EN BANC
ALEJANDRO ESTRADA,
Complainant,
A.M.
No.
P-02-1651
(formerly OCA
I.P.I.
No. 00-1021-P)
August 4, 2003
-versus-
SOLEDAD S.
ESCRITOR,
Respondent.
SEPARATE OPINION[*]
BELLOSILLO,
J.:
Two roads
diverged
in a wood, and I
I took the one less
traveled by
And that has
made all the difference.
- Robert Frost,
"The Road Not Taken"
With due respect to my
very gracious and distinguished colleagues, Mme. Justice Consuelo
Ynares-Santiago
and Mr. Justice Antonio T. Carpio, I beg to disagree with the views
espoused
by them. This is an exceptional case calling for an extraordinary
solution,
hence, the wise foreboding "not to go where the path leads; rather, go
where there is no path, and blaze a trail!"
Indeed, it would have
been too easy and convenient — for those who are not familiar with the
whole story of this case — to conclude at first blush that immorality
is
present and penalty is its just reward; for the fabulous fans of the
tide,
their inference would not have had any better foundation. But in the
proper
context in which the events complained of transpired, we cannot avoid
being
drawn to the conclusion that respondent Soledad S. Escritor should be
absolved
of the administrative charge against her for there is absolutely
nothing
from her actuations that would constitute disgraceful or immoral
conduct.cralaw:red
Contrary to some impressions,
the core of complainant's factual allegations occurred long before
respondent
joined the judiciary in 1999. She was a widow capacitated to marry when
she was appointed court interpreter. Her status as "separada" who had
been
faithfully, devotedly and peacefully taking good care of her family —
her
partner and their twenty-two (22) year old son — was sanctified as
early
as 1991 by the Jehovah's Witnesses, the religious group to which she
and
her family belonged, a period of almost ten 10 years before she was
employed
as court interpreter and before the instant complaint against her was
filed
in the year 2000. Indeed, in light of these facts, what better
institution
is there to judge her morality than her own church; what business does
the government have to judge her conduct that is not criminal in nature
nor destructive of her efficiency in the service? This is the pith and
soul of what may be referred to as "a lonely voice in the wilderness."
For emphasis, respondent
was already a widow when she joined the judiciary in 1999 as court
interpreter
of RTC-Br. 253, Las Piñas City. At that time she was legally
free
to marry her partner of more than twenty (20) years, one Feliciano D.
Quilapio
Jr., who has been her family ever since her husband Joselito V. de
Torres,
now deceased, abandoned her for another woman in 1979. Unfortunately it
is Feliciano who remains incapacitated to exchange vows with respondent
since his wife from whom he had been separated de facto even before he
and Soledad fell in love with each other, is still alive, and their
marriage
subsisting in the cold eyes of the law. These legal complications
however
vanished in the stream of care, understanding and love as they bore
their
first and only child, now twenty-two (22) years of age, in a family
that
each never had in their past marriages.cralaw:red
Respondent and her de
facto husband belong to the church known as Jehovah's Witnesses.
According
to their congregation, the informal conjugal partnership between them
has
been characterized by faithfulness and devotion to each other for more
than two (2) decades. On 28 July 1991, with the proper inspiration and
guidance of their spiritual leaders in Atimonan, Quezon, where they
were
then residing before their transfer to Metro Manila, Soledad and
Feliciano
voluntarily executed a document called "Declaration Pledging
Faithfulness,"
conformably with their religious practice and with the sanction of
their
respected elders in the Jehovah's Witnesses who acted willingly as
their
witnesses. In this document they confirmed the presence of legal
impediments
to their marrying each other but nonetheless promised to remain loyal
and
committed to one another at all times as they sought all avenues to
obtain
legal recognition of their union by civil authorities.[1]
As the record also shows,
the "Declaration Pledging Faithfulness" was issued only after an
exhaustive
investigation of the personal circumstances of respondent and her
partner
Feliciano while they were still residents of Atimonan, Quezon,
approximately
more than two hundred (200) kilometers away from Las Piñas City
where respondent was eventually employed. The religious document was
not
given out perfunctorily and indiscriminately. It was executed in their
favor and released to them only after some ten (10) years of faithful
and
uneventful cohabitation, as well as close monitoring and observation,
and
long before the instant complaint was filed.cralaw:red
On 22 August 2000 respondent
was charged with the administrative offense of "Disgraceful and Immoral
Conduct," a grave offense under the Omnibus Civil Service Rules and
Regulation,
by a total stranger in her life and place of work. Complainant is a
resident
of Bacoor, Cavite, while respondent's place of work is in Las
Piñas
City. Quite obviously, the sudden spark of "moral conscience" on the
part
of complainant Alejandro Estrada was stage-managed by an "unseen hand"
against whom respondent had earlier filed an administrative complaint;
hitting back, in other words.chanrobles virtual law library
A total outsider and
a mere kibitzer in the "war" between respondent and the "unseen hand,"
complainant confessed that he had nothing personal against respondent
whom
he did not even know, much less acquainted with, but simply wanted
allegedly
to protect the court from the embarrassment of having to "employ a
person
of questionable moral standards." Significantly, while accusing her of
disgraceful and immoral conduct, complainant admitted that respondent
was
a "decent woman."[2]
All told, the accusation is a fiddle and a ruse meant to impress all
and
sundry into believing that strangers and people in general have become
"moral crusaders without compassion" — a simply silly thought in the
midst
of awry moral priorities and rampant rent-seeking incredibly tolerated
in our society. The succeeding paragraph apparently shows the bias and
prejudice of respondent's presiding judge against her.cralaw:red
On 9 October 2000 respondent
moved for the inhibition of the presiding judge of RTC-Br. 253, Las
Piñas
City, whom she accused of partiality due to the administrative
complaint
she had filed against him with the Office of the Court Administrator.
