April 2005 - Philippine Supreme Court Decisions/Resolutions
Philippine Supreme Court Jurisprudence
PCGG v. Sandiganbayan: 151809-12 : April 12, 2005 : J. Panganiban : En Banc : Separate Opinion
EN BANC
[G.R. NOS. 151809-12. April 12, 2005]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioner, v. SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG (represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C. TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION, ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC., MANUFACTURING SERVICES AND TRADE CORP., MARANAW HOTELS AND RESORT CORP., NORTHERN TOBACCO REDRYING PLANT, PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P. MENDOZA, Respondents.
SEPARATE OPINION
PANGANIBAN, J.:
The Petition in this case should be DISMISSED on two grounds: (1) res judicata, specifically, conclusiveness of judgment; and (2) prescription.
In his Dissent, the esteemed Justice Romeo J. Callejo Sr. argues that Atty. Estelito P. Mendoza violated Rule 6.03 of the Code of Professional Responsibility,1 because after leaving his post as solicitor general, he appeared as counsel in a 'matter in which he had intervened while he was in said service (as solicitor general). He postulates that the Code of Professional Responsibility should be a beacon to assist good lawyers 'in navigating an ethical course through the sometimes murky waters of professional conduct, in order 'to avoid any appearance of impropriety. He adds that the Code should be strictly construed and stringently enforced.
On the other hand, the distinguished Justice Reynato S. Puno contends in his ponencia that Rule 6.03 of the Code has been incorrectly applied by Justice Callejo, because the 'procedural advice given by Atty. Mendoza is not the 'matter contemplated by the said Rule. The ponencia explains that an 'ultra restrictive reading of the Rule would have 'ill-effects in our jurisdiction.
With due respect to both Justices Puno and Callejo, I respectfully submit that there is no need to delve into the question of whether Rule 6.03 has been transgressed; there is no need to discuss the merits of the questioned Sandiganbayan Resolutions allowing Atty. Mendoza to represent private respondents in Civil Case Nos. 0096-0099. After all, a Resolution issued by the same court resolving the very same issue on the 'disqualification of Atty. Mendoza in a case involving the same parties and the same subject matter has already become final and immutable. It can no longer be altered or changed.
I believe that the material issue in the present controversy is whether Atty. Mendoza may still be barred from representing these respondents despite (1) a final Order in another case resolving the very same ground for disqualification involving the same parties and the same subject matter as the present case; and (2) the passage of a sufficient period of time from the date he ceased to be solicitor general to the date when the supposed disqualification (for violation of the Code) was raised.
Conclusiveness
of Judgment
The doctrine of res judicata is set forth in Section 47 of Rule 39 of the Rules of Court, the relevant part of which I quote as follows:
Sec. 47. Effect of judgments or final orders.
The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:
x x x x x x x x x
(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; andcralawlibrary
(c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.
The above provision comprehends two distinct concepts of res judicata: (1) bar by former judgment and (2) conclusiveness of judgment. Under the first concept, res judicata serves as an absolute proscription of a subsequent action when the following requisites concur: (1) the former judgment or order was final; (2) it adjudged the pertinent issue or issues on their merits; (3) it was rendered by a court that had jurisdiction over the subject matter and the parties; and (4) between the first and the second actions, there was identity of parties, of subject matter, and of causes of action.2 ςrνll
In regard to the fourth requirement, if there is no identity of causes of action but only an identity of issues, res judicata exists under the second concept; that is, under conclusiveness of judgment. In the latter concept, the rule bars the re-litigation of particular facts or issues involving the same parties but on different claims or causes of action.3 Such rule, however, does not have the same effect as a bar by former judgment, which prohibits the prosecution of a second action upon the same claim, demand or cause of action.
