Constitional CASES All

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-18463 October 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS,plaintiff-appellee,vs.GREGORIO PERFECTO,defendant-appellant.

Alfonso E. Mendoza and the appellant in behalf of the latter.Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The important question is here squarely presented of whether article 256 of the Spanish PenalCode, punishing "Any person who, by . . . writing, shall defame, abuse, or insult any Minister of theCrown or other person in authority . . .," is still in force.

About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero,discovered that certain documents which constituted the records of testimony given by witnesses inthe investigation of oil companies, had disappeared from his office. Shortly thereafter, the PhilippineSenate, having been called into special session by the Governor-General, the Secretary for theSenate informed that body of the loss of the documents and of the steps taken by him to discoverthe guilty party. The day following the convening of the Senate, September 7, 1920, thenewspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article reading as follows:

Half a month has elapsed since the discovery, for the first time, of the scandalousrobbery of records which were kept and preserved in the iron safe of the Senate, yet up tothis time there is not the slightest indication that the author or authors of the crime will everbe discovered.

To find them, it would not, perhaps, be necessary to go out of the Sente itself, and thepersons in charge of the investigation of the case would not have to display great skill inorder to succeed in their undertaking, unless they should encounter the insuperable obstacleof offical concealment.

In that case, every investigation to be made would be but a mere comedy and nothing

more.

After all, the perpetration of the robbery, especially under the circumstances that havesurrounded it, does not surprise us at all.

The execution of the crime was but the natural effect of the environment of the place inwhich it was committed.


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How many of the present Senators can say without remorse in their conscience andwith serenity of mind, that they do not owe their victory to electoral robbery? How may?

The author or authors of the robbery of the records from the said iron safe of theSenate have, perhaps, but followed the example of certain Senators who secured theirelection through fraud and robbery.

The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizingits committee on elections and privileges to report as to the action which should be taken withreference to the article published in La Nacion. On September 15, 1920, the Senate adopted aresolution authorizing the President of the Senate to indorse to the Attorney-General, for his studyand corresponding action, all the papers referring to the case of the newspaper La Nacion and itseditor, Mr. Gregorio Perfecto. As a result, an information was filed in the municipal court of the Cityof Manila by an assistant city fiscal, in which the editorial in question was set out and in which it wasalleged that the same constituted a violation of article 256 of the Penal Code. The defendantGregorio Perfecto was found guilty in the municipal court and again in the Court of First Instance ofManila.

During the course of the trial in the Court of First Instance, after the prosecution had rested,the defense moved for the dismissal of the case. On the subject of whether or not article 256 of thePenal Code, under which the information was presented, is in force, the trial judge, the HonorableGeorge R. Harvey, said:

This antiquated provision was doubtless incorporated into the Penal Code of Spain forthe protection of the Ministers of the Crown and other representatives of the King againstfree speech and action by Spanish subjects. A severe punishment was prescribed because itwas doubtless considered a much more serious offense to insult the King's representativethan to insult an ordinary individual. This provision, with almost all the other articles of thatCode, was extended to the Philippine Islands when under the dominion of Spain because theKing's subject in the Philippines might defame, abuse or insult the Ministers of the Crown orother representatives of His Majesty. We now have no Ministers of the Crown or other

persons in authority in the Philippines representing the King of Spain, and said provision,with other articles of the Penal Code, had apparently passed into "innocuous desuetude," butthe Supreme Corut of the Philippine Islands has, by a majority decision, held that said article256 is the law of the land to-day. . . .

The Helbig case is a precedent which, by the rule of stare decisis, is binding upon thiscourt until otherwise determined by proper authority.

In the decision rendered by the same judge, he concluded with the following language:

In the United States such publications are usually not punishable as criminal offense,and little importance is attached to them, because they are generally the result of political

controversy and are usually regarded as more or less colored or exaggerated. Attacks of thischaracter upon a legislative body are not punishable, under the Libel Law. Although suchpublications are reprehensible, yet this court feels some aversion to the application of theprovision of law under which this case was filed. Our Penal Code has come to us from theSpanish regime. Article 256 of that Code prescribes punishment for persons who useinsulting language about Ministers of the Crown or other "authority." The King of Spaindoubtless left the need of such protection to his ministers and others in authority in thePhilippines as well as in Spain. Hence, the article referred to was made applicable here.Notwithstanding the change of sovereignty, our Supreme Court, in a majority decision, has


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held that this provision is still in force, and that one who made an insulting remark about thePresident of the United States was punishable under it. (U.S. vs.Helbig, supra.) If itapplicable in that case, it would appear to be applicable in this case. Hence, said article 256must be enforced, without fear or favor, until it shall be repealed or superseded by otherlegislation, or until the Supreme Court shall otherwise determine.

In view of the foregoing considerations, the court finds the defendant guilty as chargedin the information and under article 256 of their Penal Code sentences him to suffer twomonths and one day ofarresto mayorand the accessory penalties prescribed by law, and topay the costs of both instances.

The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief,and eloquent oral argument made in his own behalf and by his learned counsel, all reducethemselves to the pertinent and decisive question which was announced in the beginning of thisdecision.

It will be noted in the first place that the trial judge considered himself bound to follow the ruleannounced in the case of United States vs.Helbig (R. G. No. 14705,1 not published). In that case,

the accused was charged with having said, "To hell with the President and his proclamations, orwords to that effect," in violation of article 256 of the Penal Code. He was found guilty in a judgmentrendered by the Court of First Instance of Manila and again on appeal to the Supreme Court, withthe writer of the instant decision dissenting on two principal grounds: (1) That the accused wasdeprived of the constitutional right of cross-examination, and (2) that article 256 of the Spanish PenalCode is no longer in force. Subsequently, on a motion of reconsideration, the court, being of theopinion that the Court of First Instance had committed a prejudicial error in depriving the accused ofhis right to cross-examine a principal witness, set aside the judgment affirming the judgmentappealed from and ordered the return of the record to the court of origin for the celebration of a newtrial. Whether such a trial was actually had, is not known, but at least, the record in the Helbig casehas never again been elevated to this court.

There may perchance exist some doubt as to the authority of the decision in the Helbig case,

in view of the circumstances above described. This much, however, is certain: The facts of theHelbig case and the case before us, which we may term the Perfecto case, are different, for in thefirst case there was an oral defamation, while in the second there is a written defamation. Not onlythis, but a new point which, under the facts, could not have been considered in the Helbig case, is, inthe Perfecto case, urged upon the court. And, finally, as is apparent to all, the appellate court is notrestrained, as was the trial court, by strict adherence to a former decision. We much prefer to resolvethe question before us unhindered by references to the Helbig decision.

This is one of those cases on which a variety of opinions all leading to the same result can behad. A majority of the court are of the opinion that the Philippine Libel Law, Act No. 277, has had theeffect of repealing so much of article 256 of the Penal Code as relates to written defamation, abuse,or insult, and that under the information and the facts, the defendant is neither guilty of a violation of

article 256 of the Penal Code, nor of the Libel Law. The view of the Chief Justice is that the accusedshould be acquitted for the reason that the facts alleged in the information do not constitute aviolation of article 156 of the Penal Code. Three members of the court believe that article 256 wasabrogated completely by the change from Spanish to American sovereignty over the Philippines andis inconsistent with democratic principles of government.