In
her perception, complainant Estrada was only a dummy of her presiding
judge
who, quite interestingly, was himself the subject of two (2)
administrative
cases for "acts of serious impropriety unbecoming a judge"[3]
and for "gross ignorance of procedural law and unreasonable delay in
the
issuance of an order for the execution of a civil judgment."[4]
But the presiding judge denied the motion for his inhibition reasoning
out that the mere filing of an administrative complaint against him by
respondent did not disqualify him from hearing the case.cralaw:red
On 12 October 2000 respondent
was able to confront her accuser as their respective testimonies were
taken
one after the other. Curiously, the presiding judge volunteered to act
as counsel, as he did, for Soledad Escritor when the latter manifested
that she had no lawyer who could take her direct testimony, (a
seemingly
improper procedure considering that he is the respondent in the other
administrative
case filed by respondent herein against him), thus leaving to his
discretion
the details of respondent's defense that went on record. Respondent
judge
in fact propounded the direct questions on respondent Escritor.cralaw:red
On 7 November 2000 the
presiding judge endorsed the complaint along with respondent's answer
thereto
and the transcript of the initial proceedings to Executive Judge Manuel
B. Fernandez Jr. of RTC, Las Piñas City, who on 13 November 2000
in turn transmitted the records to the Office of the Court
Administrator
for proper disposition.cralaw:red
On 17 July 2001 we ordered
respondent Escritor to comment on the letter-complaint of Estrada,
which
she promptly did. On 22 January 2002 Executive Judge Bonifacio Sanz
Maceda,
RTC, Las Piñas City, was directed by the Court Administrator to
investigate the letter-complaint and to submit his report and
recommendation
thereon within sixty (60) days from receipt of the records.cralaw:red
The parties presented
their respective witnesses and documents on three (3) hearing dates
where
the offer of evidence apparently revolved around judge Maceda's
formulation
of the issue, i.e., whether to exact from respondent Escritor the moral
standards of the Catholic faith in determining her administrative
responsibility
when she is a member of the Jehovah's Witnesses.[5]
In the investigation a quo, respondent proved the due execution and
authenticity
of the "Declaration Pledging Faithfulness."