In other words, conclusiveness of judgment finds application when a fact or question has been squarely put in issue, judicially passed upon, and adjudged in a former suit by a court of competent jurisdiction; it has thus been conclusively settled by a judgment or final order issued therein. Insofar as the parties to that action (and persons in privity with them) are concerned, and while the judgment or order remains unreversed or un-vacated by a proper authority upon a timely motion or petition, such conclusively settled fact or question cannot again be litigated in any future or other action between the same parties or their privies, in the same or in any other court of concurrent jurisdiction, either for the same or for a different cause of action. Thus, the only identities required for the operation of the principle of conclusiveness of judgment is that between parties and issues.4 ςrνll
While it does not have the same effect as a bar by former judgment, which proscribes subsequent actions, conclusiveness of judgment nonetheless operates as an estoppel to issues or points controverted, on which the determination of the earlier finding or judgment has been anchored.5 The dictum laid down in such a finding or judgment becomes conclusive and continues to be binding between the same parties, as long as the facts on which that judgment was predicated continue to be the facts of the case or incident before the court. The binding effect and enforceability of that dictum can no longer be re-litigated, since the said issue or matter has already been resolved and finally laid to rest in the earlier case.6
Relevant Antecedents
Showing the Application of the
Conclusiveness Doctrine
Let me now discuss some relevant antecedents to show the application to this case of res judicata, specifically the principle of conclusiveness of judgment.
Pursuant to Executive Order No. 1 of then President Corazon C. Aquino, the Presidential Commission on Good Government (PCGG) issued sometime in June to August 1986 several Writs of Sequestration over certain properties of Respondents Lucio Tan et al., properties they had supposedly acquired by taking advantage of their close relationship with former President Ferdinand E. Marcos.
On August 17, 1987, the PCGG instituted before the Sandiganbayan a Complaint against the same respondents for 'reversion, reconveyance, restitution, accounting and damages' vis--vis their sequestered properties. The Complaint was docketed as Civil Case No. 0005 and raffled to the Second Division of the Sandiganbayan (SBN).
Meanwhile, in separate Petitions before this Court, the validity of the sequestration Writs was questioned by herein respondents, but said Petitions were referred by the Court to the Sandiganbayan for proper disposition. These cases were raffled to the SBN Fifth Division and docketed as Civil Case Nos. 0096, 0097, 0098 and 0099. Civil Case No. 0096, in particular, involved the validity of the Writ of Sequestration issued by the PCGG over herein private respondents' shares of stock in Allied Banking Corporation (formerly General Bank and Trust Company or 'GenBank').
In all the above-mentioned cases, Atty. Estelito P. Mendoza was the counsel of Tan et al.
On February 5, 1991, the PCGG filed in Civil Case No. 0005 a Motion7 to disqualify Atty. Mendoza as counsel for therein Respondents Tan et al. In a Resolution8 dated April 22, 1991, the Sandiganbayan (Second Division) denied that Motion. The anti-graft court likewise denied the Motion for Reconsideration filed by the PCGG.9 Because the latter did not appeal the denial, the Resolution became final and executory.
Similarly, in Civil Case Nos. 0096-0099, PCGG filed a Motion10 to disqualify Atty. Mendoza as counsel for Respondents Lucio Tan et al. According to respondent court, 'the motion is exactly the same in substance as that motion filed in Civil Case No. 0005; in fact, both incidents were taken up jointly by the Second and the Fifth Divisions of the Sandiganbayan.11 Indeed, a perusal of both Motions reveals that, except as to their respective captions, the contents of the Motions are identically worded. Both Motions were anchored essentially on the same ground: that by virtue of Rule 6.03 of the Code of Professional Responsibility, Atty. Mendoza was prohibited from acting as counsel of Tan et al. in the pending cases. During his tenure as solicitor general, Atty. Mendoza had allegedly 'intervened in the dissolution of GenBank, Allied Bank's predecessor.
Thus, in its herein assailed July 11, 2001 Resolution, respondent court resolved to reiterate and adopt 'the Resolution dated April 22, 1991 in Civil Case No. 0005 of the Second Division x x x denying the motion.
