues to be a strong deterrent against government misdeeds, it is mainly because newsmen have an unimpeded access to information. On many an occasion, these confidential sources of information are the only leads to government malfeasance. To fashion a rule derogatory of the confidentiality of newsmen's sources will result in tremendous loss in the flow of this rare and valuable information to the press and will prejudice the State's policy to eliminate corruption in government. In the absence of clear and convincing evidence that respondent knowingly foisted a falsehood to degrade our administration of justice, we should be slow in citing him for contempt. The New York Times rule correctly warned us that occasional erroneous statements are "inevitable in free debate . . . and must be protected if the freedoms of expression are to have the 'breathing space' that they 'need, to survive.'"

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[T]he abuses of some newsmen cannot justify an overarching rule eroding the freedom of all of them. Indeed, the framers of the Constitution knew that these abuses will be committed by some newsmen but still, they explicitly crafted section 4, Article III of the Constitution to read: *No law shall be passed abridging the freedom of speech, of expression, or of the press . . . Madison stressed that some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press. There is an appropriate remedy against abusive newsmen. I submit, however, that the remedy is not to be too quick in wielding the power of contempt for that will certainly chain the hands of many newsmen. Abusive newsmen are bad but laundered news is worse.

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[T]he Constitution did not conceive the press to act as the cheer leader of government, including the judiciary. Rather, the press is the agent of the people when it gathers news, especially news derogatory to those who hold the reins of government. The agency is necessary because the people must have all available information before they exercise their sovereign judgment. As well observed: The newspapers, magazines, and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrument of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. As agent of the people, the most important function of the press in a free society is to inform and it cannot inform if it is uninformed. We should be wary when the independent sources of information of the press dry up, for then the press will end up printing praise releases and that is no way for the people to know the truth.[67] (Emphasis supplied)

Accordingly, I vote NOT to hold Macasaet in contempt of court.

ANTONIO T. CARPIO Associate Justice

EN BANC

IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO.

A.M. No. 10-7-17-SC

Present:

CORONA, C.J.,

CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ.

Promulgated:

October 12, 2010 x --------------------------------------------------------------------------------------- x

DECISION

PER CURIAM:

This case is concerned with charges that, in preparing a decision for the Court, a designated member plagiarized the works of certain authors and twisted their meanings to support the decision.

The Background Facts

Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of the Malaya Lolas Organization, filed with the Court in G.R. No. 162230 a special civil action of certiorari with application for preliminary mandatory injunction against the Executive Secretary, the Secretary of Foreign Affairs, the Secretary of Justice, and the Office of the Solicitor General.

Petitioners claimed that in destroying villages in the Philippines during World War II, the Japanese army systematically raped them and a number of other women, seizing them and holding them in houses or cells where soldiers repeatedly ravished and abused them.

Petitioners alleged that they have since 1998 been approaching the Executive Department, represented by the respondent public officials, requesting assistance in filing claims against the Japanese military officers who established the comfort women stations. But that Department declined, saying that petitioners individual claims had already been fully satisfied under the Peace Treaty between the Philippines and Japan.

Petitioners wanted the Court to render judgment, compelling the Executive Department to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice and other international tribunals.

On April 28, 2010, the Court rendered judgment dismissing petitioners action. Justice Mariano C. del Castillo wrote the decision for the Court. The Court essentially gave two reasons for its decision: it cannot grant the petition because, first, the Executive Department has the exclusive prerogative under the Constitution and the law to determine whether to espouse petitioners claim against Japan; and, second, the Philippines is not under any obligation in international law to espouse their claims.

On June 9, 2010, petitioners filed a motion for reconsideration of the Courts decision. More than a month later on July 18, 2010, counsel for petitioners, Atty. Herminio Harry Roque, Jr., announced in his online blog that his clients would file a supplemental petition detailing plagiarism committed by the court under the second reason it gave for dismissing the petition and that these stolen passages were also twisted to support the courts erroneous conclusions that the Filipino comfort women of World War Two have no further legal remedies. The media gave publicity to Atty. Roques announcement.

On July 19, 2010, petitioners filed the supplemental motion for reconsideration that Atty. Roque announced. It accused Justice Del Castillo of manifest intellectual theft and outright plagiarism[1] when he wrote the decision for the Court and of twisting the true intents of the

plagiarized sources to suit the arguments of the assailed Judgment.[2] They charged Justice Del Castillo of copying without acknowledgement certain passages from three foreign articles:

a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009); b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).

Petitioners claim that the integrity of the Courts deliberations in the case has been put into question by Justice Del Castillos fraud. The Court should thus address and disclose to the public the truth about the manifest intellectual theft and outright plagiarism[3] that resulted in gross prejudice to the petitioners.

Because of the publicity that the supplemental motion for reconsideration generated, Justice Del Castillo circulated a letter to his colleagues, subsequently verified, stating that when he wrote the decision for the Court he had the intent to attribute all sources used in it. He said in the pertinent part:

It must be emphasized that there was every intention to attribute all sources, whenever due. At no point was there ever any malicious intent to appropriate anothers work as our own. We recall that this ponencia was thrice included in the Agenda of the Court en banc. It was deliberated upon during the Baguio session on April 13, 2010, April 20, 2010 and in Manila on April 27, 2010. Each time, suggestions were made which necessitated major revisions in the draft. Sources were re-studied, discussions modified, passages added or deleted. The resulting decision comprises 34 pages with 78 footnotes.

xxxx

As regards the claim of the petitioners that the concepts as contained in the above foreign materials were twisted, the same remains their opinion which we do not necessarily share.[4]

On July 27, 2010, the Court En Banc referred the charges against Justice Del Castillo to its Committee on Ethics and Ethical Standards, chaired by the Chief Justice, forinvestigation and recommendation. The

Chief Justice designated retired Justice Jose C. Vitug to serve as consultant of the Committee. He graciously accepted.

On August 2, 2010, the Committee directed petitioners to comment on Justice Del Castillos verified letter. When this was done, it set the matter for hearing.

In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his co-author Evan FoxDescent (referred to jointly as Criddle-Descent) learned of alleged plagiarism involving their work but Criddles concern, after reading the supplemental motion for reconsideration, was the Courts conclusion that prohibitions against sexual slavery are not jus cogens or internationally binding norms that treaties cannot diminish.

On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in mentioning his work, the Court may have misread the argument *he+ made in the article and employed them for cross purposes. Dr. Ellis said that he wrote the article precisely to argue for appropriate legal remedy for victims of war crimes.

On August 8, 2010, after the referral of the matter to the Committee for investigation, the Dean of the University of the Philippines (U.P.) College of Law publicized a Statement from his faculty, claiming that the Vinuya decision was an extraordinary act of injustice and a singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. The statement said that Justice Del Castillo had a deliberate intention to appropriate the original authors work, and that the Courts decision amounted to an act of intellectual fraud by copying works in order to mislead and deceive.[5]

On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that, although relevant sentences in the Courts decision were taken from his work, he was given generic reference only in the footnote and in connection with a citation from another author (Bruno Simma) rather than with respect to the passages taken from his work. He thought that the form of referencing was inappropriate. Mr. Tams was also concerned that the decision may have used his work to support an approach to erga omnes concept (obligations owed by individual States to the community of nations) that is not consistent with what he advocated.

On August 26, 2010, the Committee heard the parties submissions in the summary manner of administrative investigations. Counsels from both sides were given ample time to address the Committee and submit their evidence. The Committee queried them on these.

Counsels for Justice Del Castillo later asked to be heard with the other parties not in attendance so they could make submissions that their client regarded as sensitive and confidential, involving the drafting process that went into the making of the Courts decision in the Vinuya case. Petitioners counsels vigorously objected and the Committee sustained the objection. After consulting Justice Del Castillo, his counsels requested the Committee to hear the Justices court researcher, whose name need not be mentioned here, explain the research work that went into the making of the decision in the Vinuya case. The Committee granted the request.

The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her grievous mistake and grief for having caused an enormous amount of suffering for Justice Del Castillo and his family.[6]

On the other hand, addressing the Committee in reaction to the researchers explanation, counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words or language in his work were taken from anothers work. Counsel invoked the Courts ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine,[7] arguing that standards on plagiarism in the academe should apply with more force to the judiciary.

After the hearing, the Committee gave the parties ten days to file their respective memoranda. They filed their memoranda in due course. Subsequently after deliberation, the Committee submitted its unanimous findings and recommendations to the Court.

The Issues

This case presents two issues:

1. Whether or not, in writing the opinion for the Court in the Vinuya case, Justice Del Castillo plagiarized the published works of authors Tams, Criddle-Descent, and Ellis.

2. Whether or not Justice Del Castillo twisted the works of these authors to make it appear that such works supported the Courts position in the Vinuya decision.

The Courts Rulings

Because of the pending motion for reconsideration in the Vinuya case, the Court like its Committee on Ethics and Ethical Standards will purposely avoid touching the merits of the Courts decision in that case or the soundness or lack of soundness of the position it has so far taken in the same. The Court will deal, not with the essential merit or persuasiveness of the foreign authors works, but how the decision that Justice Del Castillo wrote for the Court appropriated parts of those works and for what purpose the decision employed the same.

At its most basic, plagiarism means the theft of another persons language, thoughts, or ideas. To plagiarize, as it is commonly understood according to Webster, is to take (ideas, writings, etc.) from (another) and pass them off as ones own.[8] The passing off of the work of another as ones own is thus an indispensable element of plagiarism.

The Passages from Tams

Petitioners point out that the Vinuya decision lifted passages from Tams book, Enforcing Erga Omnes Obligations in International Law (2006) and used them in Footnote 69 with what the author thought was a mere generic reference. But, although Tams himself may have believed that the footnoting in this case was not an appropriate form of referencing,[9] he and petitioners cannot deny that the decision did attribute the source or sources of such passages. Justice Del Castillo did not pass off Tams work as his own. The Justice primarily attributed the ideas embodied in the passages to Bruno Simma, whom Tams himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tams article as another source of those ideas.

The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the footnoting standards of counsel for petitioners is not an ethical matter but one concerning clarity of writing. The statement See Tams, Enforcing Obligations Erga Omnes in International Law (2005) in the Vinuya decision is an attribution no matter if Tams thought that it gave him somewhat less credit than he deserved. Such attribution altogether negates the idea that Justice Del Castillo passed off the challenged passages as his own.

That it would have been better had Justice Del Castillo used the introductory phrase cited in rather than the phrase See would make a case of mere inadvertent slip in attribution rather than a case of manifest intellectual theft and outright plagiarism. If the Justices citations were imprecise, it would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing pagination, and for every technical detail of form.

The Passages from Ellis and Criddle-Descent

Petitioners also attack the Courts decision for lifting and using as footnotes, without attribution to the author, passages from the published work of Ellis. The Court made the following statement on page 27 of its decision, marked with Footnote 65 at the end:

We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited under contemporary international law. 65 xxx

Footnote 65 appears down the bottom of the page. Since the lengthy passages in that footnote came almost verbatim from Ellis article,[10] such passages ought to have been introduced by an acknowledgement that they are from that article. The footnote could very well have read:

65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International Law (2006), Mark Ellis said: The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not emerge until after World War II. In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name. (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children shall not be molested in their persons. The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT'L AGREEMENTS OF THE U.S. 78, 85. The 1863 Lieber Instructions classified rape as a crime of troop discipline. (Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INTL. L. 219, 224). It specified rape as a capital crime punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women by requiring the protection of their honour. (Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, Affirmation of the Principles of International Law recognized by the Charter of the Nrnberg Tribunal; General Assembly document A/64/Add.1 of 1946; See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established crimes against humanity as the following: CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the

Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. INTL. COMP. L. 667, 676.) However, International Military Tribunal for the Far East prosecuted rape crimes, even though its Statute did not explicitly criminalize rape. The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority. (THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 445-54 (1977). The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity. Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts. (Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946)) The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modernday international instrument to establish protections against rape for women. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.

But, as it happened, the acknowledgment above or a similar introduction was missing from Footnote 65.

Next, petitioners also point out that the following eight sentences and their accompanying footnotes appear in text on pages 30-32 of the Vinuya decision:

xxx In international law, the term jus cogens (literally, compelling law) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.71

Early strains of the jus cogens doctrine have existed since the 1700s,72 but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International Law.73 The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILCs preparation of the Vienna Convention on the Law of Treaties (VCLT).74 Though there was a consensus

that certain international norms had attained the status of jus cogens,75 the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.76 In a commentary accompanying the draft convention, the ILC indicated that the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.77 Thus, while the existence of jus cogens in international law is undisputed, no consensus exists on its substance,77 beyond a tiny core of principles and rules.78

Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descents article, A Fiduciary Theory of Jus Cogens.[11] Criddle-Descents footnotes were carried into the Vinuya decisions own footnotes but no attributions were made to the two authors in those footnotes.

The Explanation

Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillos researchers, a court-employed attorney, explained how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working draft of the decision. She said that, for most parts, she did her research electronically. For international materials, she sourced these mainly from Westlaw, an online research service for legal and law-related materials to which the Court subscribes.

In the old days, the common practice was that after a Justice would have assigned a case for study and report, the researcher would source his materials mostly from available law books and published articles on print. When he found a relevant item in a book, whether for one side of the issue or for the other, he would place a strip of paper marker on the appropriate page, pencil mark the item, and place the book on his desk where other relevant books would have piled up. He would later paraphrase or copy the marked out passages from some of these books as he typed his manuscript on a manual typewriter. This occasion would give him a clear opportunity to attribute the materials used to their authors or sources.

With the advent of computers, however, as Justice Del Castillos researcher also explained, most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in

internet websites that offer virtual libraries of books and articles. Here, as the researcher found items that were relevant to her assignment, she downloaded or copied them into her main manuscript, a smorgasbord plate of materials that she thought she might need. The researchers technique in this case is not too far different from that employed by a carpenter. The carpenter first gets the pieces of lumber he would need, choosing the kinds and sizes suitable to the object he has in mind, say a table. When ready, he would measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct his table. He would get rid of the scraps.

Here, Justice Del Castillos researcher did just that. She electronically cut relevant materials from books and journals in the Westlaw website and pasted these to a main manuscript in her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program.[12] Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in their work.

Justice Del Castillos researcher showed the Committee the early drafts of her report in the Vinuya case and these included the passages lifted from the separate articles of Criddle-Descent and of Ellis with proper attributions to these authors. But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions.

First Finding

The Court adopts the Committees finding that the researchers explanation regarding the accidental removal of proper attributions to the three authors is credible. Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.

For most senior lawyers and judges who are not computer literate, a familiar example similar to the circumstances of the present case would probably help illustrate the likelihood of such an accident happening. If researcher X, for example, happens to be interested in the inalienable character of juridical personality in connection with an assignment and if the book of the learned Civilist, Arturo M. Tolentino, happens to have been published in a website, researcher X would probably show interest in the following passage from that book:

xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.15

xxx _____________________________ 15 3 Von Tuhr 296; 1 Valverde 291.

Because the sentence has a footnote mark (#15) that attributes the idea to other sources, it is evident that Tolentino did not originate it. The idea is not a product of his intellect. He merely lifted it from Von Tuhr and Valverde, two reputable foreign authors.

When researcher X copies and pastes the above passage and its footnote into a manuscript-in-themaking in his computer, the footnote number would, given the computer program in use, automatically change and adjust to the footnoting sequence of researcher Xs manuscript. Thus, if the preceding footnote in the manuscript when the passage from Tolentino was pasted on it is 23, Tolentinos footnote would automatically change from the original Footnote 15 to Footnote 24.

But then, to be of use in his materials-gathering scheme, researcher X would have to tag the Tolentino passage with a short description of its subject for easy reference. A suitable subject description would be: The inalienable character of juridical personality.23 The footnote mark, 23 From Tolentino, which researcher X attaches to the subject tag, serves as reminder to him to attribute the passage in its final form to Tolentino. After the passage has been tagged, it would now appear like this:

The inalienable character of juridical personality.23

xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.24 xxx _____________________________ 23 From Tolentino. 24 3 Von Tuhr 296; 1 Valverde 291.

The tag is of course temporary and would later have to go. It serves but a marker to help researcher X maneuver the passage into the right spot in his final manuscript.

The mistake of Justice Del Castillos researcher is that, after the Justice had decided what texts, passages, and citations were to be retained including those from Criddle-Descent and Ellis, and when she was already cleaning up her work and deleting all subject tags, she unintentionally deleted the footnotes that went with such tagswith disastrous effect.

To understand this, in Tolentinos example, the equivalent would be researcher Xs removal during cleanup of the tag, The inalienable character of juridical personality.23, by a simple delete operation, and the unintended removal as well of the accompanying footnote (#23). The erasure of the footnote eliminates the link between the lifted passage and its source, Tolentinos book. Only the following would remain in the manuscript:

xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.43 _____________________________ 43 3 Von Tuhr 296; 1 Valverde 291.

As it happened, the Microsoft word program does not have a function that raises an alarm when original materials are cut up or pruned. The portions that remain simply blend in with the rest of the manuscript, adjusting the footnote number and removing any clue that what should stick together had just been severed.

This was what happened in the attributions to Ellis and Criddle-Descent. The researcher deleted the subject tags and, accidentally, their accompanying footnotes that served as reminder of the sources of the lifted passages. With 119 sources cited in the decision, the loss of the 2 of them was not easily detectable.

Petitioners point out, however, that Justice Del Castillos verified letter of July 22, 2010 is inconsistent with his researchers claim that the omissions were mere errors in attribution. They cite the fact that the Justice did not disclose his researchers error in that letter despite the latters confession regarding her mistake even before the Justice sent his letter to the Chief Justice. By denying plagiarism in his letter, Justice Del Castillo allegedly perjured himself and sought to whitewash the case.[13]

But nothing in the July 22 letter supports the charge of false testimony. Justice Del Castillo merely explained that there was every intention to attribute all sources whenever due and that there was never any malicious intent to appropriate anothers work as our own, which as it turns out is a true statement. He recalled how the Court deliberated upon the case more than once, prompting major revisions in the draft of the decision. In the process, (s)ources were re-studied, discussions modified, passages added or deleted. Nothing in the letter suggests a cover-up. Indeed, it did not preclude a researchers inadvertent error.

And it is understandable that Justice Del Castillo did not initially disclose his researchers error. He wrote the decision for the Court and was expected to take full responsibility for any lapse arising from its preparation. What is more, the process of drafting a particular decision for the Court is confidential, which explained his initial request to be heard on the matter without the attendance of the other parties.

Notably, neither Justice Del Castillo nor his researcher had a motive or reason for omitting attribution for the lifted passages to Criddle-Descent or to Ellis. The latter authors are highly respected professors of international law. The law journals that published their works have exceptional reputations. It did not make sense to intentionally omit attribution to these authors when the decision cites an abundance of other sources. Citing these authors as the sources of the lifted passages would enhance rather than diminish their informative value. Both Justice Del Castillo and his researcher gain nothing from the omission. Thus, the failure to mention the works of Criddle-Decent and Ellis was unquestionably due to inadvertence or pure oversight.

Petitioners of course insist that intent is not material in committing plagiarism since all that a writer has to do, to avoid the charge, is to enclose lifted portions with quotation marks and acknowledge the sources from which these were taken.[14] Petitioners point out that the Court should apply to this case the ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine.[15] They argue that standards on plagiarism in the academe should apply with more force to the judiciary.

But petitioners theory ignores the fact that plagiarism is essentially a form of fraud where intent to deceive is inherent. Their theory provides no room for errors in research, an unrealistic position considering that there is hardly any substantial written work in any field of discipline that is free of any mistake. The theory places an automatic universal curse even on errors that, as in this case, have reasonable and logical explanations.

Indeed, the 8th edition of Blacks Law Dictionary defines plagiarism as the deliberate and knowing presentation of another person's original ideas or creative expressions as one's own. [16] Thus,

plagiarism presupposes intent and a deliberate, conscious effort to steal anothers work and pass it off as ones own.

Besides, the Court said nothing in U.P. Board of Regents that would indicate that an intent to pass off anothers work as ones own is not required in plagiarism. The Court merely affirmed the academic freedom of a university to withdraw a masters degree that a student obtained based on evidence that she misappropriated the work of others, passing them off as her own. This is not the case here since, as already stated, Justice Del Castillo actually imputed the borrowed passages to others.

Second Finding

The Court also adopts the Committees finding that the omission of attributions to Criddle -Descent and Ellis did not bring about an impression that Justice Del Castillo himself created the passages that he lifted from their published articles. That he merely got those passages from others remains self-evident, despite the accidental deletion. The fact is that he still imputed the passages to the sources from which Criddle-Descent and Ellis borrowed them in the first place.

This is best illustrated in the familiar example above. After the deletion of the subject tag and, accidentally, its footnote which connects to the source, the lifted passage would appear like this:

xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.43 _____________________________ 43 3 Von Tuhr 296; 1 Valverde 291.

Although the unintended deletion severed the passages link to Tolentino, the passage remains to be attributed to Von Tuhr and Valverde, the original sources that Tolentino himself cites. The text and its footnote reference cancel out any impression that the passage is a creation of researcher X. It is the same with the passages from Criddle-Descent and Ellis. Because such passages remained attributed by the footnotes to the authors original sources, the omission of attributions to Criddle-Descent and Ellis gave no impression that the passages were the creations of Justice Del Castillo. This wholly negates the idea that he was passing them off as his own thoughts.

True the subject passages in this case were reproduced in the Vinuya decision without placing them in quotation marks. But such passages are much unlike the creative line from Robert Frost,[17] The woods are lovely, dark, and deep, but I have promises to keep, and miles to go before I sleep, and miles to go before I sleep. The passages here consisted of common definitions and terms, abridged history of certain principles of law, and similar frequently repeated phrases that, in the world of legal literature, already belong to the public realm.

To paraphrase Bast and Samuels,[18] while the academic publishing model is based on the originality of the writers thesis, the judicial system is based on the doctrine ofstare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from.

Third Finding

Petitioners allege that the decision twisted the passages from Tams, Criddle-Descent, and Ellis. The Court adopts the Committees finding that this is not so. Indeed, this allegation of twisting or misrepresentation remains a mystery to the Court. To twist means to distort or pervert the meaning of.[19] For example, if one lifts the lyrics of the National Anthem, uses it in his work, and declares that Jose Palma who wrote it did not love his country, then there is twisting or misrepresentation of what the anthems lyrics said. Here, nothing in the Vinuya decision said or implied that, based on the lifted passages, authors Tams, Criddle-Descent, and Ellis supported the Courts conclusion that the Philippines is not under any obligation in international law to espouse Vinuya et al.s claims.

The fact is that, first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible for any person reading the decision to connect the same to the works of those authors as to conclude that in writing the decision Justice Del Castillo twisted their intended messages. And, second, the lifted passages provided mere background facts that established the state of international law at various stages of its development. These are neutral data that could support conflicting theories regarding whether or not the judiciary has the power today to order the Executive Department to sue another country or whether the duty to prosecute violators of international crimes has attained the status of jus cogens.

Considering how it was impossible for Justice Del Castillo to have twisted the meaning of the passages he lifted from the works of Tams, Criddle-Descent, and Ellis, the charge of twisting or misrepresentation against him is to say the least, unkind. To be more accurate, however, the charge is reckless and obtuse.