On 1 July 2002 Judge
Maceda rendered his Report and Recommendation absolving respondent of
the
charge of immorality on the ground that her relationship has been
well-accepted
by the religious sect to which she and her partner adhered.cralaw:red
Indeed, it is not quite
possible to state with precision and fix an inflexible standard for the
administrative offense of disgraceful and immoral conduct, or to
specify
the moral delinquency and obliquity that should render employees of the
judiciary unworthy of the public trust. Immorality covers a multitude
of
sins and it may be doubted whether there are in the entire civil
service
many persons so saintly as never to have done any act which is
disapproved
by the prevailing mores of our society.[6]
Truly, while in the opinion of many, laziness, gluttony, vanity,
selfishness,
avarice and cowardice constitute in themselves immoral conduct, moral
guardians
get around or avoid punishing them tangibly.cralaw:red
To find merit in a charge
of disgraceful and immoral conduct is therefore a sensitive task,
especially
so when considered against the gravity of the offense and penalty
attached
to it by law[7]
together with the social consequence of ascribing a "badge of infamy,"
so to speak, that disqualifies the respondent from any further
employment,
including prospects of private employment, which stamps the stigma of
official
defamation of character.[8]
To say the least, we must be careful when delineating the fine line
separating
the simply obnoxious or unconventional behavior from the genuinely
actionable
conduct meriting administrative discipline.chanrobles virtual law library
"Disgraceful and immoral
conduct" is never considered in the abstract but always in the context
of conduct that is hostile to the welfare of a particular profession or
the specific governmental position to which the alleged disgraceful and
immoral employee belongs.[9]
To some degree the determination of disgracefulness and immorality must
depend upon the nature of the acts, the circumspection or notoriety
with
which they are performed and the atmosphere of the community, i.e., the
standards of the general public and not some higher standard,[10]
in which they take place.[11]
As explained in Morrison v. State Board of Education:
By interpreting these
broad terms to apply to the employee's performance on the job, the
decisions
x x x give content to language which otherwise would be too
sweeping to be meaningful. Terms such as "immoral or unprofessional
conduct"
or "moral turpitude" stretch over so wide a range that they embrace an
unlimited area of conduct. In using them the Legislature surely did not
mean to endow the employing agency with the power to dismiss any
employee
whose personal, private conduct incurred its disapproval. Hence the
courts
have consistently related the terms to the issue of whether, when
applied
to the performance of the employee on the job, the employee has
disqualified
himself.[12]
This understanding is
crucial because our jurisprudence defines disgraceful and immoral
conduct
as "that which is willful, flagrant, or shameless, and which shows a
moral
indifference to the opinion of the good and respectable members of the
community,"[13]
none of which is true in this case, and the Constitution recognizes our
multi-cultural experience and decrees a principle of unity in
diversity.
As the definition poignantly suggests, a charge of disgraceful and
immoral
conduct does not depend solely upon the character of the protested act
or series of acts but must include a holistic evaluation of the
circumstances
obtaining in each case.[14]
Even this Court's oft-repeated
justification for penalizing disgraceful and immoral conduct does not
treat
the questioned action in isolation nor chastises it for its own sake,
but
instead refers to the tendency of the allegedly disgraceful and immoral
conduct to discredit either the employee himself or the service.
Verily,
in appropriate cases, private morality can be isolated from the
circumscription
of the public sphere where respondent's moral lapses do not prove
prejudicial
to the service.[15]
Given the foregoing
standard by which to judge a particular conduct as disgraceful and
immoral,
Executive Judge Bonifacio Sanz Maceda of RTC, Las Piñas City, as
investigating Judge was correct when he reduced the issue in this case
to whether the moral standards of the Catholic faith, to which a great
majority of us belongs, must be exacted of respondent in determining
her
administrative responsibility when she is a member of the Jehovah's
Witnesses,
and recommended the absolution of respondent of the charge of
disgraceful
and immoral conduct on the ground that her relationship has been
well-accepted
by the religious sect to which she and her partner adhered. But even if
we do apply the standards of the Catholic faith to non-Catholics,
although
we should not, Judge Maceda's recommendation to free respondent from
any
culpability is clearly justified as respondent's actuation is not, nor
is it even hinted at that it is, prejudicial to the service.cralaw:red
None can honestly posit,
much less assert, that respondent is guilty of disgraceful and immoral
conduct in the sense that she had done something willful, flagrant, or
shameless, and which shows a moral indifference to the opinion of the
good
and respectable members of the community in a manner prejudicial to the
service. For one, punishing Soledad Escritor by any kind of penalty
will
not solve or prove anything because she stands to be harassed and
penalized
again and again every time somebody dislikes her face, as her situation
will inevitably continue until we direct them to break up their
church-sanctioned
relationship, which we are not prepared to do for being cruel and
unusual.cralaw:red
The alternative is not
any better. This Court might be dissolving a strong and peaceful family
of more than two (2) decades and, in the extreme case, deprive
respondent
of livelihood from which to feed herself and her family. At bottom, if
we are to uphold the complaint, we will be breaking up an otherwise
ideal
union of two (2) individuals who have managed to stay together as
husband
and wife for more than twenty (20) years and at peace with the world as
solemnly attested to by the Jehovah's Witnesses to which they belong.
And
what happens to their son born of their happy union? Certainly, it will
adversely affect him in his interaction with his friends and neighbors.
This, in all conscience, Christians cannot countenance.chanrobles virtual law library
Moreover, there is simply
nothing disgraceful and immoral in respondent's decision to pursue her
happiness, and perhaps security, after her lawful husband abandoned her
for another woman. She did not forsake any child nor desert her
household.
It was her philandering husband who left her for another woman. To
paraphrase
Judge Learned Hand, Soledad was not obligated to live in complete
celibacy
otherwise forfeit her claim to good moral character.[16]
There ought to be a better order of moral priorities to avoid the
perceived
fixation on sex where a person may have impeccable sexual standards -
or
indeed be celibate - and yet steal.cralaw:red
To be sure, there are
matters that are best left to the conscience and the moral beliefs of
an
individual, and matters of which public law may take cognizance.