Resolution in Civil Case
No. 0005 a Final Order
As distinguished from an interlocutory order, a final judgment or order decisively puts an end to (or disposes of) a case or a disputed issue; in respect thereto, nothing else -- except its execution -- is left for the court to do. Once that judgment or order is rendered, the adjudicative task of the court on the particular matter involved is likewise ended.12 Such an order may refer to the entire controversy or to some defined and separate branch thereof.13 On the other hand, an order is interlocutory if its effects are merely provisional in character and still leave substantial proceedings to be further conducted by the issuing court in order to put the issue or controversy to rest.14 ςrνll
I have no quarrel with the general test -- expounded, with acknowledged authorities, in the Dissenting Opinions of Justices Conchita Carpio Morales and Callejo -- for determining whether an order is interlocutory. Such test, however, applies to orders that dispose of incidents or issues that are intimately related to the very cause of action or merits of the case. The exception lies when the order refers to a 'definite and separate branch of the main controversy, as held by the Court in Republic v. Tacloban City Ice Plant.15 ςrνll
Under the present factual milieu, the matter of disqualification of Atty. Mendoza as counsel for respondents is a 'defined and separate branch of the main case for 'reversion, reconveyance, and restitution of the sequestered properties. This matter has no direct bearing on the adjudication of the substantive issues in the principal controversy. The final judgment resolving the main case does not depend on the determination of the particular question raised in the Motion. The April 22, 1991 Resolution of the Sandiganbayan (Second Division) in Civil Case No. 0005 had finally and definitively determined the issue of Atty. Mendoza's disqualification to act as counsel for Tan et al. Since that Resolution was not appealed, it became final and executory. It became a conclusive judgment insofar as that particular question was concerned.
Applying the Doctrine of
Conclusiveness of Judgment
There is no question as regards the identity of the parties involved in Civil Case Nos. 0005 and 0096. Neither has the jurisdiction of the Second and the Fifth Divisions of the Sandiganbayan been placed at issue. Clearly, the matter raised in the two Motions to Disqualify, though separately filed at different times in those two cases, are likewise the same or identical. Also undisputed is the fact that no appeal or certiorari petition was taken from the April 22, 1991 Resolution of the Second Division in Civil Case No. 0005, which had denied PCGG's Motion.
To counter the application of res judicata, Justices Morales and Callejo opine that the said April 22, 1991 Resolution was merely interlocutory. It 'merely settled an incidental or collateral matter x x x; it cannot operate to bar the filing of another motion to disqualify Atty. Mendoza in the other cases x x x, Justice Callejo explains. I beg to disagree.
True, there is, as yet, no final adjudication of the merits of the main issues of 'reversion, reconveyance and restitution. However, I submit that the question with respect to the disqualification of Atty. Mendoza had nonetheless been conclusively settled. Indeed, the April 22, 1991 SBN Resolution had definitively disposed of the Motion to Disqualify on its merits. Since no appeal was taken therefrom, it became final and executory after the lapse of the reglementary period.16 ςrνll
While it merely disposed of a question that was collateral to the main controversy, the Resolution should be differentiated from an ordinary interlocutory order that resolves an incident arising from the very subject matter or cause of action, or one that is related to the disposition of the main substantive issues of the case itself. Such an order is not appealable, but may still be modified or rescinded upon sufficient grounds adduced before final judgment. Verily, res judicata would not apply therein.17 ςrνll
But, as illustrated earlier, the issue of the disqualification of Atty. Mendoza is separate from and independent of the substantive issues in the main case for 'reversion, reconveyance and restitution. This particular question, in relation to Rule 6.03 of the Code of Professional Responsibility, was finally settled in the Resolution of April 22, 1991, issued by the SBN Second Division. In fact, I submit that this question had to be squarely resolved before trial proceeded, so as not to prejudice the movant in case its arguments were found to be meritorious. Otherwise, the Motion would be rendered naught.
In 2001, ten years after its filing, the identical Motion to Disqualify Atty. Mendoza in Civil Case Nos. 0096-0099 finally came up for deliberation before the Fifth Division of the Sandiganbayan. The Fifth Division correctly noted that the pending Motion was 'exactly the same in substance as that Motion filed in Civil Case No. 0005. Thus, it resolved to reiterate and adopt the Second Division's April 22, 1991 Resolution denying the Motion. Interestingly and understandably, the Fifth Division of the anti-graft court no longer separately reviewed the merits of the Motion before it, because the Second Division's Resolution disposing of exactly the same Motion and involving the same parties and subject matter had long attained finality. That Resolution became a conclusive judgment between the parties with respect to the subject matter involved therein.
Exception to Application of
Conclusiveness of Judgment
Justice Morales further cites Kilosbayan v. Morato,18 in which the Court19 said that 'the rule on conclusiveness of judgment or preclusion of issues or collateral estoppel does not apply to issues of law, at least when substantially unrelated claims are involved. 'Explaining further, the Court cited therein the 'authoritative formulation of the exception in Restatement of the Law 2d, on Judgments, thus:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
28. Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
x x x x x x x x x
(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account or an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; x x x. [Emphasis and omissions in the original.]