Without prejudice to the right of any member of the court to explain his position, we willdiscuss the two main points just mentioned.


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1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish PenalCode. The Libel Law, Act No. 277, was enacted by the Philippine Commission shortlyafter organization of this legislative body. Section 1 defines libel as a "malicious defamation,expressed either in writing, printing, or by signs or pictures, or the like, or public theatricalexhibitions, tending to blacken the memory of one who is dead or to impeach the honesty,virtue, or reputation, or publish the alleged or natural deffects of one who is alive, and

thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All lawsand parts of laws now in force, so far as the same may be in conflict herewith, are herebyrepealed. . . ."

That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith,and that the Libel Law abrogated certain portion of the Spanish Penal Code, cannot be gainsaid.Title X of Book II of the Penal Code, covering the subjects of calumny and insults, must have beenparticularly affected by the Libel Law. Indeed, in the early case of Pardo de Tavera vs.GarciaValdez ([1902], 1. Phil., 468), the Supreme Court spoke of the Libel Law as " reforming thepreexisting Spanish law on the subject of calumnia and injuria." Recently, specific attention wasgiven to the effect of the Libel Law on the provisions of the Penal Code, dealing with calumny andinsults, and it was found that those provisions of the Penal Code on the subject of calumny andinsults in which the elements of writing an publicity entered, were abrogated by the Libel Law.(People vs.Castro [1922], p. 842, ante.)

The Libel Law must have had the same result on other provisions of the Penal Code, as forinstance article 256.

The facts here are that the editor of a newspaper published an article, naturally in writing,which may have had the tendency to impeach the honesty, virtue, or reputation of members of thePhilippine Senate, thereby possibly exposing them to public hatred, contempt, or ridicule, which isexactly libel, as defined by the Libel Law. Sir J. F. Stephen is authority for the statement that a libelis indictable when defaming a "body of persons definite and small enough for individual members tobe recognized as such, in or by means of anything capable of being a libel." (Digest of Criminal Law,art. 267.) But in the United States, while it may be proper to prosecute criminally the author of a libel

charging a legislator with corruption, criticisms, no matter how severe, on a legislature, are within therange of the liberty of the press, unless the intention and effect be seditious. (3 Wharton's CriminalLaw, p. 2131.) With these facts and legal principles in mind, recall that article 256 begins: Anyperson who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other personin authority," etc.

The Libel Law is a complete and comprehensive law on the subject of libel. The well-knownrule of statutory construction is, that where the later statute clearly covers the old subject-matter ofantecedent acts, and it plainly appears to have been the purpose of the legislature to giveexpression in it to the whole law on the subject, previous laws are held to be repealed by necessaryimplication. (1 Lewis' Sutherland Statutory Construction, p. 465.) For identical reasons, it is evidentthat Act No. 277 had the effect so much of this article as punishes defamation, abuse, or insults bywriting.

Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also haveaffected article 256, but as to this point, it is not necessary to make a pronouncement.

2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine sonarticle 256 of the Spanish Penal Code. Appellant's main proposition in the lower court andagain energetically pressed in the appellate court was that article 256 of the Spanish PenalCode is not now in force because abrogated by the change from Spanish to American


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sovereignty over the Philippines and because inconsistent with democratic principles ofgovernment. This view was indirectly favored by the trial judge, and, as before stated, is theopinion of three members of this court.

Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of BookII punishes the crimes of treason, crimes that endanger the peace or independence of the state,

crimes against international law, and the crime of piracy. Title II of the same book punishes thecrimes of lese majeste, crimes against theCortesand its members and against the council ofministers, crimes against the form of government, and crimes committed on the occasion of theexercise of rights guaranteed by the fundamental laws of the state, including crime against religionand worship. Title III of the same Book, in which article 256 is found, punishes the crimes ofrebellion, sedition, assaults upon persons in authority, and their agents, and contempts,insults, injurias, and threats against persons in authority, and insults, injurias, and threats againsttheir agents and other public officers, the last being the title to Chapter V. The first two articles inChapter V define and punish the offense of contempt committed by any one who shall be word ordeed defame, abuse, insult, or threathen a minister of the crown, or any person in authority. The withan article condemning challenges to fight duels intervening, comes article 256, now being weighed inthe balance. It reads as follows: "Any person who, by word, deed, or writing, shall defame, abuse, orinsult any Minister of the Crown or other person in authority, while engaged in the performance ofofficial duties, or by reason of such performance, provided that the offensive minister or person, orthe offensive writing be not addressed to him, shall suffer the penalty of arresto mayor," that is,the defamation, abuse, or insult of any Minister of the Crown of the Monarchy of Spain (for therecould not be a Minister of the Crown in the United States of America), or other person in authority inthe Monarchy of Spain.

It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do withsuch subjects as treason, lese majeste, religion and worship, rebellion, sedition, and contempts ofministers of the crown, are not longer in force. Our present task, therefore, is a determination ofwhether article 256 has met the same fate, or, more specifically stated, whether it is in the nature ofa municipal law or political law, and is consistent with the Constitution and laws of the United Statesand the characteristics and institutions of the American Government.

It is a general principle of the public law that on acquisition of territory the previous politicalrelations of the ceded region are totally abrogated. "Political" is here used to denominate the lawsregulating the relations sustained by the inhabitants to the sovereign. (American InsuranceCo. vs.Canter [1828], 1 Pet., 511; Chicago, Rock Island and Pacific Railway Co. vs.McGlinn [1885],114 U.S., 542; Roa vs.Collector of Customs [1912], 23 Phil., 315.) Mr. Justice Field of the UnitedStates Supreme Court stated the obvious when in the course of his opinion in the case of Chicago,Rock Island and Pacific Railway Co. vs.McGlinn, supra, he said: "As a matter of course, all laws,ordinances and regulations in conflict with the political character, institutions and Constitution of thenew government are at once displaced. Thus, upon a cession of political jurisdiction and legislativepower and the latter is involved in the former to the United States, the laws of the country insupport of an established religion or abridging the freedom of the press, or authorizing cruel andunusual punishments, and he like, would at once cease to be of obligatory force without anydeclaration to that effect." To quote again from the United States Supreme Court: " It cannot beadmitted that the King of Spain could, by treaty or otherwise, impart to the United States any of hisroyal prerogatives; and much less can it be admitted that they have capacity to receive or power toexercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to theConstitution and laws of its own government, and not according to those of the government cedingit." (Pollard vs.Hagan [1845], 3 Hos., 210.)

On American occupation of the Philippines, by instructions of the President to the MilitaryCommander dated May 28, 1898, and by proclamation of the latter, the municipal laws of the


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conquered territory affecting private rights of person and property and providing for the punishmentof crime were nominally continued in force in so far as they were compatible with the new order ofthings. But President McKinley, in his instructions to General Merritt, was careful to say: "The firsteffect of the military occupation of the enemy's territory is the severance of the former politicalrelation of the inhabitants and the establishment of a new political power." From that day to this, theordinarily it has been taken for granted that the provisions under consideration were still effective. To

paraphrase the language of the United States Supreme Court in Weems vs.United States ([1910],217 U. S., 349), there was not and could not be, except as precise questions were presented, acareful consideration of the codal provisions and a determination of the extent to which theyaccorded with or were repugnant to the "'great principles of liberty and law' which had been 'madethe basis of our governmental system.' " But when the question has been squarely raised, theappellate court has been forced on occasion to hold certain portions of the Spanish codes repugnantt democratic institutions and American constitutional principles. (U.S. vs.Sweet [1901], 1 Phil., 18;U.S. vs.Balcorta [1913], 25 Phil., 273; U.S. vs.Balcorta [1913], 25 Phil., 533;Weems vs.U.S., supra.)