Obviously,
while the latter pertains to matters affecting society and public life,
not every "irregular union" constitutes immorality that is actionable
under
administrative law. Consider this: a Catholic who obtains a decree of
nullity
from his church would be available to remarry by the norms and precepts
of his faith and moral standards. Before civil law, however, his
marriage
would be bigamous. The second union may be categorized as a crime, but
one would hardly be justified in classifying it as "immoral conduct"
because
the moral standards he lives by — those of his faith - precisely permit
him the second marriage. To hold that the second union is immoral would
be to bind him to follow moral precepts divergent from those imposed
upon
him by his faith, contrary to the freedom of conscience and practice of
his religion guaranteed under the Constitution.cralaw:red
That is why, although
some years back society decried solo parenthood and de facto separated
couples as an affront to the conventional wisdom of a model family,
recent
social justice legislation has compassionately redefined the concept of
family to include single mothers and their children regardless of the
mother's
civil status, otherwise no single parent would be employed by the
government
service, and that would be discriminatory, if not to say,
unconstitutional![17]
In the opinion of a Philippine Daily Inquirer columnist on the
standards
of the general public of what is moral and decent,[18]
the humane and moral response to dysfunctional marriages is that:
The quality or authenticity
of a family, or a marriage for that matter, does not lie in its legal
status
alone, or on the united front that spouses present before polite
society.
Rather, it lies in the relationship between spouses and between them
and
their children and other members of the family. If there is genuine
caring
and concern, respect and fondness among them, then it is a family in
the
fullest sense of the word. But if there is only pretense, indifference
and hypocrisy, or worse, cruelty and pain, then that marriage is better
off ended, the family better off liberated.[19]
It must be emphasized
that nothing was presented in the investigation a quo to prove that
respondent
lived her life in a scandalous or disgraceful manner, or that by any
means
she has affected her standing in the community.[20]
Certainly there was no intention on her part to embarrass the judiciary
since the relationship started in 1980 and blessed by ministers and
elders
of the Jehovah's Witnesses in 1991 in Atimonan, Quezon, after
establishing
a faithful partnership of more than ten (10) years.chanrobles virtual law library
Although a verified
complaint consisting of hearsay allegations could be the basis of an
administrative
case,[21]
it begs explanation why only such a weak charge from a total stranger
could
be mustered against respondent for her allegedly immoral relationship
spanning
more than twenty (20) years. Let it be further underscored that the
legal
wife of her partner Feliciano, indisputably the person most concerned,
or any other individual from Atimonan, Quezon, or in Las Piñas
City
where respondent found employment, has not sounded any objection to the
relationship. This fact clearly shows that respondent has not
jeopardized
her honor, nor that of any citizen in the community.cralaw:red
Indeed, if respondent's
conduct were truly willful, flagrant, shameless, and immoral in the
view
of the good and respectable members of the community, there is no sense
why her co-employees themselves never complained against her conduct.
Their
silence genuinely indicates not only the absence of outrage and scandal
within the Hall of Justice of Las Piñas City arising from
respondent's
relationship with Feliciano D. Quilapio Jr., but in all probability
also
the community's acceptance, if not respect, for her true faith and
steadfast
commitment to her partner and family of more than two (2) decades.cralaw:red
There is no cogent reason
to justify any action that will disrupt or break apart the peaceful
existence
of the family founded by Soledad and her other half. The record does
not
show that they have caused discomfiture and embarrassment to the
judiciary
nor that the relationship ever compromised her duties as a court
interpreter.
Her efficiency in her job has never been doubted for any reason
attributable
to the union with her informal partner. Certainly we cannot describe
the
concern and love she has for so long exhibited as a willful, flagrant
and
shameless conduct.cralaw:red
Without doubt, too,
the genuine sensitivity and overwhelming solicitude of respondent to
the
demands of morality and righteousness, and "the opinion of the good and
respectable members of the community," are manifested by her attempt to
seek the clarification and guidance of her moral mentors - the elders
of
the church to which she and her partner belong; they who in 1991 ruled
that they did not find anything immoral about the union. Precisely, in
the "Declaration Pledging Faithfulness" before revered elders of the
Jehovah's
Witnesses, respondent and her partner promised to secure the formal
approval
of civil authorities and to stay devoted to each other thus:
I, Soledad
Escritor, do here declare that I have accepted Feliciano D. Quilapio,
Jr.
as my mate in marital relationship; that I have done all within my
ability
to obtain legal recognition of this relationship by the proper public
authorities
and that it is because of having been unable to do so that I therefore
make this public declaration pledging faithfulness in this marital
relationship.