In accordance with the above exception to the rule, Justice Morales believes that the doctrine of conclusiveness of judgment does not apply to this case, because the issue at bar -- disqualification of counsel -- 'is undoubtedly a legal question and 'Civil Case No. 005 and Civil Case No. 0096 involve two different substantially unrelated claims.
I respectfully disagree with respect to her second point, which actually qualifies the exception. I believe that the two cases involve substantially related claims. Civil Case No. 0005 seeks to recover alleged ill-gotten shares of stock of respondents Tan et al. in Allied Bank. Civil Case No. 0096 questions the validity of the Sequestration Writ over the same shares of stock involved in Civil Case No. 0005. In the ultimate analysis, both cases refer to the determination of who has a valid ownership claim over said stockholdings.
In any event and as earlier discussed, in our jurisdiction, the only identities required for the principle of conclusiveness of judgment to operate as an estoppel are those of parties and issues.20
Similar Motions in
Other PCGG Cases
Parenthetically, it is worth mentioning that in their Memorandum,21 Respondents Tan et al. aver that similar Motions to Disqualify Atty. Mendoza were likewise filed in Sandiganbayan Civil Case Nos. 0095 and 0100. The former case, Sipalay Trading v. PCGG, involved shares of stock of Lucio Tan in Maranaw Hotels and Resort Corporation; the latter case, Allied Banking Corporation v. PCGG, sought the invalidation of an Order for the search and seizure of certain documents of Allied Bank.
In both cases, the Sandiganbayan denied the separate Motions to Disqualify, as well as the Motions for Reconsideration. No further actions were taken by the PCGG on such denials, which thus became executory. Consequently, Atty. Mendoza was allowed to represent Lucio Tan in those cases.
On the merits of the said cases, which were consolidated, the Sandiganbayan granted both Petitions on August 23, 1993, by nullifying the Writ of Sequestration questioned in Civil Case No. 0095, as well as the Search and Seizure Order assailed in Civil Case No. 0100. On March 29, 1996, the Supreme Court affirmed the SBN's Decision in the aforementioned consolidated cases.22 Consequently, now deemed res judicata are all issues raised in Civil Case Nos. 0095 and 0100 -- principal, incidental and corollary issues, including the matter of the alleged disqualification of Atty. Mendoza.
Presence of Identities of
Parties and Issues
As earlier discussed, the only identities required for the principle of conclusiveness of judgment to operate as an estoppel are those of parties and issues. In the case before us, both identities are clearly present. Hence, the principle of conclusiveness of judgment applies and bars the present Petition.
From the foregoing, I submit that this Petition should be dismissed on the ground of conclusiveness of judgment. Parenthetically, the proper recourse to assail the July 11, 2001 and the December 5, 2001 Resolutions of the Sandiganbayan (Fifth Division) should have been a Petition for Review under Rule 45 of the Rules of Court. The certiorari proceeding before this Court is apparently a substitute for a lost appeal, deserving only of outright dismissal.23 In any event, contrary to the allegations of petitioner, respondent court did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the assailed Resolutions.
Proscription
Time-Barred
True, Rule 6.03 of the Code of Professional Responsibility does not expressly specify the period of its applicability or enforceability. However, I submit that one cannot infer that, ergo, the prohibition is absolute, perpetual and permanent.
All civil actions have a prescriptive period.24 Unless a law makes an action imprescriptible or lays down no other period, the action is subject to a bar by prescription five (5) years after the right of action accrued.25 Criminal offenses -- even the most heinous ones -- as well as the penalties therefor, likewise prescribe.26 Relatedly, even so-called perpetual penalties and multiple sentences have maximum periods.27 ςrνll
Relevantly, it is worth pointing out that Republic Act No. 6713 prohibits public officers and employees from practicing their profession for only one year after their resignation, retirement or separation from public office, in connection with any matter before their former office.28 ςrνll
Prescription is intended to suppress stale and fraudulent claims arising from transactions or facts that have been obscured by defective memory or the lapse of time.29 It was d esigned to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until relevant proofs are lost, memories faded, and witnesses no longer available.30 Consistent with law and jurisprudence and the purpose of statutes of limitations, the prohibition on former government attorneys from involvement in matters in which they took part long ago, pursuant to their official functions while in public service, should likewise have an expiry or duration.