The nature of the government which has been set up in the Philippines under Americansovereignty was outlined by President McKinley in that Magna Charta of Philippine liberty, hisinstructions to the Commission, of April 7, 1900. In part, the President said:

In all the forms of government and administrative provisions which they are authorizedto prescribe, the Commission should bear in mind that he government which they areestablishing is designed not for our satisfaction or for the expression of our theoretical views,but for the happiness, peace, and prosperity of the people of the Philippine Islands, and themeasures adopted should be made to conform to their customs, their habits, and even theirprejudices, to the fullest extent consistent with the accomplishment of the indispensablerequisites of just and effective government. At the same time the Commission should bear inmind, and the people of the Islands should be made plainly to understand, that there arecertain great principles of government which have been made the basis of our governmentalsystem, which we deem essential to the rule of law and the maintenance of individualfreedom, and of which they have, unfortunately, been denied the experience possessed by

us; that there are also certain practical rules of government which we have found to beessential to the preservation of these great principles of liberty and law, and that these

principles and these rules of government must be established and maintained in their islandsfor the sake of their liberty and happiness, however much they may conflict with the customsor laws of procedure with which they are familiar. It is evident that the most enligthenedthought of the Philippine Islands fully appreciates the importance of these principles andrules, and they will inevitably within a short time command universal assent.

The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our SupremeCourt, in the case of United States vs.Bull ([1910], 15 Phil., 7), said: "The President and Congressframed the government on the model with which American are familiar, and which has proven bestadapted for the advancement of the public interests and the protection of individual rights andprivileges."

Therefore, it has come with somewhat of a shock to hear the statement made that thehappiness, peace, and prosperity of the people of the Philippine Islands and their customs, habits,and prejudices, to follow the language of President McKinley, demand obeisance to authority, androyal protection for that authority.

According to our view, article 256 of the Spanish Penal Code was enacted by the Governmentof Spain to protect Spanish officials who were the representatives of the King. With the change of


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sovereignty, a new government, and a new theory of government, as set up in the Philippines. It wasin no sense a continuation of the old, although merely for convenience certain of the existinginstitutions and laws were continued. The demands which the new government made, and makes,on the individual citizen are likewise different. No longer is there a Minister of the Crown or a personin authority of such exalted position that the citizen must speak of him only with bated breath. "In theeye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal

rights with every other man. We have no rank or station, except that of respectability and intelligenceas opposed to indecency and ignorance, and the door to this rank stands open to every man tofreely enter and abide therein, if he is qualified, and whether he is qualified or not depends upon thelife and character and attainments and conduct of each person for himself. Every man may lawfullydo what he will, so long as it is notmalum in se or malum prohibitum or does not infringe upon thequally sacred rights of others." (State vs.Shepherd [1903], 177 Mo., 205; 99 A. S. R., 624.)

It is true that in England, from which so many of the laws and institutions of the United Statesare derived, there were once statutes of scandalum magnatum, under which words which would notbe actionable if spoken of an ordinary subject were made actionable if spoken of a peer of the realmor of any of the great officers of the Crown, without proof of any special damage. The Crown ofEngland, unfortunately, took a view less tolerant that that of other sovereigns, as for instance, theEmperors Augustus, Caesar, and Tiberius. These English statutes have, however, long since,become obsolete, while in the United States, the offense of scandalum magnatum is not known. Inthe early days of the American Republic, a sedition law was enacted, making it an offense to libel theGovernment, the Congress, or the President of the United States, but the law met with so muchpopular disapproval, that it was soon repealed. "In this country no distinction as to persons isrecognized, and in practice a person holding a high office is regarded as a target at whom anyperson may let fly his poisonous words. High official position, instead of affording immunity fromslanderous and libelous charges, seems rather to be regarded as making his character free plunderfor any one who desires to create a senation by attacking it." (Newell, Slander and Libel, 3d ed., p.245; Sillars vs.Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)

Article 256 of the Penal Code is contrary to the genius and fundamental principles of theAmerican character and system of government. The gulf which separates this article from the spirit

which inspires all penal legislation of American origin, is as wide as that which separates amonarchy from a democratic Republic like that of the United States. This article was crowded out byimplication as soon as the United States established its authority in the Philippine Islands. Penaltiesout of all proportion to the gravity of the offense, grounded in a distorted monarchical conception ofthe nature of political authority, as opposed to the American conception of the protection of theinterests of the public, have been obliterated by the present system of government in the Islands. 1awph!l.net

From an entirely different point of view, it must be noted that this article punishes contemptsagainst executive officials, although its terms are broad enough to cover the entire official class.Punishment for contempt of non-judicial officers has no place in a government based upon Americanprinciples. Our official class is not, as in monarchies, an agent of some authority greater than thepeople but it is an agent and servant of the people themselves. These officials are only entitled torespect and obedience when they are acting within the scope of their authority and jurisdiction. The

American system of government is calculated to enforce respect and obedience where such respectand obedience is due, but never does it place around the individual who happens to occupy anofficial position by mandate of the people any official halo, which calls for drastic punishment forcontemptuous remarks.

The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty ofParis. Ministers of the Crown have no place under the American flag.


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To summarize, the result is, that all the members of the court are of the opinion, although fordifferent reasons, that the judgment should be reversed and the defendant and appellant acquitted,with costs de officio. So ordered.

Ostrand and Johns, JJ., concur.

Separate Opinions

ARAULLO, C.J., concurring:

I concur with the dispositive part of the foregoing decision, that is, with the acquittal of theaccused, for the sole reason that the facts alleged in the information do not constitute a violation ofarticle 256 of the Penal Code; for although that article is in force with respect to calumny, injuria, orinsult, by deed or word, against an authority in the performance of his duties or by reason thereof,outside of his presence, it is repealed by the Libel Law in so far as it refers to calumny, injuria, orinsult committed against an authority by writing or printing, as was that inserted in the saidinformation.

ROMUALDEZ, J., concurring:

I concur with the result. I believe that the responsibility of the accused has not been showneither under article 256 of the Penal Code or under the Libel Law.

I am of the opinion that article 256 of the Penal Code is still in force, except as it refers to"Ministers of the Crown," whom we do not have in our Government, and to calumny, injuria, or insult,by writing or printing, committed against an authority in the performance of his duties or by reasonthereof, which portion was repealed by the Libel Law.

Johnson, Street, Avancea and Villamor, JJ., concur.

A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, Complainant, vs. HONORABLE ELIAS B. ASUNCION, Judge of theCourt of First Instance of Leyte, Respondent.

MAKASIAR,J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge EliasB. Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with"acts unbecoming a judge."