I recognize this
relationship
as a binding tie before "Jehovah" God and before all persons to be held
to and honored in full accord with the principles of God's Word. I will
continue to seek the means to obtain legal recognition of this
relationship
by the civil authorities and if at any future time a change in
circumstances
makes this possible, I promise to legalize this union.chanrobles virtual law library
It bears stressing that
the "Declaration Pledging Faithfulness," a duly executed and genuine
document,
was not perfunctorily or indiscriminately issued; it was only after
some
ten (10) years of authentic family life and an exhaustive investigation
and evaluation of the relationship of the parties thereto. Clearly, the
act was done long before the instant complaint was filed and definitely
with no intention to deceive anyone as to the character and motive of
their
union. While we do not encourage such a union, we cannot on the other
hand
totally ignore a fact of life.
The Jehovah's Witnesses
is one of the respected congregations of Christians in the country. It
counts among its members upright and productive citizens whose views on
morality cannot be disregarded. Consequently when elders of this
religion
affixed their imprimatur on the "Declaration Pledging Faithfulness"
they
validated the moral legitimacy of respondent's informal conjugal
partnership.
Of course, first and foremost, the appropriate judge of respondent's
morality
is her own church and this task cannot be assigned to any other
institution
in society if any religious congregation is to have any purpose at all.cralaw:red
We cannot ignore the
religious sentiment of the Jehovah's Witnesses which in any event falls
squarely within society's interest in a functional family. This Court's
respect for the positive traditions of the Jehovah's Witnesses stands
on
equal footing with our deference to a Muslim judge's prerogative to
have
more than one wife in exceptional cases provided he can deal with them
with equal companionship and just treatment as enjoined by Islamic law[22]
as with any other legitimate social and cultural practices.cralaw:red
Verily, this is not
the first time that this Court is dismissing a charge of disgraceful
and
immoral conduct on the ground of distinctive bona fide beliefs and
practices.
In Sulu Islamic Association of Masjid Lambayong v. Malik we dismissed
the
charge of immorality against a Tausug judge for engaging in an
adulterous
relationship with another woman with whom he had three children because
"it [was] not 'immoral' by Muslim standards for Judge Malik to marry a
second time while his first marriage [existed]."[23]
In De Dios v. Alejo[24]
we quoted with approval a decision of the then Board of Civil Service
to
extend compassion to a situation analogous to the instant case:
Of equal pertinence
to the case at bar, is the decision of the Board of Civil Service in
Administrative
Case No. III x x x promulgated on July 30, 1941. The Board
of Civil Service Appeal ruled as follows: "x x x The
complainant
in this case was a total outsider, and the legal wife, who are the
persons
most concerned, have not vowed any objection to the situation. This
fact,
while not significant by itself, reveals that the respondent has not
jeopardized
the honor of any third person. This Board is aware that it is not an
easy
task to determine whether a certain improper conduct constitutes
immoral
conduct within the meaning of the Civil Service Rules and Regulations
to
warrant removal from the service; but in this particular case, this
Board
is fully convinced that the respondent in taking another woman — was
impelled
by no other than an honest and decent intention to overcome his
misfortune
and to live anew to take his natural place among his fellowmen. It
would
be in violation of all human conventions — cruel to say the least — to
require the respondent to live with his unfaithful spouse. The
respondent
is a mere principal clerk — a position which does not exercise a moral
influence in the community x x x It is pertinent to state
here
that the efficiency of the respondent in the discharge of his duties is
not questioned x x x In this connection, we quote the words
of Governor General Theodore Roosevelt in the case of Municipal
Treasurer
Juan T. Soriano who was similarly charged with immorality way back in
1932:
The undersigned x x x would be inclined to favor dropping
this
case entirely and restoring him to his former positions. There are
involved
in the case six people beside himself — his legal wife, the woman with
whom he is living, and four children. It does not appear that any of
these
people who are most concerned of all have voiced an objection to the
situation
as it existed for ten (10) years nor that they would be in anyway
benefited
by the action proposed herein. In fact, such action would probably work
great hardship on most of them.[25]chanrobles virtual law library
The cases where the
charge of disgraceful and immoral conduct was sufficiently proved by
evidence
cannot be controlling since the instant case differs from them in
several
respects. In Marquez v. Clores-Ramos,[26]
Bucatcat v. Bucatcat[27]
and Maguad v. De Guzman[28]
for example, the illicit relationship in question clearly caused furor
within the community whose moral sensibilities were offended as shown
by
the social standing and manifest interest of the complainants therein.