In the present case, the liquidation of GenBank, in which Atty. Mendoza purportedly participated as then solicitor general, took place in 1977 or more than a quarter of a century ago. Since early 1986, he has ceased to be solicitor general and has since engaged in the private practice of law. In 1987, he became counsel for Respondents Tan et al. in Civil Case No. 0005 and, since 1990, in Civil Case Nos. 0095 to 0100.31 At the time, at least ten (10) years had passed since his alleged involvement in the GenBank liquidation. Moreover, in 1991 when the separate Motions to Disqualify were filed by PCGG in these aforementioned cases, he had been outside government service for about five (5) years, and fifteen years had gone by since the said liquidation.
Now it is already 2005. If we go by the rationale behind prescription, the extent of the individual participation of government officials in the GenBank liquidation may indeed 'have become so obscure from the lapse of time, if not from 'defective memory.
It is undeniable that government lawyers usually handle a multitude of cases simultaneously or within overlapping periods of time. This is in fact a common remonstration, especially among prosecutors, public attorneys, solicitors, government corporate counsels, labor arbiters, even trial and appellate judges. Yet, as dutiful public servants, they cannot reject or shrink from assignments even if they are already overloaded with work. Similarly, lawyers in private practice, whether by themselves or employed in law firms, are in a comparative plight.
It would not be strange or uncommon that, in a period of five years, an attorney in government service would have handled or interfered in hundreds of legal matters involving varied parties.32 Thousands of attorneys who have chosen to dedicate their service to the government for some years are in such a situation. Hence, to perpetually and absolutely ban them from taking part in all cases involving some matter in which they have taken part in some distant past, pursuant to their official functions then, would be unduly harsh, unreasonable and unfair. It would be tantamount to an unwarranted deprivation of the exercise of their profession. Be it remembered that a profession, trade or calling partakes of the nature of a property right within the meaning of our constitutional guarantees.33 ςrνll
Moreover, to attribute to a former government lawyer a violation of some ethical rule because of participation in a matter that has been forgotten in good faith due to the lapse of a long period of time and does not involve interest adverse to the government would likewise be harsh, unreasonable and unfair.
Similarly, there are many competent private practitioners who, at some point in their long careers, would wish to serve the government. Would their fine and wide-ranging practice and experience, which would otherwise be beneficial to the government, likewise forever bar them from getting involved in matters that concern a party with whom they have had dealings several years ago and whose interests are not adversely affected? In the case of acknowledged experts in specific fields of law, of what use would their needed expertise be to the government if they have to inhibit themselves from every case involving a party they have served in the distant past, considering the limited number of parties that may actually be involved in a specific field (for instance, intellectual property or bioethics law)?chanroblesvirtualawlibrary
I submit that the restraint on the exercise of one's profession, or right of employment including that of attorneys formerly in government service, must survive the test of fairness and reasonableness. The restriction should not be as pervasive and longer than is necessary to afford a fair and reasonable protection to the interests of the government. After all, the disqualification of government attorneys is a drastic measure, and courts should hesitate to impose it except when necessary.34 ςrνll
Thus, I submit that the restriction on government lawyers -- specifically with respect to subsequent engagement or employment in connection with matters falling under the 'congruent-interest representation -- should be allowed to expire after a reasonable period when no further prejudice to the public may be contemplated. The duration of this prohibition should be no more than five (5) years from retirement or separation from government service. Five years is the prescriptive period for suits for which no period is prescribed by law.35 ςrνll
It would be reasonable to assume that five years after separation from the service, one would most likely have lost the loyalty of one's former personal contacts, if not the loyal associates themselves, who may be able to facilitate the acquisition of important information from the former office. In all probability, the lapse of the said period would also naturally obscure to a reasonable extent a lawyer's memory of details of a specific case despite active participation in the proceedings therein. This principle holds if, in the interval, one has handled countless other legal matters as is so common among lawyers in government offices.
Consequently, after the said period, former government attorneys should be allowed to take up cases involving matters that were brought before them during their incumbency in public office, so long as such matters do not come within the 'adverse-interest conflict doctrine and the conflict-of-interest rule36 applicable to all lawyers in general.
For the same reasons, the disqualification of members of the judiciary under Section 5(b) and (d)37 of Canon 3 of the New Code of Judicial Conduct38 should also prescribe in five (5) years from the time they assumed their judicial position; or from the time they retire from or otherwise end their government service.