No Misconduct

On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action.[20] This is not the case here. Justice Del Castillos acts or omissions were not shown to have been impelled by any of such disreputable motives.[21] If the rule were otherwise, no judge or justice, however competent, honest, or dedicated he may be, can ever hope to retire from the judiciary with an unblemished record.[22]

No Inexcusable Negligence

Finally, petitioners assert that, even if they were to concede that the omission was the result of plain error, Justice Del Castillo is nonetheless guilty of gross inexcusable negligence. They point out that he has full control and supervision over his researcher and should not have surrendered the writing of the decision to the latter.[23]

But this assumes that Justice Del Castillo abdicated the writing of the Vinuya decision to his researcher, which is contrary to the evidence adduced during the hearing. As his researcher testified, the Justice set the direction that the research and study were to take by discussing the issues with her, setting forth his position on those issues, and reviewing and commenting on the study that she was putting together until he was completely satisfied with it.[24] In every sense, Justice Del Castillo was in control of the writing of the report to the Court, which report eventually became the basis for the decision, and determined its final outcome.

Assigning cases for study and research to a court attorney, the equivalent of a law clerk in the United States Supreme Court, is standard practice in the high courts of all nations. This is dictated by necessity. With about 80 to 100 cases assigned to a Justice in our Court each month, it would be truly senseless for him to do all the studies and research, going to the library, searching the internet, checking footnotes, and watching the punctuations. If he does all these by himself, he would have to allocate at least one to two weeks of work for each case that has been submitted for decision. The wheels of justice in the Supreme Court will grind to a halt under such a proposition.

What is important is that, in this case, Justice Del Castillo retained control over the writing of the decision in the Vinuya case without, however, having to look over his researchers shoulder as she cleaned up her draft report to ensure that she hit the right computer keys. The Justices researcher was

after all competent in the field of assignment given her. She finished law from a leading law school, graduated third in her class, served as Editor-in Chief of her schools Law Journal, and placed fourth in the bar examinations when she took it. She earned a masters degree in International Law and Human Rights from a prestigious university in the United States under the Global-Hauser program, which counsel for petitioners concedes to be one of the top post graduate programs on International Law in the world. Justice Del Castillo did not exercise bad judgment in assigning the research work in the Vinuya case to her.

Can errors in preparing decisions be prevented? Not until computers cease to be operated by human beings who are vulnerable to human errors. They are hypocrites who believe that the courts should be as error-free as they themselves are.

Incidentally, in the course of the submission of petitioners exhibits, the Committee noted that petitioners Exhibit J, the accusing statement of the Faculty of the U.P. College of Law on the allegations of plagiarism and misinterpretation, was a mere dummy. The whole of the statement was reproduced but the signatures portion below merely listed the names of 38 faculty members, in solid rows, with the letters Sgd or signed printed beside the names without exception. These included the name of retired Supreme Court Justice Vicente V. Mendoza, a U.P. professor.

Because the Committee declined to admit a mere dummy of Exhibit J, it directed Atty. Roque to present the signed copy within three days of the August 26 hearing.[25] He complied. As it turned out, the original statement was signed by only a minority of the faculty members on the list. The set of signatories that appeared like solid teeth in the dummy turned out to be broken teeth in the original. Since only 37 out of the 81 on the list signed the document, it does not appear to be a statement of the Faculty but of just some of its members. And retired Justice V. V. Mendoza did not sign the statement, contrary to what the dummy represented. The Committee wondered why the Dean submitted a dummy of the signed document when U.P. has an abundance of copying machines.

Since the above circumstances appear to be related to separate en banc matter concerning the supposed Faculty statement, there is a need for the Committee to turn over the signed copy of the same to the en banc for its consideration in relation to that matter.

WHEREFORE, in view of all of the above, the Court:

1. DISMISSES for lack of merit petitioner Vinuya, et al.s charges of plagiarism, twisting of cited materials, and gross neglect against Justice Mariano C. del Castillo;

2. DIRECTS the Public Information Office to send copies of this decision to Professors Evan J. Criddle and Evan Fox-Descent, Dr. Mark Ellis, and Professor Christian J. Tams at their known addresses;

3. DIRECTS the Clerk of Court to provide all court attorneys involved in legal research and reporting with copies of this decision and to enjoin them to avoid editing errors committed in the Vinuya case while using the existing computer program especially when the volume of citations and footnoting is substantial; and

4. Finally, DIRECTS the Clerk of Court to acquire the necessary software for use by the Court that can prevent future lapses in citations and attributions.

Further, the Court DIRECTS the Committee on Ethics and Ethical Standards to turn over to the en banc the dummy as well as the signed copy of petitioners Exhibit J, entitled Restoring Integrity, a statement by the Faculty of the University of the Philippines College of Law for the en bancs consideration in relation to the separate pending matter concerning that supposed Faculty statement.

SO ORDERED.

EN BANC

OFFICE OF THE COURT ADMINISTRATOR, Petitioner,

A.M. No. RTJ-99-1460

- versus -

JUDGE FLORENTINO V. FLORO, JR., Respondent. x------------------------ x Re: RESOLUTION DATED 11 MAY 1999 OF JUDGE

FLORENTINO V. FLORO, JR. x------------------------x LUZ ARRIEGO, Petitioner, A.M. No. 99-7-273-RTC

A.M. No. RTJ-06-1988 (Formerly A.M. OCA IPI No. 99-812-RTJ)

Present:

PANGANIBAN, C.J., PUNO, - versus QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, AZCUNA, JUDGE FLORENTINO V. FLORO, JR., Respondent. TINGA, CHICO-NAZARIO, and GARCIA, JJ.

Promulgated:

March 31, 2006 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Equity does not demand that its suitors shall have led blameless lives.

Justice Brandeis, Loughran v. Loughran[1]

THE CASES

The First Case: A.M. No. RTJ-99-1460 (Office of the Court Administrator v. Judge Florentino V. Floro, Jr.)

It was in 1995 that Atty. Florentino V. Floro, Jr. first applied for judgeship. A pre-requisite psychological evaluation on him then by the Supreme Court Clinic Services (SC Clinic) revealed (e)vidence of ego disintegration and developing psychotic process. Judge Floro later voluntarily withdrew his application. In June 1998, when he applied anew, the required psychological evaluation exposed problems with self-esteem, mood swings, confusion, social/interpersonal deficits, paranoid ideations, suspiciousness, and perceptual distortions. Both 1995 and 1998 reports concluded that Atty. Floro was unfit to be a judge.

Because of his impressive academic background, however, the Judicial and Bar Council (JBC) allowed Atty. Floro to seek a second opinion from private practitioners. The second opinion appeared favorable thus paving the way to Atty. Floros appointment as Regional Trial Court (RTC) Judge of Branch 73, Malabon City, on 4 November 1998.

Upon Judge Floros personal request, an audit on his sala was conducted by the Office of the Court Administrator (OCA) from 2 to 3 March 1999.[2]

After conducting the audit, the audit team, led by Atty. Mary Jane Dacarra-Buenaventura, reported its findings to erstwhile Court Administrator, Alfredo L. Benipayo, who submitted his own report/memorandum[3] to then Chief Justice Hilario G. Davide, Jr. dated 13 July 1999 recommending, among other things, that his report be considered as an administrative complaint against Judge Floro and that Judge Floro be subjected to an appropriate psychological or mental examination. Court Administrator Benipayo recommended as well that Judge Floro be placed under preventive suspension for the duration of the investigation against him.

In a Resolution[4] dated 20 July 1999, the Court en banc adopted the recommendations of the OCA, docketing the complaint as A.M. No. RTJ-99-1460, in view of the commission of the following acts or omissions as reported by the audit team:

(a) The act of circulating calling cards containing self-laudatory statements regarding qualifications and for announcing in open court during court session his qualification in violation of Canon 2, Rule 2.02, Canons of Judicial Conduct;

(b)

For allowing the use of his chambers as sleeping quarters;

(c) For rendering resolutions without written orders in violation of Rule 36, Section 1, 1997 Rules of Procedures;

(d) For his alleged partiality in criminal cases where he declares that he is pro-accused which is contrary to Canon 2, Rule 2.01, Canons of Judicial Conduct;

(e) For appearing and signing pleadings in Civil Case No. 46-M-98 pending before Regional Trial Court, Branch 83, Malolos, Bulacan in violation of Canon 5, Rule 5.07, Canons of Judicial Conduct which prohibits a judge from engaging in the private practice of law;

(f) For appearing in personal cases without prior authority from the Supreme Court and without filing the corresponding applications for leaves of absence on the scheduled dates of hearing;

(g) For proceeding with the hearing on the Motion for Release on Recognizance filed by the accused without the presence of the trial prosecutor and propounding questions in the form of examination of the custodian of the accused;

(h) For using/taking advantage of his moral ascendancy to settle and eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in the guise of settling the civil aspect of the case, by persuading the private complainant and the accused to sign the settlement even without the presence of the trial prosecutor;

(i) For motu proprio and over the strong objection of the trial prosecutor, ordering the mental and physical examination of the accused based on the ground that the accused is mahina ang pick-up;

(j) For issuing an Order on 8 March 1999 which varies from that which he issued in open court in Criminal Case No. 20385-MN, for frustrated homicide;

(k) For violation of Canon 1, Rule 1.01 Code of Judicial Conduct when he openly criticized the Rules of Court and the Philippine justice system;

(l)

For the use of highly improper and intemperate language during court proceedings;

(m)

For violation of Circular No. 13[5] dated 1 July 1987.

Per the same resolution of the Court, the matter was referred to Retired Court of Appeals Justice Pedro Ramirez (consultant, OCA) for investigation, report and recommendation within 60 days from receipt. Judge Floro was directed to comment within ten days from receipt of the resolution and to subject himself to an appropriate psychological or mental examination to be conducted by the proper office of the Supreme Court or any duly authorized medical and/or mental institution. In the same breath, the Court resolved to place Judge Floro under preventive suspension for the duration of the investigation of the administrative charges against him. He was barely eight months into his position.

On 20 August 1999, Judge Floro submitted a Verified Comment where he set forth both affirmative and negative defenses[6] while he filed his Answer/Compliance on 26 August 1999.

On 3 March 2000, Judge Floro moved for the provisional/final dismissal of his case for failure to prosecute.[7] However, on 21 March 2000, he presented himself as his first witness in the hearing conducted by Justice Ramirez.[8] Subsequently, on 7 July 2000, Judge Floro filed a Petition for Inhibition/Disqualification against Justice Ramirez as investigator[9] which was denied by Justice Ramirez in an Order dated 11 July 2000.[10] Judge Floros motion for reconsideration[11] suffered the same fate.[12] On 27 July 2000, Judge Floro submitted the question of Justice Ramirezs inhibition/disqualification to this Court.[13] On 8 August 2000, the Court ruled against the inhibition of Justice Ramirez.[14]

On 11 September 2000, the OCA, after having been ordered by the Court to comment on Judge Floros motion to dismiss,[15] recommended that the same should be denied.

Judge Floro presented his last witness on 6 March 2001.[16] The day after, Justice Ramirez came out with a Partial Report recommending the dismissal of Judge Floro from office by reason of insanity which renders him incapable and unfit to perform the duties and functions of Judge of the Regional Trial Court, National Capital Judicial Region, Malabon, Metro Manila, Branch 73.[17]

In the meantime, throughout the investigation of the 13 charges against him and even after Justice Ramirez came out with his report and recommendation on 7 March 2001, Judge Floro had been indiscriminately filing cases against those he perceived to have connived to boot him out of office.

A list of the cases Judge Floro filed in the wake of his 20 July 1999 preventive suspension follows:

1. OCA IPI No. 00-07-OCA against Atty. Mary Jane Dacarra-Buenaventura, Team Leader, Judicial Audit Team, Office of the Court Administrator[18]

2. OCA IPI No. 00-933-RTJ against Judge Benjamin Aquino, Jr., Regional Trial Court, Branch 72, Malabon City[19]

3. Jr.[20]

AC No. 5286 against Court Administrator Alfredo L. Benipayo and Judge Benjamin Aquino,

4. AC No. CBD-00-740 against Thelma C. Bahia, Court Management Office, Atty. Mary Jane Dacarra-Buenaventura, Atty. II, Court Management Office, both of the Office of the Court Administrator and Atty. Esmeralda G. Dizon, Branch Clerk of Court, Branch 73, Malabon[21]

5. AC No. 6282 (CPL No. C-02-0278) against former Court Administrator Justice Alfredo L. Benipayo and (Ret.) Justice Pedro A. Ramirez, Consultant, Office of the Court Administrator[22]

6.

A.M. No. 03-8-03-0 against (Ret.) Justice Pedro A. Ramirez[23]

7.

A.C. No. 6050 against (Ret.) Justice Pedro A. Ramirez[24]

On 1 February 2006, Judge Floro moved that the cases he filed, now totaling seven, be dismissed.[25] On 14 February 2006, the Court granted the motion to dismiss.[26]

The Second Case: A.M. No. RTJ-06-1988(Luz Arriego v. Judge Florentino V. Floro, Jr.)

This charge is likewise the subject matter of charge h in A.M. No. RTJ-99-1460: (f)or using/taking advantage of his moral ascendancy to settle and eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in the guise of settling the civil aspect of the case, by persuading the private complainant and the accused to sign the settlement even without the presence of the trial prosecutor. The complainant Luz Arriego is the mother of the private complainant in Criminal Case No. 20385-MN.

On 28 June 2001, Arriego testified, while court stenographer Jocelyn Japitenga testified on 16 July 2001. On 31 July 2001, Arriego filed her Formal Offer of Evidence which was opposed by Judge Floro on 21 August 2001. On 5 September 2001, Judge Floro testified on his behalf while Atty. Galang testified against him on 4 October 2001. On 16 October 2001, Judge Floro filed a Memorandum in this case.[27]

The Third Case: A.M. No. 99-7-273-RTC (Re: Resolution Dated 11 May 1999 of Judge Florentino V. Floro, Jr.)

As can be gathered from the title, this case concerns a resolution issued by Judge Floro on 11 May 1999 in Special Proceeding Case No. 315-MN In Re: Petition To Be Admitted A Citizen Of The Philippines, Mary Ng Nei, Petitioner. The resolution disposed of the motions for voluntary inhibition of Judge Floro and the reconsideration of the order denying the petition for naturalization filed by petitioner in that case, Mary Ng Nei.

This resolution found its way to the OCA through a letter written by Atty. David S. Narvasa, the petitioners counsel.[28] The OCA, through Court Administrator Benipayo, made the following evaluation:

In the subject resolution, Judge Floro, Jr. denied the motion for inhibition and declared it as null and void. However, he ordered the raffling of the case anew (not re-raffle due to inhibition) so that the petitioner, Mary Ng Nei, will have a chance to have the case be assigned to other judges through an impartial raffle.

When Judge Floro, Jr. denied the motion for inhibition, he should have continued hearing and taking cognizance of the case. It is improper for him to order the raffle of the case anew as this violates Administrative Circular No. 1 (Implementation of Sec. 12, Art. XVIII of the 1987 Constitution) dated January 28, 1988 which provides to wit:

8. Raffle of Cases:

xxxx

8.3 Special raffles should not be permitted except on verified application of the interested party who seeks issuance of a provisional remedy and only upon a finding by the Executive Judge that unless the special raffle is conducted, irreparable damage shall be suffered by the applicant. The special raffle shall be conducted by at least two judges in a multiple-sala station.

x x x x

Based on the foregoing, a judge may not motu proprio order the special raffle of a case since such is only allowed upon a verified application of the interested party seeking a provisional remedy and only upon the Executive Judges finding that if a special raffle is not conducted, the applicant will suffer irreparable damage. Therefore, Judge Floro, Jr.s order is contrary to the above-mentioned Administrative Circular.

Moreover, it is highly inappropriate for Judge Floro, Jr. to even mention in his resolution that Justice Regino C. Hermosisima, Jr. is his benefactor in his nomination for judgeship. It is not unusual to hear a judge who speaks highly of a padrino (who helped him get his position). Such remark even if made as an expression of deep gratitude makes the judge guilty of creating a dubious impression about his integrity and independence. Such flaunting and expression of feelings must be suppressed by the

judges concerned. A judge shall not allow family, social, or other relationships to influence judicial conduct or judgment (Canon 2, Rule 2.03, Code of Judicial Conduct).

The merits of the denial of the motion for inhibition and the ruling on the motion for reconsideration are judicial matters which this Office has no authority to review. The remedy is judicial, not administrative.[29]

The OCA thus recommended that Judge Floro comment on (a) his act of ordering the raffle of the case in violation of Administrative Circular No. 1; and (b) his remark on page 5 of the subject resolution that Justice Hermosisima, Jr. x x x helped undersigned so much, in the JBC, regarding his nomination x x x.

In a Resolution dated 17 August 1999, the Court en banc adopted the recommendations of the OCA.[30] Judge Floro, through his counsel, filed his Comment on 22 October 1999[31] which was noted by this Court on 7 December 1999. On 11 January 2000, Judge Floro filed a Formal Offer of Evidence which this Court, in a resolution dated25 January 2000, referred to Justice Ramirez for inclusion in his report and recommendation.

For the record, the OCA is yet to come up with its report and recommendation in this case as well as in the second case (i.e., A.M. No. RTJ-06-1988). Thus, in a resolution dated 14 February 2006, the Court directed Judge Floro as well as the other parties in these two cases to inform the Court whether or not they are willing to submit A.M. RTJ-06-1988 and A.M. No. 99-7-273-RTC for decision on the basis of the pleadings filed and the evidence so far submitted by them or to have the decision in A.M. No. RTJ99-1460 decided ahead of the two. On 20 February 2006, the OCA, thru Court Administrator Presbitero J. Velasco, Jr., manifested its willingness to submit A.M. No. 99-7-273-RTC for resolution based on the pleadings and the evidence submitted therein. Complainant Luz Arriego in A.M. No. RTJ-06-1988 likewise informed this Court, in a Letter dated 28 February 2006, her willingness to submit her case for decision based on the pleadings already submitted and on the evidence previously offered and marked. On the other hand, on 3 March 2006, Judge Floro manifested his preference to have A.M. No. RTJ-99-1460 decided ahead of A.M. RTJ-06-1988 and A.M. No. 99-7-273-RTC.

In the interest of orderly administration of justice, considering that these are consolidated cases, we resolve to render as well a consolidated decision.

But first, the ground rules: Much has been said across all fronts regarding Judge Floros alleged mental illness and its effects on his duties as Judge of a Regional Trial Court. For our part, figuring out whether

Judge Floro is indeed psychologically impaired and/or disabled as concluded by the investigator appointed by this Court is frankly beyond our sphere of competence, involving as it does a purely medical issue; hence, we will have to depend on the findings of the mental health professionals who interviewed/analyzed Judge Floro. Our job is simply to wade through the evidence, filter out the irrelevant and the irreverent in order to determine once and for all if Judge Floro is indeed guilty of the charges against him. If the evidence makes out a case against Judge Floro, the next issue is to determine the appropriate penalty to be imposed.

Finally, we will have to determine whether Judge Floro acted with an evil mind or because of a psychological or mental incapacity. Upon the resolution of this question hinges the applicability of equity.

As an aside, it bears pointing out that some of the charges (c and g, h and j, e and f) will be jointly discussed as they had likewise been jointly discussed by the OCA. These charges involve common facts and to treat them separately will be superfluous.

DISCUSSION

As alleged and as proven, the 13 specified charges do not warrant the supreme penalty of dismissal against Judge Floro

(a) Re: Charge of circulating calling cards containing self-laudatory statements regarding qualifications AND for announcing in open court during court session his qualifications in violation of Canon 2, Rule 2.02, Canons of Judicial Conduct

As narrated by the audit team, Judge Floro was circulating calling cards bearing his name as the Presiding Judge of RTC, Branch 73, Malabon City, and indicating therein that he is a bar exams topnotcher (87.55%) and with full second honors from the Ateneo de Manila University, A.B. and LL.B.[32] The audit team likewise reported that: (b)efore the start of court session, Judge Floro is introduced as a private law practitioner, a graduate of Ateneo de Manila University with second honors, and a bar topnotcher during the 1983 Bar Examinations with an average score of 87.55%. Afterwards, a reading of the Holy Bible, particularly the Book of Revelation according to Saint John, was made. The people in the courtroom were given the opportunity to ask Judge Floro questions on the matter read. No questions were asked; hence the session commenced.[33]

Judge Floro argues that, per commentary of Justice Ruperto G. Martin,[34] the use of professional cards containing the name of the lawyer, his title, his office and residence is not improper and that the

word title should be broad enough to include a Judges legal standing in the bar, his honors duly earned or even his Law School. Moreover, other lawyers do include in their calling cards their former/present titles/positions like President of the Jaycees, Rotary Club, etc., so where then does one draw the line? Finally, Judge Floro argues that his cards were not being circulated but were given merely as tokens to close friends or by reciprocity to other callers considering that common sense dictates that he is not allowed by law to seek other professional employment.

As to the charge that he had been announcing in open court his qualifications, Judge Floro counters that it was his branch clerk of court, Atty. Esmeralda Galang-Dizon, who suggested that during his initial court session, she would briefly announce his appointment with an introduction of his school, honors, bar rating and law practice. Naively, Judge Floro agreed as the introduction was done only during the first week of his assumption into office.

Canon 2, Rule 2.02 of the Code of Judicial Conduct says in no uncertain terms that a judge should not seek publicity for personal vainglory. A parallel proscription, this time for lawyers in general, is found in Rule 3.01 of the Code of Professional Responsibility: a lawyer shall no t use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. This means that lawyers and judges alike, being limited by the exacting standards of their profession, cannot debase the same by acting as if ordinary merchants hawking their wares. As succinctly put by a leading authority in legal and judicial ethics, (i)f lawyers are prohibited from x x x using or permitting the use of any undignified or self-laudatory statement regarding their qualifications or legal services (Rule 3.01, Code of Professional Responsibility), with more reasons should judges be prohibited from seeking publicity for vanity or self-glorification. Judges are not actors or actresses or politicians, who thrive by publicity.[35]

The question, therefore, is: By including self-laudatory details in his professional card, did Judge Floro violate Canon 2, Rule 2.02 of the Code of Judicial Conduct?

In Ulep v. Legal Clinic, Inc.,[36] we explained that the use of an ordinary and simple professional card by lawyers is permitted and that the card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. In herein case, Judge Floros calling cards cannot be considered as simple and ordinary. By including therein the honors he received from his law school with a claim of being a bar topnotcher, Judge Floro breached the norms of simplicity and modesty required of judges.

Judge Floro insists, however, that he never circulated his cards as these were just given by him as tokens and/or only to a few who requested the same.[37] The investigation by Justice Ramirez into the matter reveals otherwise. An eye-witness from the OCA categorically stated that Judge Floro circulated these

cards.[38] Worse, Judge Floros very own witness, a researcher from an adjoining branch, testified that Judge Floro gave her one of these cards.[39]

As this charge involves a violation of the Code of Judicial Conduct, it should be measured against Rule 140 of the Rules of Court as amended by A.M. No. 01-8-10-SCbeing more favorable to respondent Judge Floro. Rule 140, before its amendment, automatically classified violations of the Code of Judicial Conduct as serious charges. As amended, a violation of the Code of Judicial Conduct may amount to gross misconduct, which is a serious charge, or it may amount to simple misconduct, which is a less serious charge or it may simply be a case of vulgar and/or unbecoming conduct which is a light charge.