The factual setting of the case is stated in the report dated May 27, 1971 of then Associate JusticeCecilia Muoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, towhom this case was referred on October 28, 1968 for investigation, thus:


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Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed bySinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and PriscillaReyes, plaintiffs, against Bernardita R. Macariola, defendant, concerning the properties left by thedeceased Francisco Reyes, the common father of the plaintiff and defendant.chanroblesvirtuallaw library

In her defenses to the complaint for partition, Mrs. Macariola alleged among other things that; a)plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco Reyes; b) the only legal heirsof the deceased were defendant Macariola, she being the only offspring of the first marriage ofFrancisco Reyes with Felisa Espiras, and the remaining plaintiffs who were the children of thedeceased by his second marriage with Irene Ondez; c) the properties left by the deceased were all theconjugal properties of the latter and his first wife, Felisa Espiras, and no properties were acquired bythe deceased during his second marriage; d) if there was any partition to be made, those conjugalproperties should first be partitioned into two parts, and one part is to be adjudicated solely todefendant it being the share of the latter's deceased mother, Felisa Espiras, and the other half whichis the share of the deceased Francisco Reyes was to be divided equally among his children by his twomarriages.chanroblesvirtuallaw library

On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case 3010, thedispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of evidence, findsand so holds, and hereby renders judgment (1) Declaring the plaintiffs Luz R. Bakunawa, AnacoritaReyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes as the only children legitimated by thesubsequent marriage of Francisco Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R.Bales to have been an illegitimate child of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475,4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to the conjugal partnership of thespouses Francisco Reyes Diaz and Felisa Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416as belonging to the spouses Francisco Reyes Diaz and Irene Ondez in common partnership; (5)Declaring that 1/2 of Lot No. 1184 as belonging exclusively to the deceased Francisco Reyes Diaz; (6)Declaring the defendant Bernardita R. Macariola, being the only legal and forced heir of her motherFelisa Espiras, as the exclusive owner of one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803,4581, 4506; and the remaining one-half (1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265,4803, 4581, 4506 and one-half (1/2) of one-fourth (1/4) of Lot No. 1154 as belonging to the estate ofFrancisco Reyes Diaz; (7) Declaring Irene Ondez to be the exclusive owner of one-half (1/2) of Lot No.

2304 and one-half (1/2) of one-fourth (1/4) of Lot No. 3416; the remaining one-half (1/2) of Lot 2304and the remaining one-half (1/2) of one-fourth (1/4) of Lot No. 3416 as belonging to the estate ofFrancisco Reyes Diaz; (8) Directing the division or partition of the estate of Francisco Reyes Diaz insuch a manner as to give or grant to Irene Ondez, as surviving widow of Francisco Reyes Diaz, ahereditary share of. one-twelfth (1/12) of the whole estate of Francisco Reyes Diaz (Art. 996 inrelation to Art. 892, par 2, New Civil Code), and the remaining portion of the estate to be dividedamong the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, AdelaReyes, Priscilla Reyes and defendant Bernardita R. Macariola, in such a way that the extent of the totalshare of plaintiff Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of two-fifth(2/5) of the total share of any or each of the other plaintiffs and the defendant (Art. 983, New CivilCode), each of the latter to receive equal shares from the hereditary estate, (Ramirez vs. Bautista, 14Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirtydays after this judgment shall have become final to submit to this court, for approval a project ofpartition of the hereditary estate in the proportion above indicated, and in such manner as the parties

may, by agreement, deemed convenient and equitable to them taking into consideration the location,kind, quality, nature and value of the properties involved; (10) Directing the plaintiff Sinforosa R.Bales and defendant Bernardita R. Macariola to pay the costs of this suit, in the proportion of one-third(1/3) by the first named and two-thirds (2/3) by the second named; and (I 1) Dismissing all otherclaims of the parties [pp 27-29 of Exh. C].

The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a projectof partition was submitted to Judge Asuncion which is marked Exh. A. Notwithstanding the fact thatthe project of partition was not signed by the parties themselves but only by the respective counsel of


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plaintiffs and defendant, Judge Asuncion approved it in his Order dated October 23, 1963, which forconvenience is quoted hereunder in full:

The parties, through their respective counsels, presented to this Court for approval the followingproject of partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this Honorable Courtrespectfully submit the following Project of Partition:

l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernardita Reyes Macariola;

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern part of the lotshall be awarded likewise to Bernardita R. Macariola;

3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western part of the lotshall likewise be awarded to Sinforosa Reyes-Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa, Anacorita Reyes,Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions awarded underitem (2) and (4) above shall be awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes,Adela Reyes and Priscilla Reyes in equal shares, provided, however that the remaining portion of LotNo. 3416 shall belong exclusively to Priscilla Reyes.chanroblesvirtuallaw library

WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is made inaccordance with the decision of the Honorable Court be approved.chanroblesvirtuallaw library

Tacloban City, October 16, 1963. chanroblesvirtuallaw library

(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City

While the Court thought it more desirable for all the parties to have signed this Project of Partition,nevertheless, upon assurance of both counsels of the respective parties to this Court that the Projectof Partition, as above- quoted, had been made after a conference and agreement of the plaintiffs andthe defendant approving the above Project of Partition, and that both lawyers had represented to theCourt that they are given full authority to sign by themselves the Project of Partition, the Court,therefore, finding the above-quoted Project of Partition to be in accordance with law, hereby approvesthe same. The parties, therefore, are directed to execute such papers, documents or instrumentsufficient in form and substance for the vesting of the rights, interests and participations which wereadjudicated to the respective parties, as outlined in the Project of Partition and the delivery of the

respective properties adjudicated to each one in view of said Project of Partition, and to perform suchother acts as are legal and necessary to effectuate the said Project of Partition. chanroblesvirtuallaw library

SO ORDERED.chanroblesvirtuallaw library

Given in Tacloban City, this 23rd day of October, 1963.chanroblesvirtuallaw library

(SGD) ELIAS B. ASUNCION Judge


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EXH. B.

The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose ofgiving authority to the Register of Deeds of the Province of Leyte to issue the corresponding transfercertificates of title to the respective adjudicatees in conformity with the project of partition (see Exh.U).chanroblesvirtuallaw library

One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereofwith an area of 15,162.5 sq. meters. This lot, which according to the decision was the exclusiveproperty of the deceased Francisco Reyes, was adjudicated in said project of partition to the plaintiffsLuz, Anacorita Ruperto, Adela, and Priscilla all surnamed Reyes in equal shares, and when the projectof partition was approved by the trial court the adjudicatees caused Lot 1184 to be subdivided intofive lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).chanroblesvirtuallaw library

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court (Exhs. F,F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July 31, 1964to Dr. Arcadio Galapon (Exh. 2) who was issued transfer certificate of title No. 2338 of the Register ofDeeds of the city of Tacloban (Exh. 12). chanroblesvirtuallaw library

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of

around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), whichparticular portion was declared by the latter for taxation purposes (Exh. F). chanroblesvirtuallaw library

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares andinterest in Lot 1184-E to "The Traders Manufacturing and Fishing Industries Inc." (Exit 15 & 16). Atthe time of said sale the stockholders of the corporation were Dominador Arigpa Tan, HumiliaJalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion, withJudge Asuncion as the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles ofIncorporation of "The Traders Manufacturing and Fishing Industries, Inc." which we shall henceforthrefer to as "TRADERS" were registered with the Securities and Exchange Commission only on January9, 1967 (Exh. E) [pp. 378-385, rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6,