I realize that the application of Rule 6.03 of the Code of Professional Responsibility and Section 5 of Canon 3 of the New Code of Judicial Conduct is quite important to many members of the bar who have served, or who aspire to serve, the government.
On the one hand, our rules of discipline should protect the interest of the public by discouraging attorneys in government from so shaping their practice as to give unfair advantage to their future private clients, or from jeopardizing confidential information learned while in government service. On the other hand, government service should not be discouraged by overly strict ethical rules that perpetually prohibit government lawyers from later making reasonable and appropriate use in private practice of the expertise or experience they have gained.39 ςrνll
The reality is that the best lawyers will want to join the more lucrative private sector sooner or later, and the government will hardly be able to attract them if they would later be unreasonably restricted from putting their government experience to some use.40 After all, government service should afford lawyers the opportunity to improve their subsequent private employment. The nature of the job brings such lawyers into inevitable contact with clients interested in their fields of expertise. Because the practice of law is becoming increasingly specialized, the likely consequence of a wholesale approach to disqualification would be encouragement of a two-track professional structure: government lawyer, private lawyer. The suspicion, and the reality, of ethical improprieties unrelated to particular government cases would be eliminated -- but at the cost of creating an insular, static legal bureaucracy.41 ςrνll
Such a pervasive, perpetual ban would deter too many competent attorneys from entering government service, to the detriment of the public.42 The Court must strike a balance. I believe that the adoption of the aforementioned period of limitation would achieve the purpose behind Rule 6.03 of the Code of Professional Responsibility, as well as Section 5 of Canon 3 of the New Code of Judicial Conduct.
To summarize, the present Petition is barred by the principle of conclusiveness of judgment, because the April 22, 1991 Resolution of the SBN Second Division in Civil Case No. 0005 -- which resolved on the merits the very same ground for the disqualification of Atty. Mendoza, and which involved essentially the same parties and the same subject matter as the present case -- constituted a final and executory order, no timely appeal having been taken therefrom.
Furthermore, the disqualification of former government lawyers from congruent-interest representation under Rule 6.03 of the Code of Professional Responsibility should be effective only for a period of five (5) years from the retirement or the separation from government service of the official concerned. The purpose of such prescriptive period is to prevent undue restraint on former government lawyers from the private practice of their profession, especially in the field of expertise that they may have gained while in public office. Similarly, the disqualification of members of the judiciary, under Section 5 (b) and (d) of Canon 3 of the New Code of Judicial Conduct should end five (5) years after they assumed their judicial position.
Implications of the
Dissenting Opinions
Endless re-litigations of the same question, as well as forum shopping, are invited by the opinion of the dissenters that the April 22, 1991 Resolution of the Sandiganbayan's Second Division in Civil Case No. 0005 does not bar the filing of another motion to disqualify Atty. Mendoza from other cases between the same parties. Such a holding would effectively allow herein petitioner to file exactly the same Motion in each of other and future cases involving the same parties or their privies and the same subject matters, even after the first Motion involving the same question or issue will have already been finally resolved in one of like cases.
Further, it would also allow petitioner to let a contrary resolution of the incident in one case become final through petitioner's withholding recourse to a higher court in order to await a possible favorable ruling in one of the other cases. As it is, absurdity already surrounds the handling of Civil Case No. 0005 and No. 0096, both of which involve the same parties and the same subject matter.
In Civil Case No. 0005, which seeks to recover allegedly unlawfully acquired properties consisting of shares of stock of Respondent Tan et al. in Allied Bank, Atty. Mendoza is allowed to serve as their counsel. However, in Civil Case No. 0096, which merely questions the validity of the Writ of Sequestration issued against the shares of stock in Allied Bank of the same respondents, he is prohibited, per the dissenters, from acting as their counsel. This is preposterous.
Moreover, treating the first Resolution as not yet final and executory, even if no appeal or certiorari has timely been taken therefrom, would allow the questioned counsel to act as such throughout the trial period until final judgment by the court a quo. Thereafter, on appeal, his alleged 'disqualification may still be raised by the other party as an issue. If the appeals court or this Tribunal ultimately finds that the said counsel is indeed disqualified on the ground of conflict of interest or 'congruent-interest representation conflict and thus reverses the trial court's ruling, the case would necessarily be remanded for new trial. As a result, the entire proceedings would become naught and thereby unnecessarily waste the precious time, effort and resources of the courts as well as the parties. Worse, the evidence (or defense) adduced by the 'disqualified counsel through his prior connections with the government (or the adverse party) could have already created bias in the court or in the public mind.