Misconduct is defined as wrong or improper conduct while gross connotes something out of all measure; beyond allowance; not to be excused; flagrant; shameful.[40] For serious misconduct to exist, the judicial act complained of should be corrupt or inspired by an intention to violate the law or a persistent disregard of well-known legal rules.[41]

With the foregoing as yardstick, we find the act of Judge Floro in circulating calling cards containing selflaudatory statements constitutive of simple misconduct in violation of Canon 2, Rule 2.02 of the Code of Judicial Conduct as it appears that Judge Floro was not motivated by any corrupt motive but, from what we can see from the evidence, a persistent and unquenchable thirst for recognition. Concededly, the need for recognition is an all too human flaw and judges do not cease to be human upon donning the judicial robe. Considering, however, the proscription against judges seeking publicity for personal vainglory, they are held to a higher standard as they must act within the confines of the code they swore to observe.

As to the charge that Judge Floro, through his branch clerk of court, had been announcing in open court his qualifications, we find that this is likewise violative of Canon 2, Rule 2.02 of the Code of Judicial Conduct as it smacks of unnecessary publicity. Judges should not use the courtroom as platform for announcing their qualifications especially to an audience of lawyers and litigants who very well might interpret such publicity as a sign of insecurity. Verily, the public looks upon judges as the bastion of justice confident, competent and true. And to discover that this is not so, as the judge appears so unsure of his capabilities that he has to court the litigants and their lawyers approval, definitely erodes public confidence in the judiciary.

As it is not disputed, however, that these announcements went on for only a week, Judge Floro is guilty of simple misconduct only.

(b)

Re: Charge of allowing the use of his chambers as sleeping quarters

The audit team observed that inside Judge Floros chamber[s], there is a folding bed with cushion located at the right corner of the room. A man, who was later identified as Judge Floros driver, was sleeping. However, upon seeing the audit team, the driver immediately went out of the room.[42]

Judge Floro contends that this charge is without legal or factual basis. The man the audit team saw sleeping on his folding bed, J. Torralba, was Judge Floros aide or alalay whom he allows to rest from time to time (in between periods and especially during court sessions) for humanitarian reasons. J. Torralba was not sleeping during that time that the audit team was in Branch 73 as he immediately left when he saw the members thereof.

This charge must fail as there is nothing inherently improper or deplorable in Judge Floro having allowed another person to use his folding bed for short periods of time during office hours and while there is no one else in the room. The situation would have been different if there had been any allegation of misuse or abuse of government funds and/or facilities such as in the case of Presado v. Genova[43] wherein Judge Genova was found guilty of serious misconduct and conduct prejudicial to the best interest of the service when he and his family used his chambers as residential quarters, with the provincial government paying for the electrical bills.

Be that as it may, it does not augur well for a new judge to allow such familiarity from his aide as this becomes fodder for gossip as what had apparently happened in this case. Judge Floro should have been aware of and attuned to the sensibilities of his staff who were understandably uncomfortable with the uncommon arrangement of a judge allowing his aide easy access to his folding bed.

(c) Re: Charge of rendering resolutions without written orders in violation of Rule 36, Section 1, 1997 Rules of Procedure

(g) Re: Charge of proceeding with the hearing on the Motion for Release on Recognizance filed by the accused without the presence of the trial prosecutor and propounding questions in the form of examination of the custodian of the accused

The memorandum report reads: c. It was reported by the staff of Branch 73 that regardless of the absence of the trial prosecutor, Judge Floro, Jr. still proceeded with the hearing of the following matters:

(c-1) Motion for Release on Recognizance filed by the accused, in Criminal Cases Nos. 20384, 20371, 20246 and 20442 entitled People vs. Luisito Beltran, People vs. Emma Alvarez, et al., People vs. Rowena Camino, and People vs. John Richie Villaluz, respectively. In the hearing of these motions, Judge Floro, Jr. propounded questions (in a form of direct examination) to the custodian of the accused without the accused being sworn by the administering officer. (Note: initially, Judge Floro, Jr. ordered the Branch Clerk of Court Dizon to place the accused under oath prior to the start of his questions. However, COC Dizon refused). The hearing on the aforesaid motions is an offshoot of a previous hearing wherein the accused had pleaded guilty to a lesser offense. After the reading of the sentence, Judge Floro, Jr. would automatically inform the accused that they are qualified to apply for probation. In fact, Judge Floro, Jr. would even instruct his staff to draft the application in behalf of the accused so that a motion for release on recognizance will immediately be heard and be consequently granted. As appearing in the minutes of the hearing (attached herewith as Annexes 3 to 6), the custodians of the accused are either a barangay kagawad, barangay tanod or a member of the lupong tagapamayapa. Likewise, no written order granting the motion for release on recognizance is being issued by Judge Floro, Jr. since according to him neither rules nor circular mandates the issuance of a written order. Instead, after granting the motion, Judge Floro, Jr. just requires the parties to sign the minutes of the session. Photocopies of the minutes dated March 4, 1999 in Criminal Cases Nos. 20384MN; 20373-MN; and 20371-MN are hereto attached as Annexes 3 to 5.

On March 11, 1999, in Criminal Cases Nos. 20426-MN and 20442-MN, Judge Floro, Jr. granted a similar motion without issuing a written order. Copies of the minutes are hereto attached as annexes 6 to 7.[44]

In his Verified Comment, Judge Floro argues that he never violated any rule of procedure with respect to the cases mentioned by the Audit Team, asserting that

Contrary to the stance of the TEAM, Sec. 1 of Rule 36, Rules of Court refers only to final and not interlocutory orders. Only final orders and judgments are promulgated, rendered and entered.

xxxx

Applying the foregoing well-settled doctrines of law to the case at bar, herein respondent faithfully complied with the requirements of Sec. 7 of P.D. 968 as amended, regarding the applications for release on recognizance, thus:

a. The application for release on recognizance, although captioned as MOTION FOR RELEASE ON RECOGNIZANCE, is primarily governed by Sec. 7 of P.D. 968, a Special Law on Probation.

b. Any Application for Release on Recognizance, is given due course/taken cognizance of by respondent, if on its face, the same bears the rubber stamp mark/receipt by the Office of the City/Public Prosecutor.

c. The consistent practice both in RTC, METRO MANILA (all courts), especially in RTC, MALABON, and in Malolos, Bulacan (where respondent practiced from 1985-1998 almost 14 years), [and especially the practice of former Judge A. V. Cabigao, Br. 73, RTC, Malabon, Metro Manila], is to interview the custodian, in the chambers, regarding his being a responsible member of the community where the accused reside/resides; the questions propounded are in the form of direct and even cross examination questions.

d. The accused is not required to be placed on the witness stand, since there is no such requirement. All that is required, is to inform the accused regarding some matters of probation (optional) such as whether he was sentenced previously by a Court, whether or not he has had previous cases, etc.

e. Even if RTC Judges in Malabon do not conduct Court hearings on application for release on recognizance, respondent, for caution in most of the applications, included the interview/hearing on the applications for release on recognizance, during criminal trial dates, where a fiscal/trial prosecutor is available; at other times, the hearing is held in the chambers.[45]

The explanation given by Judge Floro betrays his liability for ignorance of the rules on probation under Presidential Decree No. 968 (Probation Law), as amended. Contrary to his remonstrations, the release of an accused on recognizance entails more than a cursory interview of the custodian and the applicant. Under the Probation Law,[46] and as we explained in Poso v. Judge Mijares,[47] it is incumbent upon the Judge hearing the application to ascertain first that the applicant is not a disqualified offender as (p)utting the discharge of the accused on hold would have allowed [the judge] more time to pass upon the request for provisional liberty.

Moreover, from Judge Floros explanations, it would seem that he completely did away with the requirement for an investigation report by the probation officer. Under the Probation Law, the accuseds temporary liberty is warranted only during the period for awaiting the submission of the

investigation report on the application for probation and the resolution thereon.[48] As we explained in Poso v. Judge Mijares[49]:

It must be stressed that the statutory sequence of actions, i.e., order to conduct case study prior to action on application for release on recognizance, was prescribed precisely to underscore the interim character of the provisional liberty envisioned under the Probation Law. Stated differently, the temporary liberty of an applicant for probation is effective no longer than the period for awaiting thesubmission of the investigation report and the resolution of the petition, which the law mandates as no more than sixty (60) days to finish the case study and report and a maximum of fifteen (15) days from receipt of the report for the trial judge to resolve the application for probation. By allowing the temporary liberty of the accused even before the order to submit the case study and report, respondent Judge unceremoniously extended the pro tem discharge of the accused to the detriment of the prosecution and the private complainants. (Emphasis supplied)

As to the argument of Judge Floro that his Orders for the release of an accused on recognizance need not be in writing as these are duly reflected in the transcript of stenographic notes, we refer to Echaus v. Court of Appeals[50] wherein we held that no judgment, or order whether final or interlocutory, has juridical existence until and unless it is set down in writing, signed and promulgated, i.e., delivered by the Judge to the Clerk of Court for filing, release to the parties and implementation. Obviously, then, Judge Floro was remiss in his duties as judge when he did not reduce into writing his orders for the release on recognizance of the accused in Criminal Cases No. 20384, 20371, 202426 and 20442 entitled, People v. Luisito Beltran, People v. Emma Alvarez, et al., People v. Rowena Camino, and People v. John Richie Villaluz.[51] From his explanation that such written orders are not necessary, we can surmise that Judge Floros failure was not due to inadvertence or negligence on his part but to ignorance of a procedural rule.

In fine, we perceive three fundamental errors in Judge Floros handling of probation cases. First, he ordered the release on recognizance of the accused without the presence of the prosecutor thus depriving the latter of any opportunity to oppose said release. Second, Judge Floro ordered the release without first requiring the probation officer to render a case study and investigation report on the accused. Finally, the order granting the release of the accused on recognizance was not reduced into writing.

It would seem from the foregoing that the release of the accused on recognizance, as well as his eventual probation, was already a done deal even before the hearing on his application as Judge Floro took up the cudgels for the accused by instructing his staff to draft the application for probation. This, Judge Floro did not deny. Thus, we agree in the observation of the audit team that Judge Floro, as a matter of policy, had been approving applications for release on recognizance hastily

and without observing the requirements of the law for said purpose. Verily, we having nothing against courts leaning backward in favor of the accused; in fact, this is a salutary endeavor, but only when the situation so warrants. In herein case, however, we cannot countenance what Judge Floro did as the unsolicited fervor to release the accused significantly deprived the prosecution and the private complainants of their right to due process.[52]

Judge Floros insistence that orders made in open court need not be reduced in writing constitutes gross ignorance of the law. Likewise, his failure to follow the basic rules on probation, constitutes gross ignorance of the law.[53]

Verily, one of the fundamental obligations of a judge is to understand the law fully and uphold it conscientiously.[54] When the law is sufficiently basic, a judge owes it to his office to know and simply apply it for anything less is constitutive of gross ignorance of the law.[55] True, not every judicial error bespeaks ignorance of the law and that, if committed in good faith, does not warrant administrative sanctions.[56] To hold otherwise would be nothing short of harassing judges to take the fantastic and impossible oath of rendering infallible judgments.[57] This rule, however, admits of an exception as good faith in situations of fallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principle evident and as to be beyond permissible margins of error.[58] Thus, even if a judge acted in good faith but his ignorance is so gross, he should be held administratively liable.[59]

(d) RE: Charge of partiality in criminal cases where he declared that he is pro-accused which is contrary to Canon 2, Rule 2.01, Canons of Judicial Conduct

The audit team reported that Judge Floro relayed to the members thereof that in criminal cases, he is always pro-accused particularly concerning detention prisoners and bonded accused who have to continually pay for the premiums on their bonds during the pendency of their cases.

Judge Floro denies the foregoing charge. He claims that what he did impart upon Atty. Buenaventura was the need for the OCA to remedy his predicament of having 40 detention prisoners and other bonded accused whose cases could not be tried due to the lack of a permanent prosecutor assigned to his sala. He narrated as well to Atty. Buenaventura the sufferings of detention prisoners languishing in the Malabon/Navotas jail whose cases had not been tried during the vacancy of his sala from February 1997 to 5 November 1998. At any rate, Judge Floro submits that there is no single evidence or proof submitted by any litigant or private complainant that he sided with the accused.

Atty. Dizon, Judge Floros Clerk of Court, on the other hand, categorically stated under oath that Judge Floro, during a staff meeting, admitted to her and the staff of Branch 73 and in the presence of his Public

Attorneys Office (PAO) lawyer that he is pro-accused for the reason that he commiserated with them especially those under detention as he, himself, had been accused by his brother and sister-in-law of so many unfounded offenses.[60]

Between the two versions, the testimony of Atty. Dizon is more credible especially since it is corroborated by independent evidence,[61] e.g., Judge Floros unwarranted eagerness in approving application for release on recognizance as previously discussed.

Canon 2.01 of the Code of Judicial Conduct states: A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. This means that a judge whose duty is to apply the law and dispense justice should not only be impartial, independent and honest but should be believed and perceived to be impartial, independent and honest as well.[62] Like Caesars wife, a judge must not only be pure but above suspicion.[63] Judge Floro, by broadcasting to his staff and the PAO lawyer that he is pro-accused, opened himself up to suspicion regarding his impartiality. Prudence and judicial restraint dictate that a judge should reserve personal views and predilections to himself so as not to stir up suspicions of bias and unfairness. Irresponsible speech or improper conduct of a judge erodes public confidence in the judiciary.[64] His language, both written and spoken, must be guarded and measured, lest the best of intentions be misconstrued.[65]

On a more fundamental level, what is required of judges is objectivity if an independent judiciary is to be realized. And by professing his bias for the accused, Judge Floro is guilty of unbecoming conduct as his capacity for objectivity is put in serious doubt, necessarily eroding the publics trust in his ability to render justice. As we held in Castillo v. Juan[66]:

In every litigation, x x x, the manner and attitude of a trial judge are crucial to everyone concerned, the offended party, no less than the accused. It is not for him to indulge or even to give the appearance of catering to the at-times human failing of yielding to first impressions. He is to refrain from reaching hasty conclusions or prejudging matters. It would be deplorable if he lays himself open to the suspicion of reacting to feelings rather than to facts, of being imprisoned in the net of his own sympathies and predilections. It must be obvious to the parties as well as the public that he follows the traditional mode of adjudication requiring that he hear both sides with patience and understanding to keep the risk of reaching an unjust decision at a minimum. It is not necessary that he should possess marked proficiency in law, but it is essential that he is to hold the balance true. What is equally important is that he should avoid any conduct that casts doubt on his impartiality. What has been said is not merely a matter of judicial ethics. It is impressed with constitutional significance.

(h) Re: Charge of using/taking advantage of his moral ascendancy to settle and eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in the guise of settling the civil aspect of the case, by persuading the private complainant and the accused to sign the settlement even without the presence of the trial prosecutor.

(j) Re: Charge of issuing an Order on 8 March 1999 which varies from that which he issued in open court in Criminal Case No. 20385-MN, for frustrated homicide.

The memorandum report states:

During the arraignment and pre-trial of Criminal Case No. 20385-MN entitled: People vs. Nenita Salvador, Judge Floro, Jr., in the absence of the public prosecutor and considering that the private complainant was not being represented by a private prosecutor, used his moral ascendancy and influence to convince the private complainant to settle and eventually cause the dismissal of the case in the guise of settling its civil aspect by making the private complainants and the accused sign the settlement. (Copy of the signed stenographic notes is hereto attached as Annex 8).

xxxx

In an Order dated March 8, 1999 in Criminal Case No. 20385-MN, for frustrated homicide, Judge Floro, Jr. put on record the manifestations of the private complainant and the accused relative to their willingness to settle the civil aspect of the case. In the same order, Judge Floro, Jr. reserved his ruling on the said settlement until after the public prosecutor has given his comment. However, per report of the court employees in Branch 73, the aforesaid order was actually a revised one or a deviation from the original order given in open court. Actually, the said criminal case was already settled even without the presence of the public prosecutor. The settlement was in the nature of absolving not only the civil liability of the accused but the criminal liability as well. It was further reported that the private complainants signed the compromise agreement due to the insistence or persuasion of Judge Floro, Jr. The audit team was furnished a copy of the stenographic notes (unsigned draft order) and the revised order (signed). Copies of the stenographic notes and the revised order are hereto attached as Annexes 8, 13, and 14. (Note: the stenographic notes were signed by the parties to the case).

In the meantime, the mother of the private complainant in Criminal Case No. 20385-MN, Luz Arriego, filed an administrative case against Judge Floro docketed as A.M. OCA-I.P.I. No. 99-812-RTJ. In her Affidavit Complaint[67] dated 9 August 1999, she alleged that on 8 March 1999, Judge Floro forced them to settle her daughters case against the accused therein despite the absence of the trial prosecutor. When the parties could not agree on the amount to be paid by the accused for the medical expenses incurred by complaining witness, they requested respondent that they be given time to study

the matter and consult a lawyer to which Judge Floro replied that the case be settled immediately, uttering, ngayon na! ngayon na! Moreover, Judge Floro allegedly made them believe that the countercharges filed by the accused against the complaining witness would likewise be dismissed, so they agreed to settle the case. However, the written Order issued by respondent Judge did not reflect the agreement entered into by the parties in open court.

Judge Floro takes exception to the foregoing OCA report and the complaint filed by Mrs. Arriego, maintaining that the hearing on said case was not only in accordance with the Rules of Court but was also beneficial to the litigants concerned as they openly manifested their willingness to patch up their differences in the spirit of reconciliation. Then, considering that the parties suggested that they would file the necessary pleadings in due course, Judge Floro waited for such pleadings before the TSNdictated Order could be reduced to writing. Meanwhile, in the course of a conversation between Judge Floro and Court Administrator Benipayo, the latter opined that under Section 27 of Rule 130 of the Rules of Court, an offer of compromise in criminal cases is tantamount to an admission of guilt except in some cases. With this in mind, the 8 March 1999 Order of the hearing on even date was superseded by the revised written Order likewise dated 8 March 1999.

Judge Floro asserts that contrary to Atty. Buenaventuras stance that he has no power to revise an Order, courts have plenary power to recall and amend or revise any orally dictated order in substance and in form even motu proprio.

The rule on the matter finds expression in Echaus v. Court of Appeals[68] wherein we declared:

x x x [N]o judgment, or order whether final or interlocutory, has juridical existence until and unless it is set down in writing, signed and promulgated, i.e., delivered by the Judge to the Clerk of Court for filing, release to the parties and implementation, and that indeed, even after promulgation, it does not bind the parties until and unless notice thereof is duly served on them by any of the modes prescribed by law. This is so even if the order or judgment has in fact been orally pronounced in the presence of the parties, or a draft thereof drawn up and signed and/or copy thereof somehow read or acquired by any party. In truth, even after promulgation (i.e., filing with the clerk of court), and even after service on the parties of notice of an order or judgment, the Court rendering it indisputably has plenary power to recall and amend or revise it in substance or form on motion of any party or even motu proprio, provided that in the case of a final order or judgment, the same has not attained finality.(Emphasis supplied)

In herein case, what was involved was an interlocutory order made in open court ostensibly a judicial approval of a compromise agreement which was amended or revised by removing the stamp of

judicial approval, the written order merely stating that Judge Floro was reserving its ruling regarding the manifestations of the parties to enter into a compromise agreement after the public prosecutor shall have submitted its comments thereto.[69]

Considering then that it was well within the discretion of Judge Floro to revise his oral order per the Echaus ruling and factoring in his explanation for resorting to such an amendment, we find no basis for the charge of dishonesty (under paragraph j of the complaint).

Anent the charge that Judge Floro used his moral ascendancy to settle and eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in the guise of settling the civil aspect of the case, by persuading the private complainant and the accused to sign the settlement even without the presence of the trial prosecutor, the same must likewise fail for lack of basis. The controversial settlement never came to pass. It was not judicially approved as reflected in the revised Order of 8 March 1999, thus, Mrs. Arriego actually had no cause for complaint. She cannot, on one hand, complain that the written order did not reflect the agreement reached during the hearing and, on the other hand, claim that this agreement was reached under duress at the instance of Judge Floro.

(i) For motu proprio and over the strong objection of the trial prosecutor, ordering the mental and physical examination of the accused based on the ground that the accused is mahina ang pick-up

The audit team reported that in an Order dated 8 February 1999 in Criminal Case No. 20347-MN, Judge Floro motu proprio ordered the physical and mental examination of the accused by any physician, over the strong objection of the trial prosecutor, on the ground that the accused is mahina ang pick-up.[70]

In refutation, Judge Floro argues --

In the case at bar, respondent/Court carefully observed the demeanor of the accused NESTOR ESCARLAN and noted the manifestations of his counsel de oficio, Atty. E. Gallevo, PAO lawyer, and the comment/objections of the trial prosecutor, Prosecutor J. Diaz, thus:

a.

Atty. Gallevo manifested to the Court that the accused opted to enter a plea of not guilty;

b. But upon query of the Court, the accused approached the bench and he appeared trembling and stammering;

c. Atty. Gallevo, upon questions by respondent, readily admitted that accused is nauutal, has difficulty of reasoning, of speaking, and very nervous;

d. Atty. Gallevo also manifested that the accused often changed his mind regarding the plea, from not guilty to guilty and to not guilty, and so forth;

e. Considering the grave situation, Atty. Gallevo, upon citation by the Court/respondent of the pertinent provisions of the Rules, namely Rule 28 (Mental Examination of Persons), Sec. 12 of Rule 116, and Sec. 5(g) of Rule 135, Rules of Court (plenary powers to issue orders to conform to justice), manifested orally that the accused is mahina ang pick-up;

f. Hence, respondent exercised his sound discretion in issuing the ORDER OF MENTAL EXAMINATION.

The MENTAL examination ORDER finds legal support, since it is well-settled that the court may order a physical or MENTAL examination of a party where his physical or mental condition is material to the issues involved. (27 C.J.S. p. 119, cf. MARTIN, p. 107, id.).[71]

PAO lawyer Erwin Joy B. Gallevo took the witness stand for Judge Floro. He testified that he moved for the suspension of the arraignment of the accused Nestor EscarlanEscancilla in order to assess his mental fitness for trial.[72] As reflected in the Order for suspension, however, and as admitted by Judge Floro himself in his Comment, Atty. Gallevo merely manifested that accused is mahina ang pick-up.

Be that as it may, we cannot fault Judge Floro for suspending the arraignment motu proprio and over the strong objection of the trial prosecutor. It must be remembered that the scheduled arraignment took place in February 1999 when the applicable rule was still Section 12(a) of Rule 116 of the 1985 Rules of Criminal Procedure, which reads:

SEC. 12. thereof:

Suspension of arraignment. The arraignment shall be suspended, if at the time

(a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In

such case, the court shall order his mental examination and, if necessary, his confinement for such purpose.