1968 alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491,paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which wasone of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violatedArticle 14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019,otherwise known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the CivilService Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself with the TradersManufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he was a judgeof the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an impostor andacted in disregard of judicial decorum by closely fraternizing with a certain Dominador Arigpa Tan whoopenly and publicly advertised himself as a practising attorney when in truth and in fact his name doesnot appear in the Rolls of Attorneys and is not a member of the Philippine Bar; and [4] that there wasa culpable defiance of the law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).chanroblesvirtuallaw library

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on

October 16, 1968 by herein complainant. In Our resolution of October 28, 1968, We referred this caseto then Justice Cecilia Muoz Palma of the Court of Appeals, for investigation, report andrecommendation. After hearing, the said Investigating Justice submitted her report dated May 27,1971 recommending that respondent Judge should be reprimanded or warned in connection with thefirst cause of action alleged in the complaint, and for the second cause of action, respondent should bewarned in case of a finding that he is prohibited under the law to engage in business. On the third andfourth causes of action, Justice Palma recommended that respondent Judge be exonerated.chanroblesvirtuallaw library

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainantherein instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R.


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Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil CaseNo. 4235, seeking the annulment of the project of partition made pursuant to the decision in CivilCase No. 3010 and the two orders issued by respondent Judge approving the same, as well as thepartition of the estate and the subsequent conveyances with damages. It appears, however, thatsome defendants were dropped from the civil case. For one, the case against Dr. Arcadio Galapon wasdismissed because he was no longer a real party in interest when Civil Case No. 4234 was filed,having already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on August

31, 1966 the remainder was sold to the Traders Manufacturing and Fishing Industries, Inc. Similarly,the case against defendant Victoria Asuncion was dismissed on the ground that she was no longer areal party in interest at the time the aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184acquired by her and respondent Judge from Dr. Arcadio Galapon was already sold on August 31, 1966to the Traders Manufacturing and Fishing industries, Inc. Likewise, the cases against defendantsSerafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and FishingIndustries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla,Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were dismissed with the conformity ofcomplainant herein, plaintiff therein, and her counsel. chanroblesvirtuallaw library

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who wasdirected and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and nowMinister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered adecision, the dispositive portion of which reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to takecognizance of the issue of the legality and validity of the Project of Partition [Exhibit "B"] and the twoOrders [Exhibits "C" and "C- 3"] approving the partition;

(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B. Asuncion,

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages;

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary damages;

(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND FOR THE HEIRSOF THE DECEASED GERARDO VILLASIN -

(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of the deceasedGerardo Villasin;

(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo Villasin thecost of the suit.chanroblesvirtuallaw library

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE PLAINTIFFS INCIVIL CASE NO. 3010 -

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R. Solis,Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.chanroblesvirtuallaw library


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D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO -

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit. chanroblesvirtuallaw library

SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appealsupon perfection of the appeal on February 22, 1971. chanroblesvirtuallaw library

I

WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her firstcause of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of theNew Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those propertiesinvolved in Civil Case No. 3010. 'That Article provides:

Article 1491. The following persons cannot acquire by purchase, even at a public or judicial action,

either in person or through the mediation of another:

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(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officersand employees connected with the administration of justice, the property and rights in litigation orlevied upon an execution before the court within whose jurisdiction or territory they exercise theirrespective functions; this prohibition includes the act of acquiring by assignment and shall apply tolawyers, with respect to the property and rights which may be the object of any litigation in whichthey may take part by virtue of their profession [emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which isthe subject of litigation to the persons disqualified therein. WE have already ruled that "... for the

prohibition to operate, the sale or assignment of the property must take place during the pendency ofthe litigation involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519[1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]). chanroblesvirtual law library

In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E,the decision in Civil Case No. 3010 which he rendered onJune 8, 1963 was already final because noneof the parties therein filed an appeal within the reglementary period; hence, the lot in question was nolonger subject of the litigation. Moreover, at the time of the sale on March 6, 1965, respondent's orderdated October 23, 1963 and the amended order dated November 11, 1963 approving the October 16,1963 project of partition made pursuant to the June 8, 1963 decision, had long become final for therewas no appeal from said orders.chanroblesvirtuallaw library

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the

plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased onJuly 31,1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R.Bakunawa after the finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 ormore specifically one-half thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, LuzBakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and the same wassubdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was soldon July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register of Deeds ofTacloban City, and on March 6, 1965 he sold a portion of said lot to respondent Judge and his wifewho declared the same for taxation purposes only. The subsequent sale onAugust 31, 1966 byspouses Asuncion and spouses Galapon of their respective shares and interest in said Lot 1184-E to


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the Traders Manufacturing and Fishing Industries, Inc., in which respondent was the president and hiswife was the secretary, took place long after the finality of the decision in Civil Case No. 3010 and ofthe subsequent two aforesaid orders therein approving the project of partition. chanroblesvirtuallaw library

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action beforethe Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project ofpartition and the two orders approving the same, as well as the partition of the estate and thesubsequent conveyances, the same, however, is of no moment.chanroblesvirtuallaw library

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr.Arcadio Galapon; hence, after the finality of the decision which he rendered onJune 8, 1963 in CivilCase No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963.Therefore, the property was no longer subject of litigation. chanroblesvirtuallaw library

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, changeor affect the aforesaid facts - that the questioned sale to respondent Judge, now Court of AppealsJustice, was effected and consummated long after the finality of the aforesaid decision or orders.chanroblesvirtuallaw library

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over oneyear after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the

project of partition, and not during the pendency of the litigation, there was no violation of paragraph5, Article 1491 of the New Civil Code.chanroblesvirtuallaw library

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. ArcadioGalapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal theillegal and unethical transfer of said lot to respondent Judge as a consideration for the approval of theproject of partition. In this connection, We agree with the findings of the Investigating Justice thus:

And so we are now confronted with this all-important question whether or not the acquisition byrespondent of a portion of Lot 1184-E and the subsequent transfer of the whole lot to "TRADERS" ofwhich respondent was the President and his wife the Secretary, was intimately related to the Order ofrespondent approving the project of partition, Exh. A.chanroblesvirtuallaw library

Respondent vehemently denies any interest or participation in the transactions between the Reyesesand the Galapons concerning Lot 1184-E, and he insists that there is no evidence whatsoever to showthat Dr. Galapon had acted, in the purchase of Lot 1184-E, in mediation for him and his wife. (See p.14 of Respondent's Memorandum).