These are precisely the procedural absurdities abhorred by the doctrine of res judicata, the fundamental principle of due process and of the rule proscribing forum shopping.
Having already shown that Atty. Mendoza can no longer be disqualified at this point for his alleged violation of Rule 6.03 of the Code of Professional Responsibility, due to res judicata and prescription, I submit that there is no more need to discuss on the merits whether indeed there was in fact such violation. Such discussion would be merely academic and moot.
May I close this Opinion with this oft-quoted ruling of former Chief Justice Pedro L. Yap, who was himself a former PCGG commissioner, on the soundness of upholding final judgments even 'at the risk of occasional errors' :ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
"It is a general rule common to all civilized system of jurisprudence, that the solemn and deliberate sentence of the law, pronounced by its appointed organs, upon a disputed fact or a state of facts, should be regarded as a final and conclusive determination of the question litigated, and should forever set the controversy at rest. Indeed, it has been well said that this maxim is more than a mere rule of law, more than an important principle of public policy: and that it is not too much to say that it is a fundamental concept in the organization of the jural sytem. Public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. The very object for which courts were constituted was to put an end to controversies."43 ςrνll
WHEREFORE, I vote to DISMISS the Petition.
Endnotes:
1 'Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service.
2 Sta. Lucia Realty and Development v. Cabrigas, 358 SCRA 715, June 19, 2001.
3 Ibid.
4 Nabus v. Court of Appeals, 193 SCRA 732, February 7, 1991 (reiterated in Calalang v. Register of Deeds, 231 SCRA 88, March 11, 1994; and in Intestate Estate of San Pedro v. Court of Appeals, 265 SCRA 733, December 18, 1996).
5 Camara v. Court of Appeals, 310 SCRA 608, July 20, 1999.
6 Miranda v. Court of Appeals, 141 SCRA 302, February 11, 1986; Vda. De Sta. Romana v. Philippine Commercial and Industrial Bank, 118 SCRA 330,November 15, 1982.
7 Rollo, pp. 216-220.
8 Penned by Justice Romeo M. Escareal (chairman) and concurred in by Justices Jose S. Balajadia and Nathanael M. Grospe (members); rollo, pp. 57-63.
9 Resolution dated July 24, 1991; rollo, pp. 233-237.
10 Rollo, pp. 221-225.
11 Resolution dated July 11, 2001 of the Sandiganbayan (Fifth Division), referring to the Record of Civil Case No. 0096, Vol. I, pp. 134-135; rollo, p. 42. This unsigned Resolution was unanimously approved by Justices Minita V. Chico-Nazario (Division chairperson, now a member of this Court), Rodolfo G. Palattao and Ma. Cristina Cortez-Estrada (members).
12 Santo Tomas University Hospital v. Surla, 355 Phil. 804, August 17, 1998 (citing Investments, Inc. v. Court of Appeals, 147 SCRA 334, January 27, 1987; and Denso [Phils.], Inc. v. Intermediate Appellate Court, 148 SCRA 280, February 27, 1987). In this case, the Court held:
The order of the trial court dismissing petitioner's counterclaim was a final order since the dismissal, although based on a technicality, would require nothing else to be done by the court with respect to that specific subject except only to await the possible filing during the reglementary period of a motion for reconsideration or the taking of an appeal therefrom.
The Court further said that errors of judgment, as well as procedure, that do not relate to the jurisdiction of the court or involve grave abuse of discretion are reviewable by timely appeal, not by a special civil action for certiorari , unless for valid and compelling reasons.
13 Tambaoan v. Court of Appeals, 417 Phil. 683, September 17, 2001 (citing Republic v. Tacloban City Ice Plant, 258 SCRA 145, July 5, 1996; and Dela Cruz v. Paras, 69 SCRA 556, February 27, 1976).