The above-cited rule does not require that the suspension be made pursuant to a motion filed by the accused unlike Section 11(a), Rule 116 of the present 2000 Rules of Criminal Procedure which decrees that the suspension be made upon motion by the proper party.[73] Thus, it was well within the discretion of Judge Floro to order the suspension of the arraignment motu proprio based on his own assessment of the situation. In fact, jurisprudence imposes upon the Judge the duty to suspend the proceedings if it is found that the accused, even with the aid of counsel, cannot make a proper defense.[74] As we underscored in People v. Alcalde[75]:

Settled is the rule that when a judge is informed or discovers that an accused is apparently in a present condition of insanity or imbecility, it is within his discretion to investigate the matter. If it be found that by reason of such affliction the accused could not, with the aid of counsel, make a proper defense, it is the duty of the court to suspend the proceedings and commit the accused to a proper place of detention until his faculties are recovered. x x x.

xxxx

The constitutional right to be informed of the nature and cause of the accusation against him under the Bill of Rights carries with it the correlative obligation to effectively convey to the accused the information to enable him to effectively prepare for his defense. At the bottom is the issue of fair trial. While not every aberration of the mind or exhibition of mental deficiency on the part of the accused is sufficient to justify suspension of the proceedings, the trial court must be fully satisfied that the accused would have a fair trial with the assistance the law secures or gives. x x x.

Whether or not Judge Floro was indeed correct in his assessment of the accuseds mental fitness for trial is already beside the point. If ever he erred, he erred in the side of caution which, under the circumstances of the case, is not an actionable wrong.

(e) Re: Charge of appearing and signing pleadings in Civil Case No. 46-M-98 pending before Regional Trial Court, Branch 83, Malolos, Bulacan in violation of Canon 5, Rule 5.07, Code of Judicial Conduct which prohibits a judge from engaging in the private practice of law

(f) Re: Charge of appearing in personal cases without prior authority from the Supreme Court and without filing the corresponding applications for leaves of absence on the scheduled dates of hearing

In support of the above charges, the memorandum report states:

i. Judge Floro, Jr. informed the audit team that he has personal cases pending before the lower courts in Bulacan. He admitted that Atty. Bordador, the counsel of record in some of these cases, is just signing the pleadings for him while he (Judge Floro, Jr.) acts as collaborating counsel. When attending the hearing of the cases, Judge Floro, Jr. admitted that he does not file an application for leave of absence.

Based on the reports gathered by the audit team, Judge Floro, Jr. has a pending civil case in the Regional Trial Court of Malolos, Bulacan and a criminal case in Municipal Trial Court, Meycauayan, Bulacan. It is reported that in these cases, he is appearing and filing pleadings in his capacity as party and counsel for himself and even indicating in the pleadings that he is the Presiding Judge of Branch 73, RTC, Malabon.

Upon verification by the audit team, it was found out that Judge Floro, Jr. indeed has a pending case before the Regional Trial Court, Branch 83, Malolos, Bulacan docketed as Civil Case No. 46-M-98, entitled: In Re: In the Matter of the Petition for Habeas Corpus of Robert V. Floro, Atty. Florentino V. Floro, Jr., Petitioner - versus Jesie V. Floro and Benjamin V. Floro. In this case Judge Floro, Jr. filed an Ex-Parte Motion for Issuance of Entry of Judgment with Manifestation and/or Judicial Admission wherein he signed as the petitioner and at the same time indicated that he is the presiding judge of RTC, Branch 73, Malabon, Metro Manila. Court stenographer Marissa Garcia, RTC, Branch 83, Malolos, Bulacan confirmed this information. Judge Floro, Jr. even attached a copy of his oath taking and his picture together with President Joseph Estrada to the aforesaid pleading. Photocopy of the said Motion is hereto attached as Annex 9.

Judge Floro, Jr. has a pending request with the Court Management Office, Office of the Court Administrator, to appear as counsel or collaborating counsel in several civil cases (except the abovementioned case) pending before lower courts.[76]

Well ensconced is the rule that judges are prohibited from engaging in the private practice of law. Section 35, Rule 138 of the Rules of Court unequivocally states that: No judge or other official or employee of the superior courts or of the Office of the Solicitor General, shall engage in private practice as member of the bar or give professional advice to client. Canon 5, Rule 5.07 of the Code of Judicial Conduct, on the other hand, provides that: A judge shall not engage in the private practice of law.

Judge Floro vehemently denies the foregoing charge claiming that he hired lawyers to attend to his personal cases.[77]

A scrutiny of the voluminous records in this case does not reveal any concrete proof of Judge Floro having appeared as counsel in his personal cases after he had already been appointed Judge except that he prepared a pleading (Ex Parte Motion For Issuance of Entry of Judgment With Manifestation and/or Judicial Admission) jointly with his counsel of record in connection with a habeas corpus case he filed against his brothers for the custody of their mild, mentally-retarded brother. He explained, however, that he prepared the said pleading in the heat of anger as he could not accept the judgment of dismissal in that case.[78] He likewise explained that the pleading was signed by him alone due to inadvertence and that he had rectified the same by filing an Amended Manifestation with Affidavit of Merit.[79] Finally, during the hearing of this case, Judge Floro argued that he filed the subject pleading as petitioner and not as counsel.[80]

The proscription against the private practice of law by judges is based on sound public policy, thus:

[T]he rights, duties, privileges and functions of the office of an attorney-at-law are inherently incompatible with the high official functions, duties, powers, discretion and privileges of a judge. It also aims to ensure that judges give their full time and attention to their judicial duties, prevent them from extending special favors to their own private interests and assure the public of their impartiality in the performance of their functions. These objectives are dictated by a sense of moral decency and desire to promote the public interest.[81]

Based on the above rationale, it becomes quite evident that what is envisioned by private practice is more than an isolated court appearance, for it consists in frequent or customary action, a succession of acts of the same nature habitually or customarily holding ones self to the public as a lawyer.[82] In herein case, save for the Motion for Entry of Judgment, it does not appear from the records that Judge Floro filed other pleadings or appeared in any other court proceedings in connection with his personal cases. It is safe to conclude, therefore, that Judge Floros act of filing the motion for entry of judgment is but an isolated case and does not in any wise constitute private practice of law. Moreover, we cannot ignore the fact that Judge Floro is obviously not lawyering for any person in this case as he himself is the petitioner.

Be that as it may, though Judge Floro might not be guilty of unauthorized practice of law as defined, he is guilty of unbecoming conduct for signing a pleading wherein he indicated that he is the presiding judge of RTC, Branch 73, Malabon City and for appending to the pleading a copy of his oath with a picture of his oath-taking. The only logical explanation we can reach for such acts is that Judge Floro

was obviously trying to influence or put pressure on a fellow judge by emphasizing that he himself is a judge and is thus in the right.[83] Verily, Canon 2, Rule 2.04 of the Code of Judicial Conduct mandates that a judge shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency. By doing what he did, Judge Floro, to say the least, put a fellow judge in a very awkward position.

As to charge (f), the OCA has failed to substantiate its claim that Judge Floro has been attending the hearing of his personal cases without filing for leave of absence. As Judge Floro vehemently protests the charge as untrue, it was incumbent upon the OCA to prove its case. Time and again we have held that although administrative proceedings are not strictly bound by formal rules on evidence, the liberality of procedure in administrative actions is still subject to limitations imposed by the fundamental requirement of due process.[84]

(k) Re: Charge of openly criticizing the Rules of Court and the Philippine justice system

(l)

Re: Charge of use of highly improper and intemperate language during court proceedings

The memorandum report reads:

In the course of the judicial audit, the audit team was able to observe the way Judge Floro, Jr. conducts court proceedings. With the assistance of the court staff, the team was able to obtain a taperecorded proceeding conducted by Judge Floro, Jr. Attached is the transcript of the proceedings (Annex 15). The tape record of the court proceedings is also submitted along with this report as Exhibit A.

xxxx

The case for hearing that day was Civil Case No. 1256 MM. A certain Atty. Abelarde was appearing for the plaintiff while Atty. Emmanuel Basa was appearing for the defendant. During the hearing, it seems that the counsels for both parties were guiding Judge Floro, Jr. on how to proceed with the trial.

There was one instance when Judge Floro, Jr. criticized the Rules of Court, to wit:

Judge Floro, Jr.: Kasi nga ang may plano nito ay ang Rules of Court, hindi nila maayos ang Rules of Court natin, hindi realistic kinopya lang sa law of California on Civil Procedure; pagdating dito eh dahil sa kanila maraming nagkakaproblema, masyadong maraming eh ako wala akong pinagkopyahan yan but ginawa ko lang yon Sabi ko si Judge nagko-complain kasi, sabi ko nga pagka ang lawyer hindi alam yan talo na sa akin except na hindi papayag kasi marami diyang

In another proceeding conducted on a different day, Judge Floro, Jr., instead of holding trial, discussed, in open court, the case involving his brother. He even condemned the Philippine justice system and manifested his disgust on the unfairness of the system. Thus, he said:

Sabi ko paano ko matatagpuan ang katarungan dito sa korteng eto bulok ang hustisya. Ang kapatid ko napakayaman, ako walang pera.

He continued:

Yung kapatid ko. Hindi ko makuha kundi makita ko lang. Bawal kasi; yung kapatid ko retarded, bawal. In memory of my brother, Robert Floro. So, ngayon nag-file ako. Sabi ni Judge Agloro senermonan pa ako, ganun ganun Sabi ko paano ko makikita ang katarungan. Tapos ngayon ang nangyari di Judge na ako, hindi ko pa nakita ang kapatid ko. Di ngayon, ang ginawa ko na-dismiss na yung case, hindi ko inano kasi wala akong nakikitang katarungan dahil ang kapatid ko ay napakaraming pera. Alam ko naman kung ang isang court eh parehas o may kiling eh. Yung abogado niya malakas na malakas doon. Sana hindi naka-record eto (laughs) baka ako ma-contempt dito.[85]

Judge Floro denies the foregoing accusations, emphatically arguing that these are all hearsay fabrications supplied by his Clerk of Court, Atty. Dizon, and by disgruntled RTC personnel due to ill or ulterior motives (i.e., to allegedly cover-up their consistent tardiness, habitual absenteeism and gross neglect of duties which were all unearthed by Judge Floro).

As to the tape recording of an alleged court hearing wherein he criticized the Philippine judicial system, Judge Floro contends that this recording was done clandestinely by his staff in violation of the Anti-Wire Tapping Law (Republic Act No. 4200) and, to suit their plans, they twisted the facts by cutting portions thereof. They also made it appear that the conversation took place in a court proceeding when, in fact, this was inside his chambers.

During the investigation, it was established that the two tapes in question were submitted to the OCA sans the yellow notes and the official transcribed copy thereof.[86] This means that the transcribed copy that was submitted by the audit team as Annex 15 is but an unofficial copy and does not, by itself, prove that what was being recorded was a court proceeding. This being the case, the two tapes, without concrete proof that they were taken officially during a court proceeding, cannot be used against Judge Floro as the unauthorized recording of a private conversation is inadmissible under Rep. Act No. 4200.[87]

Without the tape and transcribed copies of the contents thereof, we are thus left with only Judge Floros word against that of Atty. Dizon, his Clerk of Court who testified under oath as to Judge Floros alleged propensity to criticize the judiciary and to use intemperate language. Resolving these particular charges would therefore depend upon which party is more credible.

Atty. Dizon stated on the witness stand that:

Q: Is Judge Floro guilty of Violation of Canon 1 Rule 1.01 Code of Judicial Conduct when he openly criticized the Rules of Court and the Philippine Justice System?

A: Yes. Judge Floro has mentioned to each and everyone of us in branch 73 the alleged kabulukan ng hustisya. Time and again he said the Rules of Court is of no use. He said that since theory and the practice of law are very different, the Rules of Court does not always apply to different cases. Not only the justice system did he criticize but likewise Judges and Justices. He told us . . . and I quote Dyan sa Malolos sangkatutak ang corrupt na Judges . . . Sa Court of Appeals P25,000.00 ang pinakamababang lagayan diyan.

To our mind, how can a Judge like him openly criticize the very institution he is now serving? Where is his respect to the court, to the bar and to the bench? How can he uphold courts as temples of justice if he himself did not believe in the justice system?

xxxx

Q What can you say about charge letter L which reads for the use of highly improper and intemperate language during court proceedings?

A Judge Floro, if in the presence of all his staff, during the presence of me, the Court Interpreter, the Legal Researcher, maybe a Clerk, he always discuss matters regarding practitioners in our court. There is one time one Atty. Feliciano a lady lawyer, he said, Luka-luka, talaga yang babaing yan and then he would call even not during court session, but during office hours our Court Interpreter malandi, lukaluka, may fruit of the sun. So, it did not surprise us one time when during a pre-trial conference in a Civil Case, for Civil Case No. 25-86-MN Lopez v. Reyes and Mercado, he uttered offensive language against his fellow judge. Take the transcription of this court proceeding is already adapted by the Court Administrator. It was the content of the tape he sent the Court Administrator. Actually, for consultation and advise after hearing what Judge Floro discussed in open Court, before all of us, the court staff present in the hearing and before the lawyer and the defendants in the case, we were in quandary whether or not to attach in the record the stenographic notes or even the actual transcription of the proceedings because it contained offensive languages against the justice system, against a certain judge, against a certain Clerk of Court named Jude Assanda, against people he is disgusted with. In fact, instead of discussing the merit of the case or the possibility of the amicable settlement between the parties, he integrated this kind of discussion. So, as a Clerk of Court, I may not use my discretion whether or not to advise the stenographer to indeed present the same or attach the same in the record because it contained offensive languages highly improper and intemperate languages like for example, putang ina, words like ako ang anghel ng kamatayan, etcetera, etcetera.[88]

The denials of Judge Floro are insufficient to discredit the straightforward and candid declarations of Atty. Dizon especially in the light of confirming proofs from Judge Floro himself.

The Court finds the version of Atty. Dizon more credible because subject utterances are consistent with Judge Floros claims of intellectual superiority for having graduated with several honors from the Ateneo School of Law and having placed 13th in the bar examinations. Moreover, his utterances against the judicial system on account of his perception of injustice in the disposition of his brothers case are not far removed from his reactions to what he perceived were injustices committed against him by the OCA and by the persons who were either in charge of the cases against him or had some sort of participation therein. Consequently, although there is no direct proof that Judge Floro said what he is claimed to have said, nonetheless, evidence that he sees himself as intellectually superior as well as evidence of his habit of crying foul when things do not go his way, show that it is more likely that he actually criticized the Rules of Court and the judicial system and is thus guilty of unbecoming conduct. Verily, in administrative cases, the quantum of proof necessary for a finding of guilt is substantial evidence or such relevant evidence as reasonable mind might accept as adequate to support a conclusion.[89] In this case, there is ample and competent proof of violation on Judge Floros part.

(m) Re: Charge of violating Circular No. 13-87 dated 1 July 1987

The memorandum report stated that Judge Floro

[D]eviat[ed] from the regular course of trial when he discusses matters involving his personal life and beliefs. Canon 3, Rule 3.03 provides that *a+ judge shall maintain order and proper decorum in the court. A disorderly judge generates disorderly work. An indecorous judge invites indecorous reactions. Hence, the need to maintain order and proper decorum in court. When the judge respects himself, others will respect him too. When he is orderly, others will follow suit. Proceedings in court must be conducted formally and solemnly. The atmosphere must be characterized with honor and dignity befitting the seriousness and importance of a judicial trial called to ascertain the truth. Anything which tends to detract from this atmosphere must be avoided. And the judge is supposed to be in control and is therefore responsible for any detraction therefrom.

Circular No. 13 (Guidelines in the Administration of Justice) dated July 1, 1987 provides that trial of cases should be conducted efficiently and expeditiously. Judges should plan the course and direction of trials so that waste of time is avoided.

Moreover, a judge should avoid being queer in his behavior, appearance and movements. He must always keep in mind that he is the visible representative of the law. Judge Floro, Jr.s claims that he is endowed with psychic powers, that he can inflict pain and sickness to people, that he is the angel of death and that he has unseen little friends are manifestations of his psychological instability and therefore casts doubt on his capacity to carry out the functions and responsibilities of a judge. Hence, it is best to subject Judge Floro, Jr. once again to psychiatric or mental examination to ascertain his fitness to remain in the judiciary.[90]

Circular No. 13-87, by itself, does not define nor punish an offense but, as its title would suggest, it merely sets the guidelines in the administration of justice following the ratification of the 1987 Constitution.

The arguments forwarded by the OCA, however, best exemplify the fact that the 13 charges are inextricably linked to the charge of mental/psychological illness which allegedly renders Judge Floro unfit to continue discharging the functions of his office. This being the case, we will consider the allegation that Judge Floro proclaims himself to be endowed with psychic powers, that he can inflict pain and sickness to people, that he is the angel of death and that he has unseen little friends in determining the transcendental issue of his mental/psychological fitness to remain in office.

But before we even go into that, we must determine the appropriate penalty to be imposed for the seven of the 13 charges discussed above. To recapitulate, we have found Judge Floro guilty, in one way or another, of seven of the 13 charges against him. Thus: 1) 2) 3) 4) 5) Charge a - simple misconduct Charges c and g gross ignorance of the law Charge d unbecoming conduct Charge e unbecoming conduct Charges k and l unbecoming conduct

Gross ignorance of the law or procedure is a serious charge. Under Rule 140 as amended, a judge guilty of a serious charge may be dismissed from the service, suspended from office without salary and other benefits for more than three but not exceeding six months or fined in the amount of P 20,000.00 but not exceeding P 40,000.00 depending on the circumstances of the case. In herein case, considering that Judge Floro had barely warmed his seat when he was slammed with these charges, his relative inexperience is to be taken in his favor. And, considering further that there is no allegation or proof that he acted in bad faith or with corrupt motives, we hold that a fine is the appropriate penalty. The fine is to be imposed in the maximum, i.e. P 40,000.00, as we will treat the findings of simple misconduct and unbecoming conduct as aggravating circumstances.[91]

Judge Floro must be relieved of his position as Judge of RTC Malabon Branch due to a medically disabling condition of the mind that renders him unfit to discharge the functions of his office

As we have explained, the common thread which binds the 13 seemingly unrelated accusations in A.M. No. RTJ-99-1460 is the charge of mental illness against Judge Floro embodied in the requirement for him to undergo an appropriate mental or psychological examination and which necessitated his suspension pending investigation. This charge of mental illness, if true, renders him unfit to perform the functions of his office notwithstanding the fact that, in disposing of the 13 charges, there had been no finding of dismissal from the service against Judge Floro.

The Supreme Court Clinic first had occasion to interview Judge Floro when the latter applied for judgeship (which application he later voluntarily withdrew) way back in September 1995. The psychological report, as prepared by Cecilia C. Villegas, M.D. (Director III, Chief SC Clinic Services) and Melinda C. Grio (Psychologist), stated in part:

PSYCHIATRIC EVALUATION:

There are evidences of developing psychotic process at present.

REMARKS:

Atty. Floro was observed to be restless and very anxious during the interview. He was argumentative and over solicitous of questions asked, giving the impressions of marked suspiciousness. He centered on his academic excellence, an Ateneo de Manila graduate of the College of Law, rated top 13th place in the bar examination. He emphasized his obsessive and compulsive method of studying, at least 15 hours per day regardless of whether it was school days or vacation time. Vying for honors all the time and graduated Law as second honor, he calls this self-discipline and self-organization. He expressed dissatisfaction of his achievements, tend to be a perfectionist and cannot accept failures. To emphasize his ultra bright mind and analytical system, he related that, for the past 3 to 5 years, he has been experiencing Psychic vision every morning and that the biggest secret of the universe are the unseen things. He can predict future events because of power in psychic phenomenon as when his bar results was to be released, he saw lights in the sky no. 13 -1, and he got the 13th place. He has been practicing parapsychology seeing plenty of dwendes around him.

He can talk on and on of bizarre ideas, that tends (sic) to be irrelevant.

Intellectually, he has high assets, however, evidence of ego disintegration are prominent findings, both in the interview (conscious) and psychological test results. (unconscious level).[92]

Approximately three years later, in June 1998, Judge Floro again presented himself to the Supreme Court Clinic when he applied anew for judgeship, this time of RTC Malabon. Psychologist Beatriz O. Cruz and Celeste P. Vista, M.D. (Psychiatrist and Medical Officer IV) did the interview and evaluation. Dr. Vista observed:

Atty. Floro has an impressive academic achievements (sic), and he takes pride in this. During the interview, he was quite reluctant to reveal information about his family background and would rather talk about his work and academic achievements. However, he failed to integrate his knowledge into a cohesive unit which he can utilize to cope with the various tasks that he undertakes. This renders him confused and ambivalent with a tendency to vacillate with decision-making. He also has a low selfesteem and prone to mood swings with the slightest provocation.

From the interview, there seems to have been no drastic change in his personality and level of functioning as a lawyer in private practice. However, he showed a pervasive pattern of social and interpersonal deficits. He has poor social skills and showed discomfort with close social contacts. Paranoid ideations, suspiciousness of others motives as well as perceptual distortions were evident during the interview.

Atty. Floros current intelligence function is along the mild mental retardation (68) which is below the expected cognitive efficiency of a judge. Despite his impressive academic background and achievements, he has lapses in judgment and may have problems with decision-making. His character traits such as suspiciousness and seclusiveness and preoccupation with paranormal and psychic phenomena though not detrimental to his role as a lawyer, may cloud his judgment, and hamper his primary role as a judge in dispensing justice. Furthermore, he is at present not intellectually and emotionally equipped to hurdle the responsibilities of a judge and he may decompensate when exposed to anxiety-provoking and stress-laden situation.[93]

It would seem that the JBC disregarded the above-quoted report as it allowed Judge Floro to seek a second opinion from private practitioners. A.M. No. RTJ-99-1460, however, resurrected the issue of his mental and psychological capacity to preside over a regional trial court. Thus, the Resolution of 20 July 1999 specifically ordered Judge Floro to submit to appropriate psychological or mental examination.

On 1 February 2000, per recommendation of Justice Ramirez,[94] the Court clarified that the appropriate psychological or mental examination being adverted to in the Resolution of 20 July 1999 is to be conducted by the SC Clinic. The Court thereby directed Judge Floro to submit himself to the SC Clinic for psychological or mental examination, within ten (10) days from notice.[95] Judge Floro sought reconsideration which was denied by the Court on 22 February 2000.[96]

The order to submit to the appropriate psychological examination by the SC Clinic was reiterated by the Court on 17 October 2000 with the admonition that Judge Floros failure to do so would result in appropriate disciplinary sanctions.[97]

On 24 October 2000, Judge Floro sought reconsideration of the 17 October 2000 Resolution with a conjunctive special motion for him to undergo psychiatric examination by any duly authorized medical and/or mental institution.[98] This was denied by the Court on 14 November 2000.[99]

On 10 November 2000, Judge Floro moved, among other things, for the inhibition or disqualification of Supreme Court Clinic doctors[100] and psychologist[101] with a manifestation that he filed cases against them for revocation of licenses before the Professional Regulatory Commission (PRC), the Philippine Medical Association (PMA) and the PAP[102] for alleged gross incompetence and dishonorable conduct under Sec. 24 of Rep. Act No. 2382/1959 Medical Act/Code of Medical Ethics.[103]

On 16 November 2000, Justice Ramirez, with the approval of Court Administrator Benipayo, moved that Judge Floro be sanctioned for obvious contempt in refusing to comply with the 1 February 2000 and 17 October 2000 resolutions. According to Justice Ramirez, Judge Floros filing of administrative cases with the PRC against Dr. Mendoza,et al., is an indication of the latters intention to disregard and disobey the legal orders of the Court.[104] The Court en banc agreed in the report of Justice Ramirez, thus Judge Floro was ordered to submit to psychological and mental examination within 10 days from receipt, otherwise, he shall be ordered arrested and detained at the jail of the National Bureau of Investigation (NBI) x x x.[105]

Judge Floro finally complied with the directive on 13 and 15 December 2000.[106] He likewise sought the services of a private practitioner, Dr. Eduardo T. Maaba, who came out with his own evaluation of Judge Floro on 3 January 2001.[107]

Thus, Judge Floro trooped to the Supreme Court Clinic for the third time in December 2000, this time in connection with A.M. No. RTJ-99-1460. Francianina G. Sanchez, Clinical Psychologist and Chief Judicial Staff Officer reported that (o)ver all data strongly suggest a delusional disorder with movement in the paranoid direction. Dr. Celeste Vista, for her part, stated that:

Based on the clinical data gathered, it appears that Judge Floro is basically a cautious, and suspicious individual with a compulsion to analyze and observe motives in his milieu. Despite his status, cognitive assets and impressive educational background, his current functioning is gauged along the LOW AVERAGE intelligence.