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the record showing that Dr. ArcadioGalapon acted as a mere "dummy" of respondent in acquiring Lot 1184-E from the Reyeses. Dr.Galapon appeared to this investigator as a respectable citizen, credible and sincere, and I believe himwhen he testified that he bought Lot 1184-E in good faith and for valuable consideration from theReyeses without any intervention of, or previous understanding with Judge Asuncion (pp. 391- 394,rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the projectof partition although it was not signed by the parties, We quote with approval the findings of theInvestigating Justice, as follows:

1. I agree with complainant that respondent should have required the signature of the parties moreparticularly that of Mrs. Macariola on the project of partition submitted to him for approval; however,whatever error was committed by respondent in that respect was done in good faith as according toJudge Asuncion he was assured by Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola, Thathe was authorized by his client to submit said project of partition, (See Exh. B and tsn p. 24, January


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20, 1969). While it is true that such written authority if there was any, was not presented byrespondent in evidence, nor did Atty. Ramo appear to corroborate the statement of respondent, hisaffidavit being the only one that was presented as respondent's Exh. 10, certain actuations of Mrs.Macariola lead this investigator to believe that she knew the contents of the project of partition, Exh.A, and that she gave her conformity thereto. I refer to the following documents:

1) Exh. 9 - Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral Surveyin which the deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a). On tills certificate of title theOrder dated November 11, 1963, (Exh. U) approving the project of partition was duly entered andregistered on November 26, 1963 (Exh. 9-D);

2) Exh. 7 - Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariolaon October 22, 1963, conveying to Dr. Hector Decena the one-fourth share of the late FranciscoReyes-Diaz in Lot 1154. In this deed of sale the vendee stated that she was the absolute owner of saidone-fourth share, the same having been adjudicated to her as her share in the estate of her fatherFrancisco Reyes Diaz as per decision of the Court of First Instance of Leyte under case No. 3010 (Exh.7-A). The deed of sale was duly registered and annotated at the back of OCT 19520 on December 3,1963 (see Exh. 9-e).chanroblesvirtuallaw library

In connection with the abovementioned documents it is to be noted that in the project of partition

dated October 16, 1963, which was approved by respondent on October 23, 1963, followed by anamending Order on November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs.Macariola. It is this 1/4 share in Lot 1154 which complainant sold to Dr. Decena on October 22, 1963,several days after the preparation of the project of partition. chanroblesvirtuallaw library

Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot1154 by virtue of the decision in Civil Case 3010 and not because of the project of partition, Exh. A.Such contention is absurd because from the decision, Exh. C, it is clear that one-half of one- fourth ofLot 1154 belonged to the estate of Francisco Reyes Diaz while the other half of said one-fourth wasthe share of complainant's mother, Felisa Espiras; in other words, the decision did not adjudicate thewhole of the one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainantbecame the owner of the entire one-fourth of Lot 1154 only by means of the project of partition, Exh.A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no other reason than thatshe was wen aware of the distribution of the properties of her deceased father as per Exhs. A and B. Itis also significant at this point to state that Mrs. Macariola admitted during the cross-examination thatshe went to Tacloban City in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92, November28, 1968) from which we can deduce that she could not have been kept ignorant of the proceedings incivil case 3010 relative to the project of partition. chanroblesvirtuallaw library

Complainant also assails the project of partition because according to her the properties adjudicated toher were insignificant lots and the least valuable. Complainant, however, did not present any directand positive evidence to prove the alleged gross inequalities in the choice and distribution of the realproperties when she could have easily done so by presenting evidence on the area, location, kind, theassessed and market value of said properties. Without such evidence there is nothing in the record toshow that there were inequalities in the distribution of the properties of complainant's father (pp.386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the NewCivil Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was,however, improper for him to have acquired the same. He should be reminded of Canon 3 of theCanons of Judicial Ethics which requires that: "A judge's official conduct should be free from theappearance of impropriety, and his personal behavior, not only upon the bench and in theperformance of judicial duties, but also in his everyday life, should be beyond reproach." And as aptlyobserved by the Investigating Justice: "... it was unwise and indiscreet on the part of respondent tohave purchased or acquired a portion of a piece of property that was or had been in litigation in hiscourt and caused it to be transferred to a corporation of which he and his wife were ranking officers atthe time of such transfer. One who occupies an exalted position in the judiciary has the duty and


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responsibility of maintaining the faith and trust of the citizenry in the courts of justice, so that not onlymust he be truly honest and just, but his actuations must be such as not give cause for doubt andmistrust in the uprightness of his administration of justice. In this particular case of respondent, hecannot deny that the transactions over Lot 1184-E are damaging and render his actuations open tosuspicion and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in litigationin his court and that he was purchasing it from a third person and not from the parties to thelitigation, he should nonetheless have refrained from buying it for himself and transferring it to a

corporation in which he and his wife were financially involved, to avoid possible suspicion that hisacquisition was related in one way or another to his official actuations in civil case 3010. The conductof respondent gave cause for the litigants in civil case 3010, the lawyers practising in his court, andthe public in general to doubt the honesty and fairness of his actuations and the integrity of our courtsof justice" (pp. 395396, rec.). chanroblesvirtuallaw library

II

With respect to the second cause of action, the complainant alleged that respondent Judge violatedparagraphs 1 and 5, Article 14 of the Code of Commerce when he associated himself with the TradersManufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said corporationhaving been organized to engage in business. Said Article provides that:

Article 14 - The following cannot engage in commerce, either in person or by proxy, nor can they holdany office or have any direct, administrative, or financial intervention in commercial or industrialcompanies within the limits of the districts, provinces, or towns in which they discharge their duties:

1. Justices of the Supreme Court, judges and officials of the department of public prosecution in activeservice. This provision shall not be applicable to mayors, municipal judges, and municipal prosecutingattorneys nor to those who by chance are temporarily discharging the functions of judge orprosecuting attorney.

xxx xxx xxx

5. Those who by virtue of laws or special provisions may not engage in commerce in a determinateterritory.

It is Our considered view that although the aforestated provision is incorporated in the Code ofCommerce which is part of the commercial laws of the Philippines, it, however, partakes of the natureof a political law as it regulates the relationship between the government and certain public officersand employees, like justices and judges.chanroblesvirtuallaw library

Political Law has been defined as that branch of public law which deals with the organization andoperation of the governmental organs of the State and define the relations of the state with theinhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled thatpolitical law embraces constitutional law, law of public corporations, administrative law including thelaw on public officers and elections. Specifically, Article 14 of the Code of Commerce partakes more ofthe nature of an administrative law because it regulates the conduct of certain public officers andemployees with respect to engaging in business: hence, political in essence.chanroblesvirtuallaw library

It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885,with some modifications made by the "Commission de Codificacion de las Provincias de Ultramar,"which was extended to the Philippines by the Royal Decree of August 6, 1888, and took effect as lawin this jurisdiction on December 1, 1888. chanroblesvirtuallaw library

Upon the transfer of sovereignty from Spain to the United States and later on from the United Statesto the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have beenabrogated because where there is change of sovereignty, the political laws of the former sovereign,


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whether compatible or not with those of the new sovereign, are automatically abrogated, unless theyare expressly re-enacted by affirmative act of the new sovereign.chanroblesvirtuallaw library

Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:

By well-settled public law, upon the cession of territory by one nation to another, either following a

conquest or otherwise, ... those laws which are political in their nature and pertain to the prerogativesof the former government immediately cease upon the transfer of sovereignty. (Opinion, Atty. Gen.,July 10, 1899).chanroblesvirtuallaw library

While municipal laws of the newly acquired territory not in conflict with the, laws of the new sovereigncontinue in force without the express assent or affirmative act of the conqueror, the political laws donot. (Halleck's Int. Law, chap. 34, par. 14). However, such political laws of the prior sovereignty asare not in conflict with the constitution or institutions of the new sovereign, may be continued in forceif the conqueror shall so declare by affirmative act of the commander-in-chief during the war, or byCongress in time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In thecase of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed.242), Chief Justice Marshall said:

On such transfer (by cession) of territory, it has never been held that the relations of the inhabitants

with each other undergo any change. Their relations with their former sovereign are dissolved, andnew relations are created between them and the government which has acquired their territory. Thesame act which transfers their country, transfers the allegiance of those who remain in it; and the lawwhich may be denominated political, is necessarily changed, although that which regulates theintercourse and general conduct of individuals, remains in force, until altered by the newly- createdpower of the State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a generalprinciple of the public law that on acquisition of territory the previous political relations of the cededregion are totally abrogated. "

There appears no enabling or affirmative act that continued the effectivity of the aforestated provisionof the Code of Commerce after the change of sovereignty from Spain to the United States and then to

the Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has no legal andbinding effect and cannot apply to the respondent, then Judge of the Court of First Instance, nowAssociate Justice of the Court of Appeals. chanroblesvirtuallaw library

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 ofRepublic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which providesthat:

Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers alreadypenalized by existing law, the following shall constitute corrupt practices of any public officer and arehereby declared to be unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transactionin connection with which he intervenes or takes part in his official capacity, or in which he is prohibitedby the Constitution or by any Iaw from having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is no showingthat respondent participated or intervened in his official capacity in the business or transactions of theTraders Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporationin which respondent participated has obviously no relation or connection with his judicial office. Thebusiness of said corporation is not that kind where respondent intervenes or takes part in his capacity


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as Judge of the Court of First Instance. As was held in one case involving the application of Article 216of the Revised Penal Code which has a similar prohibition on public officers against directly orindirectly becoming interested in any contract or business in which it is his official duty to intervene,"(I)t is not enough to be a public official to be subject to this crime; it is necessary that by reason ofhis office, he has to intervene in said contracts or transactions; and, hence, the official who intervenesin contracts or transactions which have no relation to his office cannot commit this crime.' (People vs.Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p.

1174, Vol. 11 [1976]). chanroblesvirtuallaw library

It does not appear also from the records that the aforesaid corporation gained any undue advantagein its business operations by reason of respondent's financial involvement in it, or that the corporationbenefited in one way or another in any case filed by or against it in court. It is undisputed that therewas no case filed in the different branches of the Court of First Instance of Leyte in which thecorporation was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R.Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein the complainant herein sought torecover Lot 1184-E from the aforesaid corporation. It must be noted, however, that Civil Case No.4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge JoseD. Nepomuceno when respondent Judge was no longer connected with the corporation, havingdisposed of his interest therein on January 31, 1967. chanroblesvirtuallaw library

Furthermore, respondent is not liable under the same paragraph because there is no provision in boththe 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly prohibitingmembers of the Judiciary from engaging or having interest in any lawful business.chanroblesvirtuallaw library

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of1948, does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said law,municipal judges may engage in teaching or other vocation not involving the practice of law afteroffice hours but with the permission of the district judge concerned.chanroblesvirtuallaw library

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is,as heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain toAmerica, because it is political in nature.chanroblesvirtuallaw library

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase byjudges of a property in litigation before the court within whose jurisdiction they perform their duties,cannot apply to respondent Judge because the sale of the lot in question to him took place after thefinality of his decision in Civil Case No. 3010 as well as his two orders approving the project ofpartition; hence, the property was no longer subject of litigation.chanroblesvirtuallaw library

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the CivilService Act of 1959 prohibits an officer or employee in the civil service from engaging in any privatebusiness, vocation, or profession or be connected with any commercial, credit, agricultural orindustrial undertaking without a written permission from the head of department, the same, however,may not fall within the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Actbecause the last portion of said paragraph speaks of a prohibition by the Constitution or law on anypublic officer from having any interest in any business and not by a mere administrative rule orregulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil service, that

is, engaging in private business without a written permission from the Department Head may notconstitute graft and corrupt practice as defined by law. chanroblesvirtuallaw library

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the CivilService Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rulespromulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of theJudiciary. Under said Section 12: "No officer or employee shall engage directly in any private business,vocation, or profession or be connected with any commercial, credit, agricultural or industrialundertaking without a written permission from the Head of Department ..."


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It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered byRepublic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7,Article X, 1973 Constitution. chanroblesvirtuallaw library

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the Presidentof the Philippines, not in the Commissioner of Civil Service, and only on two grounds, namely, seriousmisconduct and inefficiency, and upon the recommendation of the Supreme Court, which alone isauthorized, upon its own motion, or upon information of the Secretary (now Minister) of Justice toconduct the corresponding investigation. Clearly, the aforesaid section defines the grounds andprescribes the special procedure for the discipline of judges.chanroblesvirtuallaw library

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court candiscipline judges of inferior courts as well as other personnel of the Judiciary.chanroblesvirtuallaw library

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ...violation of the existing Civil Service Law and rules or of reasonable office regulations, or in theinterest of the service, remove any subordinate officer or employee from the service, demote him inrank, suspend him for not more than one year without pay or fine him in an amount not exceeding sixmonths' salary." Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action againstcivil service officers and employees. chanroblesvirtuallaw library

However, judges cannot be considered as subordinate civil service officers or employees subject to thedisciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not thehead of the Judicial Department to which they belong. The Revised Administrative Code (Section 89)and the Civil Service Law itself state that the Chief Justice is the department head of the SupremeCourt (Sec. 20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the onlyother or second branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation ofSection 12, Rule XVIII cannot be considered as a ground for disciplinary action against judges becauseto recognize the same as applicable to them, would be adding another ground for the discipline of

judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two grounds for theirremoval, namely, serious misconduct and inefficiency.chanroblesvirtuallaw library

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service

who has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, aftersubmission to it, all administrative cases againstpermanent officers and employees in the competitiveservice, and, except as provided by law, to have final authority to pass upon their removal,separation, and suspension and upon all matters relating to the conduct, discipline, and efficiency ofsuch officers and employees; and prescribe standards, guidelines and regulations governing theadministration of discipline" (emphasis supplied). There is no question that a judge belong to the non-competitive or unclassified service of the government as a Presidential appointee and is therefore notcovered by the aforesaid provision. WE have already ruled that "... in interpreting Section 16(i) ofRepublic Act No. 2260, we emphasized that only permanent officers and employees who belong to theclassified service come under the exclusive jurisdiction of the Commissioner of Civil Service" (Villaluzvs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]). chanroblesvirtuallaw library

Although the actuation of respondent Judge in engaging in private business by joining the TradersManufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the

provissions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and CorruptPractices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to theCivil Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon 25 ofthe Canons of Judicial Ethics expressly declares that:

A judge should abstain from making personal investments in enterprises which are apt to be involvedin litigation in his court; and, after his accession to the bench, he should not retain such investmentspreviously made, longer than a period sufficient to enable him to dispose of them without serious loss.It is desirable that he should, so far as reasonably possible, refrain from all relations which would