14 Santo Tomas University Hospital v. Surla, supra (citing Bairan v. Tan Siu Lay, 18 SCRA 1235, December 28, 1966).
15 Supra, p. 155.
16 Pascual v. Court of Appeals, 300 SCRA 214, December 16, 1998; Navarro v. NLRC, 327 SCRA 22, March 1, 2000;Testate Estate of Manuel v. Biascarr, 347 SCRA 621, December 11, 2000; People v. Alay-ay, 363 SCRA 603, August 23, 2001; Vda. de Sta. Romana v. Philippine Commercial & Industrial Bank, supra.
17 Electric Co. v. Arciaga, 50 Phil. 144, March 18, 1927 (citing Reilly v. Perkins, 56 Pac 734).
18 246 SCRA 540, 561, July 17, 1995, per Mendoza, J.
19 Voting here was close (5 justices fully concurred in the ponencia, 2 wrote separate concurring opinions, while 5 dissented.)
20 Nabus v. Court of Appeals, supra.
21 Rollo, pp. 391-471.
22 GR Nos. 112708-09, 255 SCRA 438, March 29, 1996.
23 Spouses Morales v. Court of Appeals, 285 SCRA 337, January 28, 1998; Cabellan v. Court of Appeals, 304 SCRA 119, March 3, 1999; Republic v. Court of Appeals, 322 SCRA 81, January 18, 2000.
24 See Arts. 1140-1149, Civil Code.
25 Tolentino v. Court of Appeals, 162 SCRA 66, June 10, 1988.
26 Arts. 90 & 92 of the Revised Penal Code provide as follows:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
Art. 90. Prescription of crime. 'Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen years.
Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in five years.
The crime of libel or other similar offenses shall prescribe in one year.
The crime of oral defamation and slander by deed shall prescribe in six months.
Light offenses prescribe in two months.
Art. 92. When and how penalties prescribe. 'The penalties imposed by final sentence prescribe as follows:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
1. Death and reclusion perpetua, in twenty years;chanroblesvirtuallawlibrary
2. Other afflictive penalties, in fifteen years;chanroblesvirtuallawlibrary
3. Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which prescribes in five years;chanroblesvirtuallawlibrary
4. Light penalties, in one year.
See also Act No. 3326, as amended.
27 'Art. 70 [Revised Penal Code]. x x x.
Notwithstanding the provisions of the rule next preceding, the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period.
Such maximum period shall in no case exceed forty years.
In applying the provisions of this rule the duration of perpetual penalties (pena perpetua) shall be computed at thirty years.
28 'Sec. 7. Prohibited Acts and Transactions. x x x.
These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b); (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply.
29 Ochagabia v. Court of Appeals, 364 Phil. 233, March 11, 1999; Peales v. IAC, 229 Phil. 245, October 27, 1986.
30 Order of R. Telegraphers v. Railway Express Agency, Inc., 321 US 342 (1944); Alcorn v. City of Baton Rouge, 2004 WL 3016015, December 30, 2004.
31 Memorandum for Respondents, pp. 9-10; rollo, pp. 399-400.
32 Modesty aside, in my nearly ten (10) years in this Court, I have disposed of about a thousand cases in full-length ponencias and countless cases by way of unsigned minute or extended Resolutions. This does not include the thousands of other cases, assigned to other members of the Court, in which I actively took part during their deliberations. In all honesty, I must admit that I cannot with certainty recall the details of the facts and issues in each of these cases, especially in the earlier ones.
33 JMM Promotion and Management, Inc. v. Court of Appeals, 329 Phil. 87, August 5, 1996.
34 Bullock v. Carver, 910 F. Supp 551, 1995.
35 Art. 1149, Civil Code.
36 Rule 15.03, Code of Professional Responsibility:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.
37 'Sec. 5. Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where
x x x
(b) The judge previously served as lawyer or was a material witness in the matter in controversy;
x x x
(d) The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein;
x x x
[Rule 3.12 of Canon 3 of the old Code of Judicial Conduct.]
38 AM No. 03-05-01-SC, promulgated on April 27, 2004 and effective June 1, 2004.
39 In re Sofaer, 728 A2d 625, April 22, 1999.
40 Brown v. District of Columbia Board of Zoning Adjustment, 486 A2d 37, December 21, 1984.
41 Ibid. (citing Developments in the Law: Conflicts of Interest, 94 Harv.L.Rev. 1244, 1428-30 [1981]).
42 Ibid.
43 Legarda v. Savellano, 158 SCRA 194, February 26, 1988, per Yap, J. (later CJ).