He can function and apply his skills in everyday and routine situations. However, his test protocol is characterized by disabling indicators. There is impairment in reality testing which is an indicator of a psychotic process. He is unable to make an objective assessment and judgment of his milieu. Hence, he is apt to misconstrue signals from his environment resulting to perceptual distortions, disturbed associations, and lapses in judgment. Such that, cultural beliefs in dwarfs, psychic and paranormal phenomena and divine gifts of healing have become incorporated in a delusional (false and unshakable beliefs) system, that it has interfered and tainted his occupational and social functioning. Hence, he is found to be unfit in performing his court duties as a judge.[108]

Pursuant to the aforecited December 2000 interview of Judge Floro, Supreme Court Senior Chief Staff Officer Rosa J. Mendoza, M.D., reported to Chief Justice Hilario G. Davide, Jr. in March 2001 that

The findings of mental and psychological incapacity is thus substantially supported by evidence. Based on the three [3] psychological tests and evaluation of the two [2] psychiatrists, the undersigned has no other recourse but to recommend that Judge Florentino Floro be declared unfit to discharge his duties as a Judge, effective immediately.

Not one to take this last recommendation sitting down, Judge Floro submitted earlier psychological evaluations conducted by several mental health professionals which were all favorable to him. The first three evaluations were in connection with his application as RTC Judge of Malabon City in 1998 brought about by him having failed the examination given by the Supreme Court Clinic. The report dated 04 September 1998 by staff psychologist, Rowena A. Reyes as noted by clinical Psychologist, Ma. Teresa Gustilo-Villasor of the Metropolitan Psychological Corporation (MPC), states in part:

I.

INTELLECTUAL/COGNITIVE CHARACTERISTICS

SUMMARY OF INTELLECTUAL/COGNITIVE CHARACTERISTICS

1. FFJ can draw from above average intellectual resources to cope with everyday demands. He is able to handle both concrete and abstract requirements of tasks. Alert to details, he has a logical approach in evaluating the relationship between things and ideas.

2. He thrives in predictable and structured situations, where he can consider solid facts to arrived (sic)at concrete, tangible outcomes. Task-oriented, he can organize procedures and details so as to get things done correctly and on schedule. He uses conventional standards to determine personal progress. Set in his views, he may not readily accept others ideas and contributions especially if these oppose his own.

3. A serious and thorough approach to his commitments is expected of FFJ. Generally, he prefers to control his emotions and does not let this get in the way of his judgment and decisions.

II.

EMOTIONAL/INTERPERSONAL CHARACTERISTICS

FFJ is motivated by the need to be recognized and respected for his undertakings. Achievementoriented, he sets high personal standards and tends to judge himself and others according to these standards. When things do not develop along desired lines, he may become restless and impatient. Nevertheless, he is careful of his social stature and can be expected to comply with conventional social demands.[109]

Testifying as one of Judge Floros witnesses, Rowena A. Reyes opined on cross -examination that psychologically speaking, Judge Floro was not fit to be a judge. Thus:

JUDGE AQUINO:

Q: Now, that we are telling you that Judge Floro based on his testimony here and on every available records of the proceedings, has been claiming that he [is] possessed with Psychic Powers and he did not tell you that in the interview. Would you consider his failure to tell you about his Psychic Powers to be a fatal [flaw]?

xxxx

A:

Yes, Sir.

Q:

Very grave one, because it will affect the psychological outlook of the patient?

A:

Yes, Sir.

xxxx

Q: I tell you now, Judge Floro has been claiming in [these] proceedings and you were here when we were cross-examining Mr. Licaoco and you heard that we mentioned in the course of our crossexamination. Would you consider his failure to tell you about his power of by location to be a fatal [flaw] and your assessment of his psychological outlook?

xxxx

A:

Yes, Sir.

Q:

Fatal [flaw]?

A:

Yes, Sir.

Q:

Did Judge Floro tell you also in the course of the interview that he is capable of being in a trance?

A:

He did not.

Q:

So, he did not tell you that while in a trance he could type letters?

A:

He did not.

xxxx

Q: And reality oriented and a reality oriented person is one who will not be pronouncing or making pronouncement concerning his psychic powers. Is this not correct?

xxxx

A:

Yes sir.

Q: A reality oriented person is also one who will not claim that he is capable of having trances in the course of his private activities and even in the course of the performance of his official duty as a Judge. Will you not agree with that?

A:

I agree with you, Sir.

Q: And if he will do so, he will not be actually a reality oriented person. Meaning tatagalugin ko na po nakukuha naman na ako ay psychic, na ako ay pwedeng ipower ng by location, na kaya kong mag trance. Gumawa pa ng ibat iba pang bagay at the same time. Yan ay hindi compatible sa pagiging reality oriented?

A:

Yes, Sir.

Q:

And a person who is not reality oriented is not fit to sit as a Judge.

xxxx

Q:

I will add the phrase Psychologically speaking.

xxxx

A:

Yes, Sir.[110]

Another psychiatrist, Pacita Ramos-Salceda, M.D., Senior Consultant Psychiatrist of the Makati Medical Center, stated in her report dated 3 September 1998 that at the time of the interview Judge Floro

[W]as enthusiastic and confident. He is well informed about current issues, able to discuss a wide variety of topics intelligently without hesitation. His thinking is lucid, rational, logical and reality based. He is well oriented, intelligent, emotionally stable, with very good judgment. There is no previous history of any psychological disturbances.[111]

This was followed by the evaluation of Eduardo L. Jurilla, M.D., dated September 1998, who stated in his report that

Atty. Floro is an asthenic, medium height, fairly groomed, be-spectacled person with graying hair. When interviewed he was somewhat anxious, elaborative and at times approximate in his answers. He was alert, oriented, conscious, cooperative and articulate in Pilipino and English. He denied any perceptual disturbances. Stream of thought was logical and goal-directed. There was pressure of speech with tendency to be argumentative or defensive but there were no flight of ideas, thought blocking, looseness of associations or neologisms. Delusions were not elicited. Affect was broad and appropriate but mood was anxious. There were no abnormal involuntary movements or tics. Impulse control is good. Cognition is intact. Judgment, insight, and other test for higher cortical functions did not reveal abnormal results.

Comments: The over-all results of this psychiatric evaluation of Atty. Florentino V. Floro, Jr. do not contradict his nomination and appointment to the post he is seeking.[112]

On the witness stand, however, and testifying as Judge Floros witness, Dr. Jurilla clarified that the interview had its limitations[113] and he might have missed out certain information left out by his patient.[114] The following exchange is thus instructive:

JUDGE AQUINO: x x x. Did Judge Floro tell you in the interview that he has little unseen, unheard friends known as duwendes?

DR. JURILLA: He did not.

xxxx

Q: Did you interview Judge Floro or did he [volunteer] to you information about his claim to be the number five psychic in the country?

xxxx

A:

No, Your Honor.

Q:

He did not tell you also that he is gifted also with this so called, psychic phenomena?

A:

He did not.

xxxx

Q: He did not tell you also that in [traveling] from one place to another, at least four (4) kilometers apart, he used to ride on a big white or whatever it is, horse?

A:

Not during our interview.

xxxx

A: It is possible like any other psychiatrist or mental health doctor you might have missed some information or it is possible that our clients or patients might not [have] told us everything.

Q: And if your clients or patients did not tell you things such as those that Judge Floro did not admittedly tell you in the course of the interview, your opinion of the patient would be altered a little?

xxxx

A: The answer has something to do whether my evaluation may be altered. Yes, Your Honor in the absence of any corroborative contradiction.

Q: More so, if the presence of confirming events that transpired after the interview, would that be correct?

A:

The interview has its limitations.

Q: Let us say, what Judge Floro did [not] tell you during the interview are confirmed by events that transpired after the interview, would you not say you have more reason to have your evaluation altered? A: Yes.

Q: Especially so if you will now know that after that interview Judge Floro has been proclaiming himself as the number five psychic in the country [where] no one has called him as a psychic at all?

xxxx

Q:

Would it be really more altered?

A:

I would say so.

xxxx

Q: Returning to the confirming proofs, meaning after the interview, which are confirmations of what Judge Floro did not tell you during the interview, would your finding of [J]udge Floro be drastically altered if he will tell you that he is capable or possessed of the power of bilocation?

xxxx

A:

I would probably try to for a diagnosis.

Q: Which may make a drastic alteration of your evaluation of Judge Floros mental and psychological x x x?

A:

My diagnosis I will be seeking for an abnormal condition.

Q: When you said abnormal something would have made you suspect that there was abnormality in the person of Judge Floro?

A:

Given the data.

Q: We will give you the data or additional information. Would you also have your evaluation favorable to Judge Floro drastically altered if I tell you that based on record Judge Floro has claimed that while in a trance he is capable of typing a letter?

xxxx

A:

If there is data toward that effect prior to September 1998, probably drastically altered.[115]

Lastly, Judge Floro presented the psychiatric evaluation of Eduardo T. Maaba, M.D.,[116] dated 3 January 2001, the relevant portions of which state:

Affect was adequate and no mood incongruity was observed. Content of thought did not reveal delusional thought. He was proud of his achievements in line with his profession and expressed his frustration and dissatisfaction with the way his colleagues are handling his pending administrative cases. He was observed to be reality-oriented and was not suffering from hallucinations or abnormal perceptual distortions. Orientation, with respect to time, place and person, was unimpaired. Judgment and decision-making capacity were adequately functioning.

xxxx

An open-ended clinical interview was conducted at our clinic on December 26, 2000. He talked about his family and academic achievements. He claimed to possess a divine gift for prophecy and a gift of healing. He also talked about a covenant made during a dream between him and 3 dwarf friends named Luis, Armand and Angel. He reported that the first part of his ministry is to cast illness and/or disease and the second part is to heal and alleviate sufferings/pain from disease.

A series of psychological test was administered to Judge Floro on December 28, 2000. The battery of test consisted of the following: (1) Otis-Lennon Mental Ability Test (2) SRA Language Test (3) Purdue Non-Language Test (4) Sacks Sentence Completion Test and (5) Draw A Person Test. Test results and evaluation showed an individual with an Above Average Intelligence. Projective data, showed an

obsessive-compulsive person who is meticulous to details and strive for perfection in tasks assigned to him. He is reality-oriented and is deemed capable of making day-to-day decisions in his personal as well as professional decisions. Confusion with regard to sexual identification, was further observed.

Based on the clinical observation and the results of the psychological tests, respondent Judge Florentino V. Floro, Jr., was found to be a highly intelligent person who is reality-oriented and is not suffering from any major psychotic disorder. He is not deluded nor hallucinated and is capable of utilizing his superior intellect in making sound decisions. His belief in supernatural abilities is culturebound and needs further studies/work-ups.

On cross-examination by Judge Aquino, however, Dr. Maaba also stated that Judge Floro was unfit to be a judge.[117] The relevant exchanges between Dr. Maaba and Judge Aquino are hereunder reproduced:

JUDGE AQUINO: And would you say that something is wrong with a judge who shall claim that he is possessed with power of [bi-location]?

xxxx

DR. MAABA: A reality-oriented individual would not claim to be in two (2) places at one time.

Q:

And that something must be wrong?

A:

Yes.

Q: Okay. Would you say that something is wrong also with a judge claiming in the course of his testimony and in this very case that while [he] was so testifying there is another spirit, another person, another character unseen who is with him at the same time or in tagalog sumapi sa kanya.

xxxx

A:

The observation that Judge Floro had unseen companion sumapi to me is unbelievable.

Q:

Unbelievable. And anyone claiming it might be suffering from some delusion?

xxxx

A:

It could be and it could not be considered as perceptual distortion, your Honor.

Q:

No, Delusion.

A:

Delusions, no, but Hallucinations, maybe yes.

Q:

Ah, Hallucination, and which maybe worse?

A:

Both are on the same footing.

Q: Okay. Would you say that the person declaring in a proceeding as a witness about hallucinatory matters would turn out to be fit to become a judge?

xxxx

A. If these delusions or hallucinations are part and parcel of a major psychiatric disorder like schizophrenia or an organic mental disorder, this individual suffering from hallucinations or delusions is unfit to sit as a judge, however, there is, this symptom might also exi[s]t in a non-psychotic illness and the hallucinations and delusions could be transient and short in duration.

Q:

But of doubtful capacity to sit as a judge?

A:

Yes, doubtful capacity.

Q:

Now, trance is something covered by the field of which you are practicing with psychiatry.

A:

Yes.

Q: Would you consider a person claiming in the course of a judicial, quasi-judicial or administrative proceedings particularly in the course of his testimony that while he was doing so, he was under trance normal.

xxxx

A: Let me explain the phenomenon of trance it is usually considered in the Philippines as part of a culture bound syndrome and it could also be an indication Basically the phenomenon of trance are often seen in cases of organic mental disorder. It is also common in culture bound syndrome and the effect of person is usually loss of concentration in a particular settings or situations so that a person or a judge hearing a case in court would [lose] concentration and would not be able to follow up testimony of witnesses as well as arguments given by the counsel for the defense and also for the prosecution, so I would say that there is this difficulty in manners of attention span and concentration if that person sitting as a judge experience trance as in the case of Judge Floro, this trance is manifested by flashing of lights and he might not be able to rationalize or to control expressions or as well as physical when he is in a trance.

Q:

Have you heard of a judge claiming that in the course of a proceeding, he was in a trance?

A:

No, I have not encountered any.

Q: And if you hear one and will be shown records of one maybe such claim you will call that person not a normal person.

A:

Maybe weird.

Q: I will now show to you portions of the stenographic notes of the proceedings in these cases held on October 10, 2000, afternoon session, page 30 we start with the question of Atty. Dizon. Atty. Dizon: Mr. witness, can you tell us? Are you in trance at this very precise moment? JUDGE FLORO, JR.: Nakalakip sila. I call it a trance, but I distinguished not the trance that you see the nag-sa-Sto., Nino, naninigas. Thats a trance that is created by the so called Because Fr. Jaime Bulatao, multi awarded Jesuit priest, considered that as mind projection. He is correct in a sense that those nagta-trance na yan,

naninigas, the mind projection or the hypnosis do come, and there is a change in the psychological aspect of the person. But in my case I never was changed physically or mentally. Only the lights and heat will penetrate that person. ATTY. DIZON: That will do. So at this very moment, Mr. witness, meron kayong kalakip ngayon? Ngayong oras na ito? JUDGE FLORO: Yes, they are here. Atty. DIZON: Where are they? JUDGE FLORO, JR.: They cannot be seen but ATTY. DIZON: No, can you see them? To point to us where are they in this room?, Now that you have read and seen this portion wherein Judge Floro himself admitted that in the course of his testimony in these cases he was in a trance, would you still consider him at least insofar as this claim of his to be a normal person?

A:

No.

Q: No, okay, so he is not normal. Now, Judge Floro in these proceedings also and I will show to you the transcript of stenographic notes later have claimed that he had, always had and still had a so called counter part, his other side, other self, what can you say to that claim, would that be the claim of a normal, mental sound person?

A:

No.

Q:

And one who is not normal and mentally sound is of course not fit to sit as judge?

xxxx

A:

Yes.[118]

Based on the foregoing, the OCA, thru Justice Ramirez, reported that:

Upon the testimony of his own witnesses, Drs. Eduardo T. Maaba, Ma. Nieves Celeste and Eduardo L. Jurilla, respondent Judge Florentino V. Floro, Jr. is unfit because of insanity to remain in office as Judge of the Regional Trial Court, National Capital Judicial Region, Malabon, Metro Manila, Branch 73.

It is weird for respondent Judge to state in one of his pleadings in this case that President Estrada would not finish his term as President. It is unusual and queer of him to state in his calling card that he is a graduate of Ateneo de Manila, second honors, bar topnotcher with a grade of 87.55% and include in his

address the name Colonel Reynaldo Cabauatan who was involved in a coup detat attempt. So is it strange of him to make use of his alleged psychic powers in writing decisions in the cases assigned to his court. It is improper and grandiose of him to express superiority over other judges in the course of hearings he is conducting and for him to say that he is very successful over many other applicants for the position he has been appointed. It is abnormal for a Judge to distribute self-serving propaganda. One who distributes such self-serving propaganda is odd, queer, amusing, irresponsible and abnormal. A judge suffering from delusion or hallucination is unfit to be one. So is he who gets into a trance while presiding at the hearing of a case in court. One need not be a doctor of medicine, a psychiatrist and a psychologist to determine and conclude that a person in such circumstances is mentally unfit or insane and should not be allowed to continue discharging the duties and functions of a judge. The life, liberty and property of the litigants in the court presided by such judge are in his hands. Hence, it is imperative that he is free from doubt as to his mental capacity and condition to continue discharging the functions of his office.

RECOMMENDATION

WHEREFORE, it is respectfully recommended that by reason of insanity which renders him incapable and unfit to perform the duties and functions of Judge of the Regional Trial Court, National Capital Judicial Region, Malabon, Metro Manila, Branch 73, respondent Florentino V. Floro, Jr. be REMOVED and DISMISSED from such office.[119]

We are in agreement with the OCA that Judge Floro cannot remain as RTC Judge because of the findings of mental impairment that renders him unfit to perform the functions of his office. We hasten to add, however, that neither the OCA nor this Court is qualified to conclude that Judge Floro is insane as, in fact, the psychologists and psychiatrists on his case have never said so.

When Justice Ramirez recommended that Judge Floro be dismissed from the service due to insanity, he was apparently using the term in its loose sense. Insanity is a general laymans term, a catchall word referring to various mental disorders. Psychosis is perhaps the appropriate medical term[120] as this is the one used by Drs. Vista and Villegas of the Supreme Court Clinic. It is of note that the 1995, 1998 and 2000 psychological evaluations all reported signs and symptoms of psychosis.

Courts exist to promote justice; thus aiding to secure the contentment and happiness of the people.[121] An honorable, competent and independent judiciary exists to administer justice in order to promote the stability of government, and the well-being of the people.[122] Carrying much of the weight in this daunting task of administering justice are our front liners, the judges who preside over courts of law and in whose hands are entrusted the destinies of individuals and institutions. As it has been said,

courts will only succeed in their tasks if the judges presiding over them are truly honorable men, competent and independent.[123]

There is no indication that Judge Floro is anything but an honorable man. And, in fact, in our disposition of the 13 charges against him, we have not found him guilty of gross misconduct or acts or corruption. However, the findings of psychosis by the mental health professionals assigned to his case indicate gross deficiency in competence and independence.

Moreover, Judge Floro himself admitted that he believes in psychic visions, of foreseeing the future because of his power in psychic phenomenon. He believes in duwendes and of a covenant with his dwarf friends Luis, Armand and Angel. He believes that he can write while on trance and that he had been seen by several people to have been in two places at the same time. He has likened himself to the angel of death who can inflict pains on people, especially upon those he perceived as corrupt officials of the RTCs of Malabon. He took to wearing blue robes during court sessions, switching only to black on Fridays. His own witness testified that Judge Floro explained that he wore black from head to foot on Fridays to recharge his psychic powers. Finally, Judge Floro conducted healing sessions in his chambers during his break time. All these things validate the findings of the Supreme Court Clinic about Judge Floros uncommon beliefs and that such beliefs have spilled over to action.

Lest we be misconstrued, we do not denigrate such belief system. However, such beliefs, especially since Judge Floro acted on them, are so at odds with the critical and impartial thinking required of a judge under our judicial system.

Psychic phenomena, even assuming such exist, have no place in a judiciary duty bound to apply only positive law and, in its absence, equitable rules and principles in resolving controversies. Thus, Judge Floros reference to psychic phenomena in the decision he rendered in the case of People v. Francisco, Jr.[124] sticks out like a sore thumb. In said decision, Judge Floro discredited the testimony of the prosecutions principal witness by concluding that the testimony was a fairytale or a fantastic story.[125] He then went to state that psychic phenomena was destined to cooperate with the stenographer who transcribed the testimony of the witness. The pertinent portion of Judge Floros decision is quoted hereunder:

3. The testimony of the prosecutions PRINCIPAL witness (sole eyewitness of the incident) NORMANDY is INCREDIBLE, is full of inconsistencies (major and not regarding minor points), ergo, the court concludes that due to several indicia of fraud/perjury (flagrant/palpable deception of the Court), his testimony is not worthy of belief, assuming ex-gratia argumenti, that the same may be admissible, and his Court narrative is hereby declared a FAIRY TALE or a FANTASTIC STORY of a crime scene that is acceptable only for SCREEN/cinematic viewing. The following details, are proof of the foregoing conclusion:

a.) NORMANDY swore that he, Ponciano Ineria and Raul Ineria were sinalubong by Lando/accused on June 21, 1987 at 2:30 a.m. at alley Wesleyan/Tangos, Navotas, and that he saw the nagpambuno between Raul and Ando, and that HE SAW P. INERIA dead, but HE WAS NO LONGER THERE, but he still saw the nagpambuno; MORE IMPORTANTLY, he SWORE that HE NOTICED the ACCUSED P. Francisco THE FOLLOWING DAY;

b.) The foregoing verily demonstrate his 11th HOUR CONCOCTION (Big Lie, having been asked to submit false testimony); for how could have he witnessed the stabbing by accused when he NOTICED him the following day? (TSN dated May 2, 1995, pp. 1-2); assuming arguendo that the TSN was incorrect due to typographical error, or maybe the Court Stenographer III Eloisa B. Domingo might have been SLEEPING during the testimony, so that the word DAY should have been corrected to another word SUITABLE to Normandys FAIRY TALE, still, the Court had synthesized the entire NARRATIVE of Normandy, but the Court found no reason that the seeming error DAY should be corrected; the Courts sole/remaining conclusion is that EVEN the STENOGRAPHIC NOTES cooperated by PSYCHIC PHENOMENA perhaps of FOR SURE, in having BEEN DESTINED to be FATEFULLY INSCRIBED WITH THE WORDS FOLLOWING DAY (line 3, p. 3 TSN, id.);[126] (Emphasis supplied)

In State Prosecutors v. Muro[127] we held that

What is required on the part of judges is objectivity. An independent judiciary does not mean that judges can resolve specific disputes entirely as they please. There are both implicit and explicit limits on the way judges perform their role. Implicit limits include accepted legal values and the explicit limits are substantive and procedural rules of law.[128]

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinate to the primordial necessity of order in the social life.[129]

Judge Floro does not meet such requirement of objectivity and his competence for judicial tasks leaves much to be desired. As reported by the Supreme Court Clinic:

Despite his impressive academic background and achievements, he has lapses in judgment and may have problems with decision-making. His character traits such as suspiciousness and seclusiveness

and preoccupation with paranormal and psychic phenomena though not detrimental to his role as a lawyer, may cloud his judgment, and hamper his primary role as a judge in dispensing justice. x x x[130]

Judge Floros belief system, as well as his actuations in the eight months that he served as RTC judge, indubitably shows his inability to function with the cold neutrality of an impartial judge.