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normally tend to arouse the suspicion that such relations warp or bias his judgment, or prevent hisimpartial attitude of mind in the administration of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn onJanuary 31, 1967 from the aforesaid corporation and sold their respective shares to third parties, andit appears also that the aforesaid corporation did not in anyway benefit in any case filed by or againstit in court as there was no case filed in the different branches of the Court of First Instance of Leytefrom the time of the drafting of the Articles of Incorporation of the corporation on March 12, 1966, upto its incorporation on January 9, 1967, and the eventual withdrawal of respondent on January 31,1967 from said corporation. Such disposal or sale by respondent and his wife of their shares in thecorporation only 22 days after the incorporation of the corporation, indicates that respondent realizedthat early that their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judgeand his wife therefore deserve the commendation for their immediate withdrawal from the firm afterits incorporation and before it became involved in any court litigation

III

With respect to the third and fourth causes of action, complainant alleged that respondent was guiltyof coddling an impostor and acted in disregard of judicial decorum, and that there was culpabledefiance of the law and utter disregard for ethics. WE agree, however, with the recommendation of

the Investigating Justice that respondent Judge be exonerated because the aforesaid causes of actionare groundless, and WE quote the pertinent portion of her report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent associated and closelyfraternized with Dominador Arigpa Tan who openly and publicly advertised himself as a practisingattorney (see Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa Tan does not appearin the Roll of Attorneys and is not a member of the Philippine Bar as certified to in Exh. K. chanroblesvirtuallaw library

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and claims that all thetime he believed that the latter was a bona fide member of the bar. I see no reason for disbelievingthis assertion of respondent. It has been shown by complainant that Dominador Arigpa Tanrepresented himself publicly as an attorney-at-law to the extent of putting up a signboard with hisname and the words "Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was but natural

for respondent and any person for that matter to have accepted that statement on its face value."Now with respect to the allegation of complainant that respondent is guilty of fraternizing withDominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr. Tan's child atbaptism (Exh. M & M-1), that fact even if true did not render respondent guilty of violating any canonof judicial ethics as long as his friendly relations with Dominador A. Tan and family did not influencehis official actuations as a judge where said persons were concerned. There is no tangible convincingproof that herein respondent gave any undue privileges in his court to Dominador Arigpa Tan or thatthe latter benefitted in his practice of law from his personal relations with respondent, or that he usedhis influence, if he had any, on the Judges of the other branches of the Court to favor said DominadorTan.chanroblesvirtuallaw library

Of course it is highly desirable for a member of the judiciary to refrain as much as possible frommaintaining close friendly relations with practising attorneys and litigants in his court so as to avoidsuspicion 'that his social or business relations or friendship constitute an element in determining his

judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does have social relations, that initself would not constitute a ground for disciplinary action unless it be clearly shown that his socialrelations be clouded his official actuations with bias and partiality in favor of his friends (pp. 403-405,rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did notviolate any law in acquiring by purchase a parcel of land which was in litigation in his court and inengaging in business by joining a private corporation during his incumbency as judge of the Court ofFirst Instance of Leyte, he should be reminded to be more discreet in his private and business


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activities, because his conduct as a member of the Judiciary must not only be characterized withpropriety but must always be above suspicion.chanroblesvirtuallaw library

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBYREMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.chanroblesvirtuallaw library

SO ORDERED.

Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ.,concur.chanroblesvirtual law library

Concepcion Jr., J., is on leave. chanroblesvirtual law library

Fernando, C.J., Abad Santos and Esolin JJ., took no part.

Separate Opinions

AQUINO,J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO,J.,concurring and dissenting:

I vote with Justice Aquino.

Separate Opinions

AQUINO,J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO,J.,concurring and dissenting:

I vote with Justice Aquino.


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G.R. No. L-32432 September 11, 1970

MANUEL B. IMBONG, Petitioner, vs. JAIME FERRER, as Chairman of the Comelec, LINO M.PATAJO and CESAR MILAFLOR, as members thereof, Respondents.

G.R. No. L-32443 September 11, 1970

IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE VALIDITYOF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION ACT OF

1970. RAUL M. GONZALES, Petitioner, vs. COMELEC, Respondent.

MAKASIAR,J.:

These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A.No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar, taxpayersand interested in running as candidates for delegates to the Constitutional Convention. Both impugnthe constitutionality of R.A. No. 6132, claiming during the oral argument that it prejudices their rightsas such candidates. After the Solicitor General had filed answers in behalf the respondents, hearingswere held at which the petitioners and the amici curiae, namely Senator Lorenzo Taada, Senator

Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez argued orally.chanroblesvirtualawlibrarychanroblesvirtuallaw library

It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant toArt. XV of the Constitution, passed Resolution No. 2 which among others called for a ConstitutionalConvention to propose constitutional amendments to be composed of two delegates from eachrepresentative district who shall have the same qualifications as those of Congressmen, to be electedon the second Tuesday of November, 1970 in accordance with the Revised Election Code. chanroblesvirtualawlibrarychanroblesvirtuallaw library

After the adoption of said Res. No. 2 in 1967 but before the November elections of that year,Congress, acting as a legislative body, enacted Republic Act No. 4914 implementing the aforesaidResolution No. 2 and practically restating in toto the provisions of said Resolution No. 2. chanroblesvirtualawlibrarychanroblesvirtuallaw library

On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention "shall becomposed of 320 delegates apportioned among the existing representative districts according to thenumber of their respective inhabitants: Provided, that a representative district shall be entitled to atleast two delegates, who shall have the same qualifications as those required of members of theHouse of Representatives,"1"and that any other details relating to the specific apportionment ofdelegates, election of delegates to, and the holding of, the Constitutional Convention shall beembodied in an implementing legislation: Provided, that it shall not be inconsistent with the provisionsof this Resolution."2chanroblesvirtuallaw library

On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132,implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No.4914.3chanroblesvirtuallaw library

Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions

embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns theconstitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically on the same groundsadvanced by petitioner Gonzales.

I

The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees, whetherelective or appointive, including members of the Armed Forces of the Philippines, as well as officersand employees of corporations or enterprises of the government, as resigned from the date of the


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district, they would have done so in so many words as they did in relation to the apportionment of therepresentative districts.5chanroblesvirtuallaw library

The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intentexpressed therein; for it merely obeyed and implemented the intent of Congress acting as aConstituent Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates shouldbe apportioned among the existing representative districts according to the number of their respectiveinhabitants, but fixing a minimum of at least two delegates for a representative district. Thepresumption is that the factual predicate, the latest available official population census, for suchapportionment was presented to Congress, which, accordingly employed a formula for the necessarycomputation to effect the desired proportional representation. chanroblesvirtualawlibrarychanroblesvirtuallaw library

The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now R.A.No. 6132, submitted to this Tribunal by the amici curiae, show that it based its apportionment of thedelegates on the 1970 official preliminary population census taken by the Bureau of Census andStatistics from May 6 to June 30, 1976; and that Congress adopted the formula to effect a reasonableapportionment of delegates. The Director of the Bureau of Census and Statistics himself, in a letter toSenator Pelaez dated July 30, 1970, stated that "on the basis of the preliminary count of thepopulation, we have computed the distribution of delegates to the Constitutional Convention based onSenate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method of

distributing the delegates pursuant to the provisions of the joint Resolution of both Houses No. 2, asamended. Upon your request at the session of the Senate-House Conference Committee meeting lastnight, we are submitting herewith the results of the computation on the basis of the above-statedmeth

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