In the instant case, all we have is the word of a kibitzer who could
not
even get the support of respondent's co-employees to prove that
Soledad's
actions indeed caused scandal in the office and in the community at
large.cralaw:red
Furthermore, unlike
the relationship between respondent and her mate, the informal
partnership
in Clores-Ramos, Bucatcat and De Guzman blossomed while the parties
concerned
were already employees of the trial court, and worse, without the
benefit
of the same respect showed by respondent for "the opinion of the good
and
respectable members of the community" since the guilty liaisons therein
were fueled only by passion for the paramour. Quite obviously, as
demonstrated
by the fact that Soledad was admitted into the service and allowed to
assume
office as court interpreter despite her relationship with Feliciano D.
Quilapio Jr., the judiciary believed in the innocence of her domestic
arrangement
for more than twenty (20) years and fully accepted her private morality.cralaw:red
The human side of this
case should not be totally ignored because respondent's present
position
is not one which has caused scandal to anyone truly concerned with
public
morality. The instant case may therefore be viewed and appreciated with
human understanding as indeed it is more attuned to the interest of
society
and public service that she be able to fulfill her obligation of
maternal
support and care for her son and true family than for us to tear apart
an otherwise ideal union of two loving and respectable individuals.cralaw:red
While this Court is
aware of the not-so-easy and clear-cut task of determining whether
certain
improper conduct would constitute disgraceful immorality and warrant
administrative
discipline, to be sure, in this particular case we are wholly convinced
that respondent in living with her present partner to foster a
wholesome
family was impelled by only the honest and decent intention to overcome
her previous marital misfortune and to take anew her natural place in a
pleasant and wholesome community. Without fear of contradiction, it
would
be violating godly laws of charity and love and, to say the least,
embracing
cruelty and hypocrisy, if we should require respondent to abandon her
faithful
spouse and loving son, or penalize her for treasuring the unity of her
family as she would keep her work, for the punctilious satisfaction of
a blind world.[29]
More enlightened jurisdictions
would treat adverse personnel actions, i.e., dismissal, suspension,
fine
or other penalties, arising from a charge of immoral conduct with due
consideration
of the constitutional rights of due process and privacy. We may also
apply
the same standard in the instant case if only to accord ample
recognition
to the principle that a civil servant does not surrender his
constitutional
rights once he assumes public service, hence, he may not be dismissed
from
his job for a constitutionally impermissible reason.[30]
Mindel v. Civil Service
Commission,[31]
for example, involves a post office clerk who was removed from the
service
for "immoral conduct" because he had lived with a young lady without
the
benefit of marriage. The federal court ordered his reinstatement since
"Mindel's termination was arbitrary and capricious, and therefore
violated
due process x x x and his right to privacy."[32]
It was observed that Mindel was employed in a most insensitive position
as postal clerk and his alleged conduct was discreet, not notorious,
much
less scandalous.[33]
The federal court held finally that even if Mindel's conduct can be
characterized
as "immoral," he cannot constitutionally be penalized on this ground
absent
"a rational nexus, between his conduct and his duties as a postal
clerk.
A reviewing court must at least be able to discern some reasonably
foreseeable
specific connection between an employee's potentially embarrassing
conduct
and the efficiency of the service."[34]chanrobles virtual law library
Clearly, "immorality"
as a category of offense for the dismissal of a public servant or a
judicial
employee should not be construed as any violation of moral
prescriptions.
Otherwise, this tack would only embroil this Court in the eternal
debate
on divergent moral theories and systems. For a public servant, the
pivotal
question in determining administrative culpability ought to be whether
the challenged conduct was ultimately prejudicial to public service. We
cannot snoop into bedrooms and peer under bed covers without running
afoul
of every person's constitutionally protected individuality. Quite
interestingly,
in American jurisprudence, conduct affecting one's personal character
has
been excluded from the ambit of actionable behavior. It stressed: "But
conduct amounting to mere irregularity or merely affecting one's
character
as a private individual is not usually covered by the term
'malconduct.'"[35]
We agree with the ponente,
Mr. Justice Reynato S. Puno, that we may resolve this case on the basis
of the standards of religious freedom. Nonetheless, this is not the
threshold
issue. Religious freedom may constitute Escritor's defense in avoidance
but must she in the first place get around eluding an offense whose
elements
were not proved?
Respondent is charged
with Disgraceful and Immoral Conduct. The primary question should
therefore
be: Does the evidence show both disgrace and immorality at the same
time?