Verily, Judge Floro holds an exalted position in our system of government. Thus:

Long before a man dons the judicial robes, he has accepted and identified himself with large components of the judges role. Especially if he has aspired to a judges status, he is likely to have conducted himself, more or less unconsciously, in the fashion of one who is said to have the judicial temperament. He is likely to have displayed the kinds of behavior that the judges role demands. A large proportion of his experiences on the bench develop and reinforce such conformity, moreover. The ritualistic elements of investiture and of court procedure, the honorific forms of address, and even the imposing appearance of some court buildings serve to emphasize the demands upon his behavior. Even the most unscrupulous former ambulance chaser who owes his position to a thoroughly corrupt political organization must conform at least in part to the behaviors expected of him as a judge.[131]

The expectations concerning judicial behavior are more than those expected of other public officials. Judges are seen as guardians of the law and they must thus identify themselves with the law to an even greater degree than legislators or executives.[132]

As it has been said, *j+udges administer justice judicially, i.e., not according to some abstract ideas of right and justice, but according to the rules laid down by society in its Code of Laws to which it gives its sanctions. The function of the judge is primarily adjudication. This is not a mechanical craft but the exercise of a creative art, whether we call it legislative or not, which requires great ability and objectivity.[133] We, thus, quote Justice Frankfurter, in speaking of the functions of the Justices of the Supreme Court of theUnited States:

To practice the requisite detachment and to achieve sufficient objectivity no doubt demands of judges the habit of self-discipline and self-criticism, incertitude that ones own views are incontestable and alert tolerance toward views not shared. But these are precisely the presuppositions of our judicial process. They are precisely the qualities society has a right to expect from those entrusted with judicial power.

xxxx

The judicial judgment must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment.[134]

In fine, Judge Floro lacks the judicial temperament and the fundamental requirements of competence and objectivity expected of all judges. He cannot thus be allowed to continue as judge for to do so might result in a serious challenge to the existence of a critical and impartial judiciary.

Equitable considerations entitle Judge Floro backwages and other economic benefits for a period of three (3) years.

In retrospect, we are forced to say that Judge Floro should not have joined the judiciary as RTC judge. However, we have assiduously reviewed the history of this case and we cannot hold anyone legally responsible for such major and unfortunate faux pas.

Judge Floro did not breach any rule of procedure relative to his application for judgeship. He went through the entire gamut of tests and interviews and he was nominated by the JBC on the strength of his scholastic achievements. As to having failed the psychological examinations given by the SC Clinic, it must be pointed out that this was disregarded by the JBC upon Judge Floros submission of psychiatric evaluations conducted by mental health professionals from the private sector and which were favorable to him. Nowhere is it alleged that Judge Floro acted less than honorably in procuring these evaluations.

The JBC in 1999 had all the discretion to refer Judge Floro to a private clinic for a second opinion of his mental and psychological fitness. In performing its functions, the JBC had been guided primarily by the Constitution which prescribes that members of the Judiciary must be, in addition to other requirements, persons of proven competence, integrity, probity and independence.[135] It was only on 18 October 2000 when it promulgated JBC-009, the Rules of the Judicial and Bar Council, that the JBC put down in writing guidelines or criteria it had previously used in ascertaining if one seeking such office meets the minimum constitutional qualifications and possesses qualities of mind and heart expected of the Judiciary.[136] Rule 6 thereof states:

SECTION 1. Good health. Good physical health and sound mental/psychological and emotional condition of the applicant play a critical role in his capacity and capability to perform the delicate task of administering justice. x x x

SEC. 2. Psychological/psychiatric tests. The applicant shall submit to psychological/psychiatric tests to be conducted by the Supreme Court Medical Clinic or by a psychologist and/or psychiatrist duly accredited by the Council.

It would seem that as things stood then, the JBC could very well rely on the evaluation of a private psychologist or psychiatrist not accredited by the JBC. Thus, the JBC cannot be faulted for accepting the psychological evaluations of mental health professionals not affiliated with the Supreme Court Clinic.

It goes without saying that Judge Floros appointment as RTC judge is fait accompli. What awaits us now is the seemingly overwhelming task of finding the PROPER, JUST AND EQUITABLE solution to Judge Floros almost seven years of suspension in the light of the fact that the penalty imposed herein does not merit a suspension of seven years.

Verily, the Supreme Court is vested with the power to promulgate rules concerning pleading, practice and procedure in all courts.[137] The Constitution limits this power through the admonition that such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights.[138]

Rule 140 of the Rules of Court outlines the procedure to be followed in administrative cases against judges. Glaringly, Rule 140 does not detail the steps to be taken in cases when the judge is preventively suspended pending investigation. This is the state of things even after its amendment by A.M. No. 01-810-SC which took effect on 1 October 2001.

The Supreme Courts power to suspend a judge, however, is inherent in its power of administrative supervision over all courts and the personnel thereof.[139] This power -- consistent with the power to promulgate rules concerning pleading, practice and procedure in all courts -- is hemmed in only by the Constitution which prescribes that an adjective law cannot, among other things, diminish, increase or modify substantive rights.

The resolution of 20 July 1999 which put Judge Floro under preventive suspension resolved to:

(1) DIRECT Judge Florentino V. Floro, Jr. to answer the foregoing charges against him within ten (10) days from notice; (2) REFER this case to Retired Justice Pedro Ramirez, Consultant, Office of the Court Administrator for investigation, report and recommendation, within sixty (60) days from receipt of the

records thereof; (3) SUBJECT Judge Florentino V. Floro, Jr. for appropriate psychological or mental examination to be conducted by the proper office of the Supreme Court or any duly authorized medical and/or mental institution.

Moreover, the Court RESOLVED to place Judge Florentino Floro, effective immediately under PREVENTIVE SUSPENSION for the duration of the investigation of the administrative charges against him.[140]

As can be gleaned from the above-quoted resolution, Judge Floros suspension, albeit indefinite, was for the duration of the investigation of the 13 charges against him which the Court pegged at 60 days from the time of receipt by the investigator of the records of the case. Rule 140, as amended, now states that (t)he investigating Justice or Judge shall terminate the investigation within ninety (90) days from the date of its commencement or within such extension as the Supreme Court may grant [141] and, (w)ithin thirty (30) days from the termination of the investigation, the investigating Justice or Judge shall submit to the Supreme Court a report containing findings of fact and recommendation.[142]

From the foregoing, the rule now is that a Judge can be preventively suspended not only for the entire period of his investigation which would be 90 days (unless extended by the Supreme Court) but also for the 30 days that it would take the investigating judge or justice to come up with his report. Moreover, the Court may preventively suspend a judge until such time that a final decision is reached in the administrative case against him or her.[143] This is because

[U]nlike ordinary civil service officials and employees, judges who are charged with a serious offense warranting preventive suspension are not automatically reinstated upon expiration of the ninety (90)day period, as mandated above. The Court may preventively suspend a judge until a final decision is reached in the administrative case especially where there is a strong likelihood of his guilt or complicity in the offense charged. Indeed, the measure is intended to shield the public from any further damage or wrongdoing that may be caused by the continued assumption of office by the erring judge. It is also intended to protect the courts image as temples of justice where litigants are heard, rights and conflicts settled and justice solemnly dispensed.

This is a necessary consequence that a judge must bear for the privilege of occupying an exalted position. Among civil servants, a judge is indeed in a class all its own. After all, in the vast government bureaucracy, judges are beacon lights looked upon as the embodiment of all what is right, just and proper, the ultimate weapons against justice and oppression.[144]

In the case of Judge Floro, he is under preventive suspension up to the present because of the serious charge of mental unfitness aggravated by the fact that the actual investigation into his cases dragged on for a much longer period than 90 days. And the reasons for the delay, for the most part, can be directly ascribed to Judge Floro himself. From the records, it would seem that not only did Judge Floro move for several re-settings of the hearings of his cases; he likewise dragged his feet with respect to the order to submit himself to the appropriate psychological/mental examination. Worse, what started out as single case against him ballooned into 10 cases which were consolidated into one due to common questions of fact and law.[145] All in all, Judge Floro filed seven cases against those he perceived had connived to remove and/or suspend him from office, the last of which he filed on 19 May 2003 against Justice Ramirez.[146]

Be that as it may, EQUITY demands that we exercise utmost compassion in this case considering that the rules on preventive suspension of judges, not having been expressly included in the Rules of Court, are amorphous at best. We have ruled similarly in the case of Judge Philbert Iturralde, thus:

Be that as it may, we cannot in conscience hold that a judge who was placed under preventive suspension pending investigation is not entitled to the payment of back salaries, allowances and other economic benefits for the entire duration of the preventive suspension. The inequity of the doctrine as applied to judges is clearly apparent, given the peculiar circumstance in which a judge finds himself preventively suspended by the Court until further orders.

In this case, Judge Iturralde was preventively suspended for 13 months, during which period he was not paid his salaries, allowances and other benefits. Except for a teaching job that the Court permitted him to undertake pending resolution of the administrative case, Judge Iturralde had no other source of income. He thus incurred several loans to provide for his familys basic needs.

It would thus be unjust to deprive Judge Iturralde of his back salaries, allowances and other economic benefits for the entire period that he was preventively suspended. As we have said in Gloria v. Court of Appeals, preventive suspension pending investigation is not a penalty but only a measure intended to enable the disciplining authority to conduct an unhampered formal investigation. We held that ninety (90) days is ample time to conclude the investigation of an administrative case. Beyond ninety (90) days, the preventive suspension is no longer justified. Hence, for purposes of determining the extent of back salaries, allowances and other benefits that a judge may receive during the period of his preventive suspension, we hold that the ninety-day maximum period set in Gloria v. Court of Appeals, should likewise be applied.

Concededly, there may be instances when an investigation would extend beyond ninety (90) days and such may not be entirely unjustified. Nevertheless, we believe that in such a situation, it would be unfair to withhold his salaries and other economic benefits for the entire duration of the preventive

suspension, moreso if the delay in the resolution of the case was not due to his fault. Upon being found innocent of the administrative charge, his preventive suspension exceeding the ninety-day (90) period actually becomes without basis and would indeed be nothing short of punitive. It must be emphasized that his subsequent acquittal completely removed the cause for his preventive suspension in the first place. Necessarily, therefore, we must rectify its effects on just and equitable grounds.[147]

Taking off from the case of Judge Iturralde, we hold that Judge Floro is likewise entitled to the payment of back salaries, allowances and other economic benefits being at the receiving end of a rule peculiar to judges who find themselves preventively suspended by the Court until further orders or, as this case, for the duration of the investigation. Judge Iturraldes suspension of 13 months even pales in comparison to Judge Floros suspension of 81 months, more or less. During this entire excruciating period of waiting, Judge Floro could not practice his profession, thus putting him solely at the mercy of his brothers largesse. And, though he was given donations by those who came to him for healing, obviously, these could not compensate for his loss of income as Judge.

Unlike the case of Judge Iturralde, however, wherein we held that the period of suspension exceeding 90 days should be the basis for the payment of back salaries, we hold that, as a matter of equity, Judge Floro is entitled to back salaries, allowances and other economic benefits for a period corresponding to three of his almost seven years suspension. We cannot apply the ruling in Gloria that any suspension served beyond 90 days must be compensated as we would be, in effect, rewarding Judge Floros propensity to delay the resolution of his case through the indiscriminate filing of administrative cases against those he perceived connived to oust him out of office. In Judge Iturraldes case, the investigation was not delayed through any fault of his. More importantly, Judge Iturralde was ultimately held innocent, thus, using by analogy Gloria v. Court of Appeals, his suspension in excess of 90 days was already in the nature of a penalty which cannot be countenanced precisely because, being innocent, he cannot be penalized. Judge Floro, on the other hand, and as already discussed, contributed to the delay in the investigation of his cases. Moreover, unlike Judge Iturralde, Judge Floro has not been adjudged innocent of all the 13 charges against him.

These facts, however, as we have already discussed, do not put Judge Floro beyond the reach of equity. To paraphrase Justice Brandeis, equity does not demand that its suitors are free of blame. As we are wont to say:

Equity as the complement of legal jurisdiction seeks to reach and do complete justice where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent so to do. Equity regards the spirit of and not the letter, the intent and not the form, the substance rather than the circumstance, as it is variously expressed by different courts.

Gacad vs Judge Clapis A.M. No. RTJ-10-2257 July 17, 2012

FACTS: Petitioner filed a Verified Complaint against Judge Clapis for Grave Misconduct and Corrupt Practices, Grave Abuse of Discretion, Gross Ignorance of the Law, and violations of Canon 1 (Rule 1.01, 1.02), Canon 2 (Rule 2.01), and Canon 3 (Rule 3.05) of the Code of Judicial Conduct relative to a criminal case. Petitioner alleged that she met Judge Clapis at the Golden Palace Hotel in Tagum City to talk about the case of her brother. The prosecutor of the said case, Graciano Arafol, informed the petitioner that the Judge will do everything for her favor but on the pretext that in return she has to give P50,000.00 to the Judge. During the meeting, the Judge, after being satisfied of the promise of the petitioner for that amount, told her "Sige, kay ako na bahala, gamuson nato ni sila." (Okay, leave it all to me, we shall crush them.) When the case was set on hearing, the Notices of Hearings were mailed to the petitioner only after the date of hearing. Judge Clapis started conducting the bail hearings without an application for bail and granting the same without affording the prosecution the opportunity to prove that the guilt of the accused is strong. He set a preliminary conference seven months from the date it was set, patently contrary to his declaration of speedy trial for the case. However, the judge claimed that notices were made verbally because of time constraints. Nevertheless, he stressed that both sides were given the opportunity to be heard since in almost all proceedings, petitioner was in court and the orders were done in open court. He admitted that his personnel inadvertently scheduled the preliminary conference of the case.

ISSUE: Whether or not the respondent Judge is guilty of the charges.

HELD: YES. Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of behavior in connection with ones performance of official functions and duties. For grave or gross misconduct to exist, the judicial act complained of should be corrupt or inspired by the intention to violate the law, or a persistent disregard of well-known rules. The misconduct must imply wrongful intention and not a mere error of judgment. The acts of Judge Clapis in meeting the petitioner, a litigant in a case pending before his sala and telling those words, constitute gross misconduct. Judge Clapis wrongful intention and lack of judicial reasoning are made overt by the circumstances on record. Judge Clapis cannot escape liability by

shifting the blame to his court personnel. He ought to know that judges are ultimately responsible for order and efficiency in their courts, and the subordinates are not the guardians of the judges responsibility. The arbitrary actions of respondent judge, taken together, give doubt as to his impartiality, integrity and propriety. His acts amount to gross misconduct constituting violations of the New Code of Judicial Conduct, particularly: Canon 2, Section 1 and 2; Canon 3, Section 2 and 4; and Canon 4, Section 1. We also find Judge Clapis liable for gross ignorance of the law for conducting bail hearings without a petition for bail being filed by the accused and without affording the prosecution an opportunity to prove that the guilt of the accused is strong. Here, the act of Judge Clapis is not a mere deficiency in prudence, discretion and judgment but a patent disregard of well-known rules. When an error is so gross and patent, such error produces an inference of bad faith, making the judge liable for gross ignorance of the law. If judges are allowed to wantonly misuse the powers vested in them by the law, there will not only be confusion in the administration of justice but also oppressive disregard of the basic requirements of due process.

EN BANC [A.M. No. RTJ-99-1431. January 23, 2002] JUDGE FLORENTINO M. ALUMBRES, complainant, vs. JUDGE JOSE F. CAOIBES, JR., RTC, Branch 253, Las Pias City, respondent. DECISION MELO, J: Upon his assumption to office, a judge ceases to be an ordinary citizen. He becomes the visible representation of the law, and more importantly, of justice. From him, the people draw their will and awareness to obey the law. Thus, a magistrate of the law must comport himself at all times in such a manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice. He must be the first to abide by the law and weave an example for others to follow. He must studiously avoid even the slightest infraction of the law. Sadly, the actions in the instant case of complainant and respondent, both of whom are members of the Judiciary, fall far short of this exacting standard. Judge Jose F. Caoibes Jr., the Presiding Judge of Branch 253 of the Regional Trial Court of Las Pias City, stands charged with Grave Misconduct/Conduct Unbecoming to a Judicial Officer for allegedly inflicting fistic blows one to the right forehead and another to the left side of the jaw on Judge Florentino M. Alumbres, Presiding Judge of Branch 255 of the Regional Trial Court of Las Pias City on May 20, 1997 outside the Staff Room of Branch 253, in plain view of several lawyers and litigants. The facts, as culled from the records, are as follows: Branch 253 was a newly-created branch of the Regional Trial Court of Las Pias City. Thus, when respondent Caoibes was appointed presiding judge thereof, he had the privilege of

recommending to the Supreme Court the appointment of employees of his own choice. Complainant Alumbres, who was then the executive judge of the court, saw in this a golden opportunity to secure employment for his son. Learning that Caoibes office furniture had yet to be delivered by the Supreme Court, Alumbres lent an executive table to the former for his temporary use. When Caoibes assumed office on September 16, 1996, Alumbres invited the former to lunch, during which he proposed that Caoibes recommend his son for appointment as utility man for Branch 253. Caoibes agreed. The next day, however, Alumbres proposed that instead of utility man, Caoibes should recommend his son for appointment as process server of Branch 253. Again, Caoibes agreed. Alumbres, as executive judge, favorably endorsed the appointment of his son, as recommended by Caoibes. However, his son was not appointed as process server because the Court Administrator found it inappropriate for Alumbres to endorse the appointment of his own son, rendering therefore such recommendation nepotistic in character. When Alumbres was replaced as executive judge by Judge Bonifacio Sanz Maceda, he asked his replacement to favorably endorse his sons appointment as process server of Branch 253. Judge Maceda did so. This time, however, Caoibes reneged on his agreement with Alumbres. Caoibes withdrew his earlier recommendation of Alumbres son and, instead, recommended David Cario for process server of Branch 253. Learning that an executive table had already been delivered to Caoibes, Alumbres, in the morning of May 20, 1997, sent his deputy sheriff to the chambers of Caoibes to take back the table earlier lent to Caoibes. Respondent Caoibes told the deputy sheriff that he would continue using the table until his office furniture was delivered by the Supreme Court. The deputy sheriff left to convey this message to Alumbres. Caoibes, thereafter went to Judge Maceda to ask that he be allowed to continue using the table lent to him by Alumbres. Judge Maceda opined that Caoibescould continue using the table, adding that if Alumbres needed a table, he (Judge Maceda) could lend one of his own tables to Alumbres. In the meantime, Alumbres had been informed of Caoibes refusal to return the table. Alumbres suspended court proceedings and, accompanied by his process server and the deputy sheriff, went to chambers of Caoibes to reclaim the table. Informed of their purpose, the deputy sheriff of Branch 253 informed the group to wait for the return of Caoibes since the latter still had some official papers on the table. Since the Staff Room of Branch 253 was in front of the chambers of Judge Maceda, Alumbres decided to wait for Caoibes in front thereof. Several lawyers and litigants who had hearings were all along the hallway. Informed by his utility man that Alumbres was in his staff room to recover the table, Caoibes left Judge Maceda to see Alumbres. Caoibes saw Alumbres, with hands on his hips, standing along the hallway. Caoibes greeted Alumbres Hoy, ano ba ang atin? The latter replied in an angry tone Joey, kukunin ko na ang table ko. Akin naman iyun, eh. In response, Caoibes put his left arm around Alumbres shoulder, extended his right hand to shake the latters right hand, at the same time saying Huwag naman. Halika, pag-usapan natin dine. Despite the cordial gesture,Alumbres held Caoibes right wrist and forcefully jerked it. Incensed at the fierce reaction of Alumbres, Caoibes shouted Tarantado ito, ah, and swung his left arm towards Alumbres, hitting him on the right temple. Caoibes also delivered a right hook, grazing Alumbres lower jaw. The latter felt dazed and the right lens of his eyeglass dropped to

the floor. Before the incident could worsen, Judge Maceda, who had just emerged from his chambers, and one of the deputy sheriffs, placed themselves between the two. Alumbres swung at Caoibes while the latter was being led away by Judge Maceda but the blow missed. The incident, involving as it did members of the judiciary, was given extensive coverage by the media. According to the medical certificate issued by the City Health Officer, the left side of Alumbres chin was swollen and had a laceration about 1 cm. wide, while his right temporal region, anterior aspect, had a pin-head sized laceration as well as slight swelling and reddening. In his defense, Caoibes denied having dealt fistic blows to Alumbres. He claimed that when his right wrist was jerked by Alumbres, he struggled to free himself and that, in the process, his right palm slightly hit the face of Alumbres. Moreover, he asserted that when he was being led away by Judge Maceda, Alumbres managed to extricate himself from those pacifying him (Alumbres), and threw several punches at Caoibes, all of which missed. He claimed that during this event, he instinctively thrust his right arm, implying that his right hand may have hit the complainants jaw. As succinctly defined by Justice Romeo J. Callejo, the Justice to whom this case was assigned for investigation, the threshold issue to be determined is whether or not Judge Caoibesdeliberately inflicted fistic blows to complainant Judge Alumbres. We agree with the Investigating Justice that, indeed, Caoibes threw two punches at Alumbres, the first hitting his right temple and the second, the left side of his jaw. In the trenchant words of Justice Callejo: The investigating Justice is not convinced of the claim of the respondent that he unintentionally and slightly hit the face of the complainant as the respondent struggled to free himself from the grip of the complainant. We did find it incredible, if not preposterous, that, as the respondent struggled to free himself from the grip of the complainant, the left hand of the respondent would go astray and hit slightly the face of the complainant. For, in such a situation, it would have been instinctive for the respondent to hold, with his left hand, the hand of the complainant holding on to the right hand of the respondent to free his right hand from the grip of the complainant. Equally implausible is respondents claim that he thrusted his hand towards the complainant as the latter threw punches at the respondent as the latter was being brought by Judge Bonifacio Sanz Maceda to his chambers. The respondent did not specifically declare whether or not he hit any part of the body of the complainant and, if so, what part of the body of the complainant was hit. Judge Bonifacio Sanz Maceda was equally nebulous when he merely declared that the respondent was able to reach the complainant. (Investigation Report, p. 10). We also concur with Justice Callejo when he states that contrary to the claim of Alumbres, the punches of Caoibes were not severe as the injuries sustained by Alumbres were merely superficial, the size of a pinhead similar to a mosquito bite. Nonetheless, the slightness of the injuries suffered by Alumbres do not detract from the gravity of the offense committed. Canon 2 of the Code of Judicial Conduct states that A judge should avoid impropriety and the appearance of impropriety in all activities. In amplification, Rule 2.01 provides that A judge should behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. Similarly, the Canon of Judicial Ethics provide that a judges

official conduct should be free from the appearance of impropriety, and his personal behavior, not only on the bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach (Marces, Sr. vs. Arcangel, 258 SCRA 503 [1996]). Being the visible representation of the law and the embodiment of the peoples sense of justice, he must be studiously careful himself to avoid even the slightest infraction of the law, lest it be a demoralizing example to others (Canon 22, Canon of Judicial Ethics). Judge Caoibes has failed to live up to the standards of morality and uprightness demanded of a judge. As Justice Callejo observes: In this case, the respondent used his hands and inflicted physical injuries on the complainant, a felony in Article 266 of the Revised Penal Code and during office hours at that. And the respondent did so in full view of lawyers and litigants who were in the vicinity of the court and while judicial proceedings were ongoing. The respondent took the law unto his own hands and subjected the complainant with physical injuries. By his felonious acts, the respondent downgraded himself to an ordinary criminal, not a dispenser of justice. The respondent ignored the law he swore to uphold and defend and hid behind the law of the jungle. (Investigation Report, p. 11). Caoibes use of physical violence against a colleague reveals a marked lack of judicial temperament and self-restraint, traits not only desirable, but indispensable, for every judge to possess besides the basic equipment of learning in the law. Such behavior puts the judiciary into disrepute. While Alumbres himself may have provoked the incident in question by his forceful reaction to Caoibes attempt to settle their differences, the unruly behavior and/or violent reaction ofAlumbres may not be used to justify the felonious act of respondent. As incisively observed by the Investigating Justice, no judge, from the lowest to the highest, should be allowed to take the law into his own hands. That is the law of the jungle, not the law of a civilized society to which [Alumbres] and [Caoibes] belong. Moreover, courts are looked upon by the people with high respect and are regarded sacred places, where litigants are heard, rights and conflicts settled and justice solemnly dispensed. Misbehavior within and around their vicinity diminishes their sanctity and dignity (Bedural vs. Edroso, AM No. 00-1395, October 12, 2000). By fighting within court premises, the parties have failed, not only to observe the proper decorum expected of members of the judiciary, they have failed to promote public confidence in the integrity and impartiality of the judiciary. More contemptible, the altercation arose out of a squabble involving a mere table. In Quiroz vs. Orfila (272 SCRA 324 [1997]), we declared: Fighting between court employees during office hours is disgraceful behavior reflecting adversely on the good image of the judiciary. It displays a cavalier attitude towards the seriousness and dignity with which court business should be treated. Shouting at one another in the workplace and during office hours is arrant discourtesy and disrespect not only towards co-workers, but to the court as well. The behavior of the parties was totally unbecoming members of the judicial service. Such conduct cannot be countenanced.

In fine, we find the infliction by Judge Caoibes of fistic blows on Judge Alumbres to be acts of serious impropriety unbecoming a judge, in violation of Canon 2 of the Code of Judicial Conduct. Section 2 of Rule 140 of the Rules of Court classifies administrative charges as serious, less serious, or light. Section 3 of Rule 140 considers violations of the Code of Judicial Conduct to be serious charges. For a serious charge, the respondent found culpable therefor may be imposed the sanction of either: (1) dismissal from the service and disqualification from reinstatement or appointment to any public office; (2) suspension for three months without salary or benefits; or (3) a fine of not less than P20,000.00 but not more than P40,000.00. While the Court is convinced that, based on the evidence on record, Judge Caoibes is culpable of a serious charge, it is likewise clear that he was provoked into the fracas that ensued. This circumstance leads us to temper the penalty imposable. WHEREFORE, premises considered, we find Judge Jose F. Caoibes Jr. GUILTY of violating the Code of Judicial Conduct and hereby impose upon him a fine of TWENTY THOUSAND PESOS (P20,000.00), with a warning that a repetition of the same or similar acts in the future will be dealt with more severely. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

G.R. No. L-27934

September 18, 1967 PIMENTEL, petitioner,

CONSTANTE vs. THE HONORABLE JUDGE ANGELINO C. SALANGA, respondent. Raymundo A. Armovit Constante P. Pimentel for and in Respondent Judge for and in his behalf as respondent. RESOLUTION his

for behalf

as

petitioner. petitioner.

SANCHEZ, J.: Challenged here in an original petition for certiorari and/or prohibition is the right of respondent judge of the Court of First Instance of Ilocos Sur (Branch IV) to sit in judgment in cases where petitioner, a practicing attorney, appears as counsel. Petitioner's petition recites the facts that follow: Petitioner is counsel of record in cases pending before respondent judge, viz: (1) Civil Case 21-C, entitled "Pablo Festejo et al., petitioners, vs. Marciano Cabildo et al., respondents," a special civil action for mandamus to compel payment of salaries of elective and

appointive municipal officials; petitioner is counsel for principal respondent, Acting Mayor Brigido Vilog; (2) Criminal Case 4898 and C-5, entitled "People of the Philippines, plaintiff, vs. Constante Anies, accused," for frustrated murder; petitioner is the private prosecutor therein; (3) Criminal Case C-93, entitled "People of the Philippines, plaintiff, vs. Romeo Pimentel, accused," for frustrated homicide; petitioner is defense counsel therein; (4) Election Case 2470, entitled "Avelino Balbin, protestant, vs. Clemente Abaya, protestee," an election protest involving the office of mayor of Candon, Ilocos Sur; petitioner is counsel for protestant therein. Petitioner's misgivings stem from the fact that he is complainant in an administrative case he himself lodged in this Court on May 12, 1967, against respondent judge upon averments of "serious misconduct, inefficiency in office, partiality, ignorance of the law and incompetence."1 Petitioner seeks in the complaint therein to have respondent judge immediately suspended from office, and, after due notice and hearing, removed therefrom. The judge's return traversed the factual averments. Whereupon, this Court, on July 13, 1967, referred the administrative case to Mr. Justice Eulogio Serrano of the Court of Appeals "for investigation, report and recommendation." That case is still pending. On July 31, 1967, petitioner moved in the court below to have respondent judge disqualify himself from sitting in Civil Case 21-C, Criminal Cases 4898 and C-5, and Election Case 2470 aforesaid. He there prayed that the records of those cases be transferred to another sala, either at Narvacan or Vigan, both of Ilocos Sur. On August 1, 1967, respondent judge rejected the foregoing motion. He stood his ground with the statement that the administrative complaint against him is no cause for disqualification under the Rules of Court; that Civil Case 21-C and Electoral Case 2470 "are now on the final stages of termination" and transfer thereof to another sala "would only delay their final disposition, make the parties suffer [from] further efforts and expenses", and "would be violative" of Administrative Order 371 of the Department of Justice defining the court's territorial jurisdiction; and that he is "sworn to administer justice in accordance with the law and the merits of the cases to be heard and decided by him." Civil Case 21-C was then calendared for August 10 and 11, 1967. A move to reconsider the foregoing resolution failed of its purpose. Civil Case 21-C was rescheduled for hearing from August 10 and 11, 1967 to August 22 and 23, 1967. Hence, the present petition. Petitioner makes his exercise along the following lines: Immediate resolution of the problem of disqualification "is a matter of profound importance, particularly on his career and potential as a practitioner of law; his cases "may fall by the accident of raffle into the sala of respondent Judge" and he cannot "resign from an accepted case every time it falls" therein; his clients will have "the natural hesitation to retain as counsel one who is sort of unacceptable to the presiding judge." Petitioner winds up with a prayer that respondent judge be stopped from further sitting in or otherwise trying or deciding the cases heretofore mentioned. He asks for the issuance forthwith of a writ of preliminary injunction ex parte.1awphl.nt We now resolve the petition.

Is a judge disqualified from acting in litigations in which counsel of record for one of the parties is his adversary in an administrative case said counsel lodged against him? The answer is to be sought within the terms of Section 1, Rule 137, Rules of Court,2 which reads in full: Sec. 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consaguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which be has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record. A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. Petitioner says that, arguably, his case comes within the coverage of the second paragraph of the rule just quoted. The theory advocated is that the present (1964) rules for the first time provide a broad policy-oriented ground for disqualification of judges. It is his submission that a judge may now be barred from the bench in specific cases for reasons other than those enumerated in the law. He stresses that respondent judge, in the factual environment presented, did not make use of his sound discretion when he refused to disqualify himself from acting in the cases referred to. Before the second paragraph of Section 1, Rule 137 of the new Rules, came into being, law and early jurisprudence gave no room for a judge, on objection of a party, to disqualify himself, absent any of the specific grounds for disqualification set forth in the law. The following from People vs. Moreno [1949], 83 Phil. 286, 294, is expressive of the rule: "To take or not to take cognizance of a case, does not depend upon the discretion of a judge not legally disqualified to sit in a given case. It is his duty not to sit in its trial and decision if legally disqualified; but if the judge is not disqualified, it is a matter of official duty for him to proceed with the trial and decision of the case. He cannot shirk the responsibility without the risk of being called upon to account for his dereliction."3 Then came Del Castillo vs. Javelona, L-16742, September 29, 1962, from which sprang the added second paragraph of Section 1, Rule 137, aforequoted. In Del Castillo, the judge inhibited himself from the case because the lawyer of the party defendant was his first cousin.4 The judge felt that if defendant should win, his blood relationship with defendant's lawyer might cast some suspicion on his integrity; but, if defendant be the defeated party, it might bring unpleasant consequences. Plaintiff protested the judge's posture. In upholding the judge, we declared: . . . Obviously, Rule 126 [of the old Rules] enumerates the grounds for disqualification of a judge upon being challenged and under which he should disqualify himself. The rule, however, has never been interpreted to prohibit a judge from voluntarily inhibiting himself, in the absence of any challenge by either party, due to his close blood relationship with counsel for one of said parties. Considering the spirit of the Rule, it would seem that cases of voluntary inhibition, based on good, sound and/or ethical grounds, is a matter of discretion on the part of the judge and the official who is empowered to act upon the request for such inhibition. xxx xxx xxx

. . . In other words, while Rule 126 provides for disqualification, it does not include nor preclude cases and circumstances for voluntary inhibition which depends upon the discretion of the officers concerned.5 The Del Castillo opinion made the pointed observation that the cases cited by plaintiff are instances where the judge was challenged not cases of voluntary inhibition. Indeed, as early as 1931, clear intimation there was that voluntary inhibition upon sound grounds may be recognized, when this Court said in one case:6". . . It is true that if Judge Garduo had abstained from trying the case at bar, there would have been less susceptibility to suspicion. But, as a matter of law, the grounds for the motion of recusation do not constitute a legal cause for the disqualification of a judge." Thus, the genesis of the provision (paragraph 2, Section 1, Rule 137), not to say the letter thereof, clearly illumines the course of construction we should take. The exercise of sound discretion mentioned in the rule has reference exclusively to a situation where a judge disqualifies himself, not when he goes forward with the case.7 For, the permissive authority given a judge in the second paragraph of Section 1, Rule 137, is only in the matter of disqualification, not otherwise. Better stated yet, when a judge does not inhibit himself, and he is not legally disqualified by the first paragraph of Section 1, Rule 137, the rule remains as it has been he has to continue with the case.1awphl.nt So it is, that the state of the law, with respect to the situation before us, is unaffected by the amendment (paragraph 2 of Section 1, Rule 137) introduced in the 1964 Rules. And it is this: A judge cannot be disqualified by a litigant or his lawyer for grounds other than those specified in the first paragraph of Section 1, Rule 137. This is not to say that all avenues of relief are closed to a party properly aggrieved. If a litigant is denied a fair and impartial trial, induced by the judge's bias or prejudice, we will not hesitate to order a new trial, if necessary, in the interest of justice. Such was the view taken by this Court in Dais vs. Torres, 57 Phil. 897, 902-904. In that case, we found that the filing of charges by a party against a judge generated "resentment" or the judge's part that led to his "bias or prejudice, which is reflected in the decision." We there discoursed on the "principle of impartiality, disinterestedness, and fairness on the part of the judge" which "is as old as the history of courts." We followed this with the pronouncement that, upon the circumstances obtaining, we did not feel assured that the trial judge's finding were not influenced by bias or prejudice. Accordingly, we set aside the judgment and directed a new trial.8 Efforts to attain fair, just and impartial trial and decision, have a natural and alluring appeal. But, we are not licensed to indulge in unjustified assumptions, or make a speculative approach to this ideal. It ill behooves this Court to tar and feather a judge as biased or prejudiced, simply because counsel for a party litigant happens to complain against him. As applied here, respondent judge has not as yet crossed the line that divides partiality and impartiality. He has not thus far stepped to one side of the fulcrum. No act or conduct of his would show arbitrariness or prejudice. Therefore, we are not to assume what respondent judge, not otherwise legally disqualified, will do in a case before him.9 We have had occasion to rule in a criminal case that a charge made before trial that a party "will not be given a fair, impartial and just hearing" is "premature."10 Prejudice is not to be presumed. Especially if weighed against a judge's legal obligation under his oath to administer justice "without respect to person and do

equal right to the poor and the rich."11 To disqualify or not to disqualify himself then, as far as respondent judge is concerned, is a matter of conscience. All the foregoing notwithstanding, this should be a good occasion as any to draw attention of all judges to appropriate guidelines in a situation where their capacity to try and decide a case fairly and judiciously comes to the fore by way of challenge from any one of the parties. A judge may not be legally prohibited from sitting in a litigation. But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstance reasonably capable of inciting such a state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. A salutary norm is that he reflect on the probability that a losing party might nurture at the back of his mind the thought that the judge had unmeritoriously tilted the scales of justice against him. That passion on the part of a judge may be generated because of serious charges of misconduct against him by a suitor or his counsel, is not altogether remote. He is a man, subject to the frailties of other men. He should, therefore, exercise great care and caution before making up his mind to act or withdraw from a suit where that party or counsel is involved. He could in good grace inhibit himself where that case could be heard by another judge and where no appreciable prejudice would be occasioned to others involved therein. On the result of his decisions to sit or not to sit may depend to a great extent the allimportant confidence in the impartiality of the judiciary. If after reflection he should resolve to voluntarily desist from sitting in a case where his motives or fairness might be seriously impugned, his action is to be interpreted as giving meaning and substance to the second paragraph of Section 1, Rule 137. He serves the cause of the law who forestalls miscarriage of justice. In the end we are persuaded to say that since respondent judge is not legally under obligation to disqualify himself, we may not, on certiorari or prohibition, prevent him from sitting, trying and rendering judgment in the cases herein mentioned.12 Upon the premises, the petition herein for certiorari and prohibition is denied. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Castro, Angeles and Fernando, JJ., concur.

A.M. No. 87-9-3918-RTC October 26, 1987 QUERY OF EXECUTIVE JUDGE ESTRELLA T. ESTRADA, REGIONAL TRIAL COURT OF MAIOLOS, BULACAN, ON TIHE CONFLICTING VIEWS OF REGIONAL TRIAL COURT JUDGES MASADAO and ELIZAGA RE: CRIMINAL CASE NO. 4954-M RESOLUTION

GUTIERREZ, JR., J.: The issue before us brings to mind the words of Eugen Ehrlich, philosopher, who stated: "There is no guaranty of justice except the personality of a judge." (Ehrlich, "Freedom of Decision", The Science of Legal Method, 0 Mod. Leg. Philos, Ser. 65, 1917 trans. by Bruncken). Indeed, judicial integrity is the first and highest qualification a judge must possess integrity

maintained especially in cognizance of the limits ofman. In this wise, we cite the oft quoted example of a judge voluntarily inhibiting himself so as to preserve the prized ideal of "the cold neutrality of an impartial judge" implicit in the guarantee of due process (Mateo, Jr. v. Villaluz, 50 SCRA 18). Submitted for the consideration of this Court is the question of who shall resolve a motion for reconsideration filed against the decision of Judge Roy A. Masadao, Jr., after he had voluntarily inhibited himself from further sitting in Criminal Case No. 4954-M of the Regional Trial Court of Bulacan, Branch 9, Malolos entitled "People of the Philippines v. Jaime Tadeo". The following facts gave rise to the present controversy: On May 4, 1987, Judge Roy A. Masadao, Jr., rendered a decision in the aforementioned criminal case finding the accused guilty of the crime of estafa as follows: WHEREFORE, premises considered, the Court finds accused JAIME TADEO guilty beyond reasonable doubt as principal of the crime of ESTAFA as charged in the Information and hereby sentences him to suffer an indeterminate period of imprisonment of six (6) YEARS and ONE (1) DAY to EIGHT (8) YEARS of prision mayor, as minimum, to TEN (10) YEARS and ONE (1) DAY to TWELVE (12) YEARS of prision mayor, as maximum, and all the accessory penalties provided by law, with costs de officio. (p. 10, Annex "A"). * On July 11, 1987, counsel for the accused, Atty. Efren C. Moncupa, filed a motion for reconsideration which was submitted without arguments. On July 23, 1987, retired Justice J. B. L. Reyes entered his appearance for the accused, wherefore, on July 30, 1987, Judge Masadao issued an order inhibiting himself from further sitting in the case on the ground that retired Justice J. B. L. Reyes had been among those who had recommended him to the Bench. Judge Masadao directed that the case be transmitted to Executive Judge Estrena T. Estrada for re-raffling among the other branches of the court for further proceedings. On August 6, 1987, a raffle was conducted and the case was assigned to Branch No. 10 of the Regional Trial Court of Bulacan, presided over by Judge Luciano G. Elizaga. On August 7, 1987, Judge Elizaga returned the records of the case with an accompanying letter stating a refusal to act on the aforesaid motion for reconsideration and assailing the re-raffling of the case as impractical and uncalled for. On August 13, 1987, Judge Masadao replied by way of a second Indorsement justifying his decision and standing pat on his order of inhibition, unless and until overruled by judicial authorities of higher rank. Wherefore, Executive Judge Estrada certified the matter to us. Section 1, Rule 137 of the Revised Rules of Court embodies the rule on disqualification and inhibition of judges. The rule on disqualification provides: No judge or judicial off icer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir. legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of civil law, or in which he has been executor, administrator, guardian,

trustee or counsel, in which he has presided in any inferior court when his ruling or decision is the subject of review, without written consent of an the parties in interest, signed by them and entered upon the record (Par. 1, Sec. 1, Rule 137, Revised Rules of Court). On the other hand, where no grounds for disqualification as above enumerated exist, as in the case at bar, the rule on inhibition provides: A judge may, in the exercise of his discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above (Par. 2, Sec. 1, Rule 137, supra). The exercise of this discretion and the validity of the reasons for inhibition are now put in issue before us. It is clear from a reading of the law that intimacy or friendship between a judge and an attorney of record of one of the parties to a suit is no ground for disqualification. In Vda. de Bonifacio v. B.L.T. Bus Co., Inc. (34 SCRA 618, 631), we held that the fact "that one of the counsels in a case was a classmate of the trial judge is not a legal ground for the disqualification of said judge. To allow it would unnecessarily burden other trial judges to whom the case would be transferred. Ultimately, confusion would result, for under a different rule, a judge would be barred from sitting in a case whenever one of his former classmates (and he could have many) appeared." Likewise, the rule applies when the lawyer of the defendant was a former associate of the judge, when he was practising law (Austria v. Masaquel, 20 SCRA 1247, 1255). Judge Elizaga correctly commented on the dilemma with which his colleague was faced: " ... this is one rare opportunity for the presiding Judge of RTC, Branch 9 to show (1) that Justice J.B.L. Reyes who recommended him to the Bench did not err in so recommending him for his competence and known probity; (2) that he has conducted himself with the cold impartiality of an impartial judge; and (3) that no one can sway his judgment whoever he may be." Indeed, as President Manuel L. Quezon had advised: "Once you are appointed, do not be influenced by the recommendations of your sponsor or patron. for if you do, he will be the first to lose confidence in you" and former Chief Justice Paras adds: ... that is good policy for our judges to remember" (Paras, Consent and Dissent, p. 38). However, where the relationship between the judge and an attorney for a party is such that there would be a natural inclination to prejudice the case, the judge should be disqualified in order to guarantee a fair trial (State Ex. Rel. Tumer v. Marshall, 176 N.E. 454, 123 Ohio St., 586). A judge should strive to be at all times wholly free, disinterested, impartial, and independent. Elementary due process requires a hearing before an impartial and disinterested tribunal. A judge has both the duty of rendering a just decision and the duty of doing it in a manner completely free from suspicion as to its fairness and as to his integrity (Geotina v. Gonzales, 41 SCRA 73-74). However, men of the Bench are not without imperfections. A judge too, experiences the "tug and pull of purely personal preferences and prejudices which he shares with the rest of his fellow mortals" (Azucena v. Munoz, 33 SCRA 722, 723). The second paragraph of Section 1, Rule 137 of the Revised Rules of Court "made clear to the occupants of the Bench that outside of pecuniary interest, relationship or previous participation in the matter that calls for adjudication, there may be other causes that could conceivably erode the trait of objectivity, thus

calling for inhibition. That is to betray a sense of realism, for the factors that lead to preferences or predilections are many and varied." (Mateo, Jr. v. Villaluz, 50 SCRA 18) Among these may be the Filipino "utang na loob". Judge Masadao expounds on the matter thus: "For Filipinos, in particular, a sense of gratitude is one trait which invariably reigns supreme over any and all considerations in matters upon which such tender sentiment may somehow inexorably impinge. Generally, whoever owes a debt of favor endeavors to repay the same in any discernible fashion as soon as the opportunity therefore energes." Judge Masadao is not necessarily stretching the Filipino "utang an loob" gratitude which renders a man beholden to another, a sense of obligation which is valued as highly as pride and honor beyond its proper limits. The best way to show one's "utang na loob" to whoever recommended him is to do honor to the position, not only in rendering just, correct, and impartial decisions but doing so in a manner free from any suspicion as to their fairness and impartiality and as to the integrity of the judge. (See Martinez v. Gironella, 6 SCRA 245). Judge Elizaga is correct in rhetorically asking "In the remote possibility that a Motion for Reconsideration is filed in a case to every final order or decision of a judge by one who recommended him to the bench, should he escape responsibility by inhibiting himself from any further action and pass the buck to other judges?" The answer is a categorical NO.- The judge should not evade his responsibility. Inhibition is not allowed at every instance that a friend, classmate, associate or patron of a presiding judge appears before him as counsel for one of the parties to a case. "Utang na loob", per se, should not be a hindrance to the administration of justice. Nor should recognition of such value in Philippine society prevent the performance of one's duties as judge. However, where, as in this case, the judge admits that he may be suspected of surrendering to the persuasions of utang na loob or he may even succumb to it considering that he "and the members of his family, no less, shall ever remain obliged in eternal gratitude to Justice Reyes", the negative answer to the question of judge Elizaga yields to exceptions in extraordinary cases. The circumstances before Judge Masadao are not ordinary ones. Justice J.B.L. Reyes, one of the most distinguished legal scholars of our country and a towering paragon (to use the words of Judge Masadao), highly respected during his stints in the Office of the Solicitor General, Court of Appeals, and Supreme Court and through his post-retirement life, is no ordinary sponsor. The accused is an activist leader of peasant and farmer groups involved in rather controversial confrontations. Compelled to act in this case, Judge Masadao may be inclined to rule against his sponsor to demonstrate independence, Either way, the resulting impressions would not be salutary to the judicial system. We apply the guideline expressed in Pimentel v. Salanga (21 SCRA 160, 167-168): xxx xxx xxx ... A judge may not be legally prohibited from sitting in a litigation, this when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstances reasonably capable of inciting such a state of mind, he, should conduct a careful self-examination. He .shuold exercise his discretion in a way that the people's faith in the courts of justice is not impaired. A salutary norm is that he reflect on ,he

probability that a losing party might nurture at the back of his mnd the thought that the judge had unmeritoriously, tilted the scales of Justice against him. That passion on the part of a judge may he ge-nerated because of serious charges of misconduct against him by a suitor or his counsel. is not altogether remote. He is a man, subject to the frailties of other men. He should, therefore, exercise great care and caution before making up his mind to act or withdraw from asuit where that party or counsel is involved. He could in good grace inhibit himself where that case could be heard by another judge and where no appreciable prejudice would be occasioned to others involved thereon. On the result of his decisions to sit or not to sit may depend to a great extent that all-important confidence in the impartiality of the judiciary. If after reflection he should resolve to voluntarily desist from sitting in a case where his motives or fairness might be seriously impugned, his action is to be interpreted as giving meaning and substance to the second paragraph of Section 1, Rule 137. He serves the cause of the law who forestalls miscarriage of justice. We repeat. There are certain circumstances when a case could well be heard by another judge and no appreciable prejudice would be occasioned to others involved therein, where a voluntary inhibition may prove to be the better course of action. In that case, his fellow judges should be ready to help preserve the reality and the appearance of an impartial administration of justice. The administrative matter before us differs from most petitions involving a judge's disqualification. here, a judge voluntarily inhibits himself and, instead of a party or both parties filing a motion on the matter, it is another judge who insists that he continue with the case. A judge's decision to refuse to act on account of some disqualification is not conclusive, and his competency may be determined on an application for mandamus to compel him to act, However, as much as possible, the judge to whom a case is transferred should not resist too much the order of recusation unless the motives for inhibition are suspect. The prerogative more properly pertains to the parties to a suit whose rights are directly affected thereby, To accommodate every objection which a judge, to whom a case is transferred, may have, after the voluntary inhibition of a presiding judge, would not only disrupt administrative procedures of courts but would likewise entail further delay ;n the final resolution of cases. Internal wranglings between judges questioning each other's motivations should be avoided. We are not unmindful though of the burdens that may be imposed on other trial judges to whom such caws may be reassigned. Judge Elizaga's objections are not without their own merits. In certain cases, inhibition could amount to judges being recreant to their trust. However, even with all such considerations in mind, there is still cogency in the approach that would look with favor in the exercise of discretion in favor of disqualification, given the likelihood that bias or prejudice is unavoidable (Palang v. Zosa, 58 SCRA 776). The dictates of the due process guarantee of a fair and impartial tribunal override these concerns. Judge Masadao's actuations are within the terms of Paragraph 2, Section 1, Rule 137 of the Revised Rules of Court. The records do not indicate any improper exercise of a prerogative conferred on him by law. And, absent any abuse of discretion or manifest error, we hesitate to reverse his decision holding himself disqualified. Nor will the wisdom of such inhibition be delved into where the reasons therefor are concededly subjective. We also suggest that judges of equal standing should be reticent in passing judgment upon a matter of discretion and in refusing to act on cases referred to them on account of such discretion.