As has been carefully explained above, one without the other does not
constitute
the transgression. The plain significance of the words comprising
Disgraceful
and Immoral Conduct supports this proposition. Absent any evidence
confirming
the presence of disgrace and immorality simultaneously, the wrongdoing
was not committed and concomitantly there is no occasion to delve
heavily
on religious freedom. The situation is not unlike a criminal case of
homicide
self-defense need not be invoked and examined until there is proof that
somebody has been killed.cralaw:red
If we go by the definition
of disgrace, then we would be requiring evidence to prove a question of
fact, i.e.; "that which is willful, flagrant, or shameless, and which
shows
a moral indifference to the opinion of the good and respectable members
of the community." Unfortunately for complainant, no evidence has been
presented on this score; hence, no administrative misconduct of
Disgraceful
and Immoral Conduct may be found. Ei incumbit probatio, qui dicit, non
qui negat. He who asserts, not he who denies, must prove. Is respondent
now called upon to prove what complainant failed to prove? This is
unusually
and awkwardly unprocedural!chanrobles virtual law library
In fact, the reverse
is true: No disgraceful conduct may be inferred from the actuations of
respondent since even her church or religion sanctifies her
relationship;
complainant himself admits that Escritor is a decent woman; no question
has been raised on her efficiency in the service; and community
standards
hive been changing as shown by the Solo Parents' Welfare Act of 2006
and
the attitude of people who shape public opinion.cralaw:red
We also cannot deduce
immorality from the "unusual" set-up in the family of Escritor. This I
say because of Sec. 3, Art. XV, of the Constitution which provides,
"The
State shall defend x x x [t]he right of spouses to found a
family in accordance with their religious convictions and the demands
of
responsible parenthood x x x" This rule is broad enough to
include de facto family relations since it would be absurd to deny the
free exercise of religious convictions by virtue of the existence or
non-existence
of marriage. Besides, such "atypical" family organization is not
immoral
per se considering the leeway granted to Moros in Sulu Islamic
Association
of Masjid Lambayong v. Malik, and in PD 1083, for surely if the
arrangement
is itself heinous no law could be validly enacted to endorse it.cralaw:red
More than religious
freedom, I look with partiality to the rights of due process and
privacy.
Law in general reflects a particular morality or ideology, and so I
would
rather not foist upon the populace such criteria as "compelling state
interest,"
but more, the reasonably foreseeable specific connection between an
employee's
potentially embarrassing conduct and the efficiency of the service.
This
is a fairly objective standard than the compelling interest standard
involved
in religious freedom.cralaw:red
Verily, if we are to
remand the instant case to the Office of the Court Administrator, we
must
also configure the rights of due process and privacy into the equation.
By doing so, we can make a difference not only for those who object out
of religious scruples but also for those who choose to live a
meaningful
life even if it means sometimes breaking "oppressive" and "antiquated"
application of laws but are otherwise efficient and effective workers.
As is often said, when we have learned to reverence each individual's
liberty
as we do our tangible wealth, we then shall have our renaissance.cralaw:red
Mr. Justice Antonio
T. Carpio is candid enough to admit that Escritor is not liable for
Disgraceful
and Immoral Conduct. I am grateful that he took account of the two (2)
words that make up the offense, i.e., disgraceful and immoral, to
decide
the way he did. But there can be no comfort with the rest of his
position
to find Escritor guilty of Conduct Prejudicial to the Best Interest of
the Service allegedly because she is continuously engaging in
concubinage
in violation of the Revised Penal Code. It is time to tame the tenacity
to uncover fault out of this poor woman's conduct.chanrobles virtual law library
We may admit that there
is Conduct Prejudicial to the Best Interest of the Service where the
efficiency,
integrity, and credibility of the civil service or of the
administration
of justice are adversely affected. I however do not discern any
evidence
of these harmful consequences. Verily, the opposite is again true:
Complainant
admitted that respondent Escritor is a decent woman and has not caused
embarrassment to the judiciary. On the other hand, if we penalize
respondent,
force her family to break up and remove her from her job, it is then
that
we will prejudice government service.cralaw:red
Certainly, we are not
jeopardizing the ability of government to execute the laws faithfully
and
credibly by allowing respondent to continue with her present family
relations.
In the first place, she cannot be said to be breaking the proscriptions
of the Revised Penal Code since there is no conviction by final
judgment
against her for concubinage; as it is, she is entitled to the
presumption
of innocence. Furthermore, Art. 344 of the Revised Penal Code itself
offers
the justification for the government not to prosecute and persecute
Escritor
as this law requires a complaint from the offended spouses for any
action
thereon to prosper. In the absence of such complaint as in the case at
bar, we cannot conclude that the government is being partial to
respondent
for not enforcing the pertinent penal provisions against her.chanrobles virtual law library
It is more than a matter
of sympathy; it is a clear dose of justice indeed to conclude that
respondent
did not fail to live up to her ethical obligations; in conscience and
in
law, this Court should be the last, and never, to cast the stone and
stamp
the badge of infamy upon her legitimate desire for personal security
and
safety that in reality has bothered no one, least of all, our own
judicial
institution.cralaw:red
WHEREFORE, I do not
agree with the views expressed by Mme. Justice Consuelo Ynares-Santiago
but concur with the ponencia of Mr. Justice Puno in the result.