WHEREFORE, IN VIEW OF THE FOREGOING, Judge Roy A. Masadao, Jr.'s order of voluntary inhibition in an further proceedings in Criminal Case No. 4954-M of the Regional Trial Court of Bulacan, Branch 9, is hereby upheld. Judge Luciano G. Elizaga is hereby ordered to take cognizance of the said case as re-raffled to his sala. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

[A.M. No. RTJ-05-1910. April 15, 2005] ALFREDO HILADO, LOPEZ SUGAR CORPORATION and FIRST FARMERS HOLDING CORPORATION, complainants, vs. JUDGE AMOR A. REYES Regional Trial Court of Manila, Branch 21, respondent. DECISION CALLEJO, SR., J.: The instant administrative matter arose when Alfredo Hilado, Lopez Sugar Corporation and First Farmers Holding Corporation filed a verified Complaint[1] dated November 17, 2003 charging Judge Amor A. Reyes, Regional Trial Court (RTC) of Manila, Branch 21, with gross ignorance of the law, gross inefficiency, dereliction of duty, serious misconduct, partiality and violation of the Code of Judicial Conduct relative to Special Proceedings No. 00-97505 for issuance of letters of administration entitled Intestate Estate of Roberto S. Benedicto. Complainant Alfredo Hilado is the plaintiff in Civil Case No. 95-9137 entitled Manuel Lacson, et al. v. Roberto Benedicto, et al., filed before the RTC of Bacolod City, Branch 44, while complainants Lopez Sugar Corporation and First Farmers Holding Corporation are the lead plaintiffs/intervenors in Civil Case No. 11178 pending before the RTC of Bacolod City, Branch 41. Upon the death of Roberto Benedicto in May 2000, he was substituted by his estate in the aforementioned civil cases. Special Proceedings No. 00-97505 was raffled to the sala of the respondent Judge. She, thereafter, appointed Julita Campos Benedicto as the administratrix of the estate in an Order[2] dated August 2, 2000, and letters of administration were, thereafter, issued in favor of the latter. According to the complainants, the appointed administratrix acknowledged their claims against the estate of the deceased as major liabilities thereof in an Inventory[3] dated January 18, 2001. The complainants further alleged, thus: 5. Shortly prior to September 2001, Complainants uncovered serious lapses in the observance and enforcement by Respondent Judge of the mandatory prescriptions of the Rules governing the administration of the estate and in collation and preservation of its assets. 6. Among others, Petitioners discovered that while the Respondent Administratrix had been issued Letters of Administration as early as August 2, 2000 and had been granted by the Respondent Court, in an Order dated April 24, 2001, [a] final extended period until May 31, 2001 for the submission of a completed and updated inventory and appraisal report, what had been submitted was still

an unverified, incomplete and unappraised inventory dated January 18, 2001. Worse, in submitting the practically worthless inventory, Respondent Administratrix declined to vouch for the accuracy of the same, 7. Likewise, it was discovered by Complainants that despite the lapse of over a year since the issuance of her letters of administration, the Administratrix had failed to render an annual account of her administration as mandatorily required by Section 8 of Rule 85.[4] The complainants further alleged that the respondent Judge had, likewise, approved the sale of substantial and valuable assets of the estate without serving notice to them and other persons interested, in violation of Section 7, Rule 89 of the Rules of Court. Despite this, the respondent Judge failed to issue any order directing the administratrix to comply with the rules. The records of the intestate estate proceedings furthermore revealed a deliberate design to prejudice and preclude the opportune participation of the complainants. Thus: 9.1 Under Section 2 of Rule 79, the application for letters of administration is required to state, among others, the names, ages and residences of the heirs, and the names and residences of the creditors, of the decedent so far as known to the petitioner. However, although the Petition for Letters of Administration filed by the Administratrix acknowledged the existence of liabilities, and the List of Liabilities submitted with her inventory named the Complainants together with the Bureau of Internal Revenue as the major creditors of the estate, Administratrix did not name and list Complainants as creditors of the decedent in her Petition. In fact, no creditor was named at all. 9.2 Pursuant to Section 5 of the same Rule 79, letters of administration may be validly issued only after it is first shown that notice has been given as required by Section 3 of the same rule, that is to say, notice to the known heirs and creditors of the decedent and to any other persons believed to have an interest in the estate, given not only via publication but also by mail addressed *to them+ at their places of residence, and deposited at least twenty (20) days before the hearing or by personal service at least ten (10) days before the days of hearing Admittedly, no notice of whatever kind was served on Complainants. 9.3 Significantly, the Purchase and Sale Agreement disposing of the assets of Traders Royal Bank, which the Respondent Judge approved without notice to Complainants, explicitly, categorically and discriminatorily excluded, from the liabilities to be assumed by the Bank of Commerce as Purchaser, Petitioners claims in the pending Bacolod suits againstTRB and the estate, claims which had previously been acknowledged in the [Administratrixs] Inventory as major liabilities of the estate.[5] In light of these discoveries, the complainants, through counsel, filed a Manifestation/Motion Ex Abudanti Cautela[6] dated September 24, 2001 identifying themselves as among the major creditors in the inventory prepared by the appointed administratrix, and prayed that the Branch Clerk of Court be required to furnish the petitioners, through their counsel, copies of all the processes and orders issued by the court, and to require the administratrix to serve copies of all the proceedings to their counsel. Pending the resolution of this motion, the complainants also filed urgent pleadings bringing to the attention of the respondent Judge her procedural lapses.[7] However, the respondent Judge issued an Order[8] dated January 2, 2002 refusing to recognize the complainants as interested parties entitled to participate and intervene in the

proceedings. This compelled the complainants to file a motion for reconsideration of the said order, which was, likewise, denied by the respondent Judge. According to the complainants, the respondent Judge failed to consider the fact that no less than the appointed administratrix recognized their claims as major liabilities of the estate. They further claimed that the respondent Judges action only shows that there was a deliberate design to preclude their participation in the intestate proceedings. The complainants further alleged that a probate judge, such as the respondent, should know the elementary doctrines regarding the settlement of estates, failing which he may be held guilty of ignorance of the law. The complainants averred that it is a well settled judicial policy to favor the liberal participation of all parties having an interest, however minimal, in the proper settlement of the estate of the deceased. Hence, the respondent Judges failure to apply and observe the elementary doctrines bearing on the settlement of estate which are presumed to be known to a probate court reflects inexcusable ignorance of the law. Aside from praying that the appropriate disciplinary sanction to be meted on the respondent Judge, the complainants also prayed that the respondent Judge be disqualified from further trying Sp. Proc. No. 00-97505. They, likewise, prayed that the said proceedings be forwarded to the Executive Judge of the RTC of Manila for re-raffle to another sala. For her part, the respondent Judge explained that prior to her Order dated January 2, 2002, the complainants, through counsel, filed a motion with a prayer that an order be issued requiring the Branch Clerk of Court to furnish them (complainants) with copies of all processes and orders, and to require the administratrix to serve them copies of all pleadings in the proceedings. In her Order dated January 2, 2002, the respondent Judge declared that under the Rules, the complainants were without personality to participate in the intestate proceedings, thus, cannot intervene therein, much less be furnished with copies of orders, pleadings and processes relative thereto. The complainants filed a motion for reconsideration, which she denied on March 12, 2002. The respondent Judge pointed out that her ruling was elevated to the Court of Appeals (CA) via a petition for certiorari. On the complainants contention that she failed in her responsibility towards the appointed administratrix of the estate, the respondent Judge explained that the latter had already filed an initial inventory less than a year after the issuance of the letters of administration and that the administratrix was still in the process of preparing the supplemental inventory. Nonetheless, the respondent Judge issued an Order dated October 16, 2003 directing the administratrix to submit an updated inventory within thirty (30) days from receipt of the said Order. The administratrix filed a motion for extension as she had been continuously working on the preparation of the inventory of the estate and the delay was due to the difficulties of verifying the decedents stock investments. The motion for extension filed by the administratrix was granted by the court on November 26, 2003. The respondent Judge contended that the complaint was baseless, malicious and was intended to harass her, and was filed in retaliation for her unfavorable rulings against the complainants. She further contended that she resolved the motions filed by the complainants according to her own judgment and understanding of the law and the attendant circumstances. The respondent Judge, therefore, prayed for the dismissal of the case for lack of merit.

The complainants filed a Supplemental Complaint on February 6, 2004 contending that the respondent Judge had not yet required the administratrix of the estate to submit an inventory and annual account despite the lapse of time under the rules. They also claimed that they were again denied participation in the proceedings of the settlement of the estate, and access to the court records which are considered public. They prayed for the inhibition of the respondent Judge in trying Sp. Proc. No. 00-97505. In the comment of the respondent Judge to the supplemental complaint, she maintained that the complainants were not considered parties-in-interest since their claims remain contingent on the outcome of the cases still pending in the RTC of Bacolod City. The respondent Judge also pointed out that the appeal of the complainants to her court order, declaring the latter as not parties-in-interest in the settlement of the estate of the decedent, was still pending consideration by the appellate court. Thus: a) The law does not give blanket authority to any person to have access to official records and to documents and papers pertaining to official acts. As worded, only matters of public concern may a person [be] accorded access. In the present case, complainants interest is more of personal than of public concern. The ruling of the Supreme Court in the case of Valentin L. Legaspi v. Civil Service Commission (G.R. No. 72119, May 29, 1987) is the case in point. But the constitutional guarantee to information on matters of public concern is not absolute. It does not open every door to any and all information. Under the Constitution, access to official records, papers, etc., are subject to limitations as may be provided by law (Art. III, Sec. 7, second sentence). xxx in every case, the availability of access to a particular public record must be circumscribed by the nature of the information sought, i.e., (a) being of public concern or one that involves public interest, and (b) not being exempted by law from the operation of the constitutional guarantee. The threshold question is, therefore, whether or not the information sought is of public interest or public concern. b) Although complainants assert that they have the right to information based on the cases cited in the Supplemental Complaint, it is further clarified by this respondent that the position taken by them is utterly different because the parties involved in the cited cases are complainants themselves while in the case at hand, they are not considered parties-in-interest, their claim being contingent as their case is still pending with the RTC, Branch 44, Bacolod; [9] The complainants filed a Second Supplemental Complaint on April 30, 2004, reiterating the charges against the respondent Judge. They also filed a motion to withdraw their previous prayer for inhibition. In a Resolution dated August 11, 2004, the Court resolved to refer the matter to Court of Appeals Associate Justice Remedios A. Salazar-Fernando for investigation, report and recommendation. In her Final Report and Recommendation dated November 8, 2004, the Investigating Justice found that based on the records, the respondent Judge was not remiss in her duties relative to Sp. Proc. No. 00-97505, thus: On August 2, 2000, respondent Judge appointed Julita Campos Benedicto as administratrix of the estate of the deceased Roberto S. Benedicto [Records, Vol. I, p. 13]. Upon filing of the bond in the amount of

five million (P5,000,000) pesos, [letters] of administration [were] issued in favor of the administratrix and [a] notice dated August 23, 2000 to file money claims against the decedent was ordered published. Under Section 1, Rule 83 of the Revised Rules of Court, the administratrix should return/file with the court a true inventory and appraisal of all the real and personal estate of the deceased which came to her possession or knowledge. On December 12, 2000, the administratrix filed a motion for extension of time to file an Inventory on the ground that she was in the process of gathering documents and data necessary for the preparation of an inventory which were made difficult because of the very personalized way the deceased had been recording his assets and conducting his business affairs. On December 13, 2000, the motion for extension of item was granted. On January 12, 2001, the administratrix filed another extension of fifteen (15) days from January 15, 2001 within which to file an inventory which could not be finalized due to lack of necessary data such as the probable value of some specific assets. The motion was granted by respondent Judge. The Inventory was submitted on January 19, 2001, which placed the estates value at P36,799,822.25. Accordingly, respondent Judge ordered the payment of additional filing fee based on the declared value of the estate [Ibid, p. 58]. After finding that the initial inventory had no appraisal on March 26, 2001, respondent Judge directed the administratrix to submit the completed and updated inventory and appraisal report. Additional bond was also ordered to be posted [Ibid, p. 60]. The administratrix asked for an extension of time or until May 31, 2001 to file an updated inventory [Ibid, p. 63]. The same was granted on April 24, 2001 [Ibid, p. 67]. On the preceding facts alone, it could be gleaned that respondent Judge dutifully fulfilled her responsibility in exacting from the administratrix the observance of her responsibilities. Please note that those were not the only actions taken by the respondent Judge. Records of the case show that respondent Judge issued several Orders resolving other motions. Complainants fault respondent Judge for failing to order the administratrix to file a completed and updated inventory even as late as the date of this Complaint. In the *administratrixs+ motion for extension of time, she stated that the Inventory was complete except for the valuation of some shares of stock and to obtain the same, full auditing of the entire corporation complete with the actual field verification of recorded cases was needed. The same appears to be meritorious considering the vast estate of the deceased. When the administratrix did not submit the updated inventory after the deadline on May 31, 2001, respondent Judge on October 16, 2003, directed the administratrix to file the updated inventory. For which reason, administratrix filed another two (2) motions for extension of time to file the same. The delay in the submission of the inventory was aptly explained by the motions for extension of time filed by the administratrix.

The above ruling went on to expound that the administrators unexplained delay in filing the inventory may be a ground for his removal. Hence, the judge may not be faulted for the *administratrixs+ delay. However, only the heirs or beneficiaries of the estate may move for the removal of the administratrix on the grounds provided for in Rule 82. Likewise, the failure to render an account is a ground for the removal of the administratrix by the proper parties. The mandatory character of the requirement of an account or accounting one (1) year from the time of receiving letters testamentary or of administration admits of exception, i.e., when the Court, otherwise, directs. In this case, the one-year mandatory period within which to render an accounting should be reckoned from December 16, 2003. Hence, accounting of the estate is not yet due.[10] However, the Investigating Justice opined that the respondent Judge arbitrarily denied the complainants access to the case records of Sp. Proc. No. 00-97505 by refusing requests for photocopying of the same, and made the following conclusion and recommendation: This Investigator concludes that respondent Judge is not guilty of inaction or failure to require observance of the Rules by the Administratrix. However, respondent Judges refusal to give the complainants access to the case records of SP-97505 is arbitrary. The right to information on matters of public concern is a constitutional right. Access to official records and to documents and papers pertaining to official acts, transactions, or decisions shall be afforded the citizen, subject to such limitations as may be provided by law. WHEREFORE, PREMISES CONSIDERED, it is hereby recommended that respondent Judge be adjudged guilty of dereliction of duty and improper conduct bordering on oppression and accordingly be CENSURED, REPRIMANDED and WARNED that a repetition of the same in the future will be dealt with more severely.[11] The findings and recommendation of Justice Salazar-Fernando are well taken. The Court holds that the respondent Judge erred in denying the complainants access to the court records of Sp. Proc. No. 00-97505. Admittedly, the complainants could not demand that they be furnished with the courts orders and the pleadings filed by the parties, in as much as the respondent Judge had already ruled that they were not parties-in-interest. However, the Court finds that the respondent Judge should not have prohibited the complainants from going over the records of the case and securing copies of pertinent orders and pleadings.[12] Courts in the United States have recognized the general right to inspect and copy public records and documents, including judicial records and documents.[13] In our jurisdiction, the right is enshrined in Section 7, Article III of the Constitution, which provides: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions or decisions, as

well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The reliance of the respondent Judge on the ruling of the Court in Legaspi v. Civil Service Commission,[14] to justify the denial of access to court records is misplaced. On the contrary, the following pronouncement in the said case further bolsters the claim of the complainants: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. Public concern, like public interest, is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.[15] The presumption that the public has a right to see and copy judicial records attaches to those documents which properly come before the court in the course of an adjudicatory proceeding and which are relevant to the adjudication.[16] Hence, relevant documents which are submitted to, and accepted by, a court of competent jurisdiction in the course of adjudicatory proceedings, become documents to which the presumption of public access applies.[17] The policy reasons for granting public access to criminal proceedings include the publics right to monitor the functioning of our courts, thereby ensuring quality, honesty and respect for our legal system. Such policy reasons apply to the grant of public access to civil cases as well.[18] The importance of access to public records, court records more particularly, was explained in Lantaco, Sr. v. Llamas,[19] where the respondent Judge therein refused to furnish the complainants a copy of his decision. According to the Court, the importance of this right to access to court records is predicated on the right of the people to acquire information on matters of public concern in which the public has a legitimate interest. It was further explained that while the public officers in custody of control of public records have the discretion to regulate the manner in which such records may be inspected, examined or copied by interested persons, such discretion does not carry with it the authority to prohibit such access, inspection, examination or copying. To drive home the point, the Court cited its pronouncement inBaldoza v. Dimaano,[20] to wit: The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful democratic decision-making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times. As has been aptly observed: Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases. However, restrictions on access to certain records may be imposed by law. Thus, access restrictions imposed to control civil insurrection have been permitted upon a showing of immediate and impending danger that renders ordinary means of control inadequate to maintain order.[21] We agree with the following ratiocination of the Investigating Justice: However, the constitutional guarantee to information on matters of public concern is not absolute. Under the Constitution, access to official records, papers, etc., are subject to limitations as

may be provided by law. Therefore, a law may exempt certain types of information from public scrutiny such as matters on national security. Otherwise stated, the availability of access to a particular public record must be restricted by the nature of the information sought, i.e., (a) of public concern or one that involves public interest, and (b) not being exempted by law from the operation of the constitutional guarantee. The privilege against disclosure is recognized with respect to state secrets bearing on military, diplomatic and similar matters. This privilege is based upon public interest of such paramount importance which transcends the individual interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot enforce his legal rights. SP No. 97505 does not contain any military or diplomatic secret which will be disclosed by its production. Neither is there any law or regulation which considers the case records as classified information. The right to information is subject to reasonable regulations and restrictions. However, while public officers in custody or control of public records have the discretion to regulate the manner in which such records may be inspected, examined or copied by interested persons, such discretion does not carry with it the authority to prohibit such access, inspection, examination or copying.[22] The Court thus rules that for denying the complainants access to court records, the respondent Judge must be reprimanded. The respondent Judge cannot be similarly chastised for ruling that the complainants were not parties-in-interest in the subject case. It is settled that as a matter of policy, the acts of a judge in his judicial capacity are not subject to disciplinary action. He cannot be subjected to liability civil, criminal or administrative for any of his official acts, no matter how erroneous, as long as he acts in good faith.[23] Only judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate intent to do an injustice will be administratively sanctioned. [24] To hold, otherwise, would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment.[25] Indeed, an administrative complaint against a judge cannot be pursued simultaneously with the judicial remedies accorded to parties aggrieved by his erroneous order or judgment. Administrative remedies are neither alternative nor cumulative to judicial review where such review is available to the aggrieved parties and the same has not yet been resolved with finality. For until there is a final declaration by the appellate court that the challenged order or judgment is manifestly erroneous, there will be no basis to conclude whether respondent judge is administratively liable.[26] Thus, the remedy of the aggrieved party is not to file an administrative complaint against the judge, but to elevate the assailed decision or order to the higher court for review and correction,[27] which in this case the complainants have already done. The Court notes that in a Decision dated February 27, 2004, the CA dismissed the petition questioning the ruling of the respondent Judge that the complainants were not parties-in-interest in Sp. Proc. 00-97505, and that the complainants elevated such dismissal to this Court via a petition for review. It must be stressed that an administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or

dishonesty.[28] The Court has to be shown acts or conduct of the judge clearly indicative of arbitrariness or prejudice before the latter can be branded the stigma of being biased and partial. Good faith and absence of malice, corrupt motives or improper considerations, are sufficient defenses in which a judge charged with ignorance of the law can find refuge. [29] In this case, no bad faith can be attributed to the respondent Judge for relying on the ruling of this Court in Lantaco v. Llamas,[30] albeit erroneously. WHEREFORE, for denying the complainants access to court records, respondent Judge Amor A. Reyes is hereby REPRIMANDED. She is sternly warned that a repetition of the same or similar act in the future shall be dealt with more severely. SO ORDERED. Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.