____________________________
Endnotes:
BELLOSILLO,
J.chanrobles virtual law library
[*]
Originally a Dissenting Opinion to the ponencia of Mme. Justice
Consuelo
Ynares Santiago hence the tenor of this Separate Opinion.
[1]
Record, p. 15.
[2]
TSN, 12 October 2000, p. 7; Rollo, p. 23.
[3]
Alumbres v. Caoibes, A.M. No. RTJ-99-1431, 23 January 2002.
[4]
Spouses Monterola v. Caoibes, A.M. No. RTJ-01-1620, 18 March 2002.
[5]
Hearings were held on 8 March 2002, 15 April 2002 and 29 May 2002; see
Report and Recommendation, p. 3.
[6]
Norton v. Macy, 417 F.2d 1161 (1969).
[7]
The Omnibus Civil Service Rules and Regulations classifies "disgraceful
and immoral conduct" as a grave offense and imposes the penalty of
suspension
from office for six (6) months and one (1) day to one (1) year in the
first
instance.chanrobles virtual law library
[8]
Norton v. Macy, supra at 1164.chanrobles virtual law library
[9]
Morrison v. State Board of Education, 461 P.2d 375 (1969).
[10]
Risner v. State Personnel Board of Review, 381 N.E.2d 346, 350 (1978).
[11]
Major v. Hampton, 413 F. Supp. 66 (1976).chanrobles virtual law library
[12]
Morrison v. State Board of Education, supra at 382.chanrobles virtual law library
[13]
Obusan v. Obusan, A.C. No. 1392, 2 April 1984, 128 SCRA 485, 487; Narag
v. Narag, A.C. No. 3405, 29 June 1998, 291 SCRA 451.
[14]
Madredijo v. Loyao, A.M. No. RTJ-98-1424, 13 October 1999, 316 SCRA
544;
Santos v. National Labor Relations Commission, G.R. No. 115795, 6 March
1998, 287 SCRA 117.
[15]
De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA 354; Burgos
v. Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.
[16]
Schmidt v. United States, 177 F.2d 450, 451 (1949).chanrobles virtual law library
[17]
Rep. Act No. 8972 (2000). This law is popularly known as "Solo Parents'
Welfare Act of 2000."
[18]
See the "2002 ISSP Survey on the Family" of the Social Weather Station
which concluded that "[o]nly 28% agree, whereas 58% disagree, that 'It
is better to have a bad marriage than no marriage at all"' at
http://www.sws.org.phchanrobles virtual law library
[19]
"Welcome Relief for Couples, Courts," At Large by Columnist Rina
Jimenez-David,
19 January 2003 issue of the Philippine Daily Inquirer.
[20]
Burgos v. Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.chanrobles virtual law library
[21]
Celis v. Marquez, A.M. No. R-156-P, 27 August 1985, 138 SCRA 256 citing
Anonymous Complaint v. Araula, A. M. No. 1571-CFI, 7 February 1978, 81
SCRA 483; Bernardo v. Fabros, A.M. No. MTJ-99-1189, 12 May 1999, 307
SCRA
28.chanrobles virtual law library
[22]
See Pres. Decree No. 1083 (1977), Art. 27. This law is entitled "A
Decree
to Ordain and Promulgate a Code Recognizing the System of Filipino
Muslim
Laws, Codifying Muslim Personal Laws, and Providing for its
Administration
and for Other Purposes."chanrobles virtual law library
[23]
A.M. No. MTJ-92-691, 10 September 1993, 226 SCRA 193, 199.
[24]
A.M. No. P-137, 15 December 1975, 68 SCRA 354.
[25]
Id., pp. 359-360, 362.chanrobles virtual law library
[26]
A.M. No. P-96-1182, 19 July 2000, 336 SCRA 122.
[27]
A.M. No. P-93-985, 28 January 2000, 323 SCRA 578.
[28]
A.M. No. P-94-1015, 29 March 1999, 305 SCRA 469.
[29]
See Burgos v. Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.
[30]
McMahon v. Board of Selection of Town Newtown, 506 F. Supp. 537 (1981).
[31]
312 F, Supp. 485 (1970).chanrobles virtual law library
[32]
Id., p. 487.chanrobles virtual law library
[33]
Ibid.
[34]
Ibid.
[35]
63 A Am. Jur. 2d, Public Officers and Employees, Sec. 247. |