[A.C. NO. 6697 : July 25, 2006]
ZOILO ANTONIO VELEZ, Complainant, v. ATTY. LEONARD S. DE VERA, Respondent.
[Bar Matter No. 1227 : July 25, 2006]
RE: OATH-TAKING OF ATTY. LEONARD S. DE VERA, INCOMING PRESIDENT OF THE INTEGRATED BAR OF THE PHILIPPINES.
[A.M. NO. 05-5-15-SC : July 25, 2006]
IN THE MATTER OF THE REMOVAL OF ATTY. LEONARD S. DE VERA FROM THE IBP BOARD OF GOVERNORS AS EXECUTIVE VICE PRESIDENT AND GOVERNOR.
IN THE MATTER OF THE LETTER-COMPLAINT OF ATTY. LEONARD S. DE VERA DATED MAY 18, 2005 TO FORTHWITH DENY/DISAPPROVE THE IBP RESOLUTION UNJUSTLY, ILLEGALLY, ARBITRARILY, AND ABRUPTLY REMOVING HIM FROM THE BOARD OF GOVERNORS OF THE IBP FOR ABSOLUTE LACK OF BASIS AND FOR FLAGRANT DENIAL OF DUE PROCESS.
D E C I S I O N
Before Us are three consolidated cases revolving around Integrated Bar of the Philippines (IBP) Governor and Executive Vice-President (EVP) Atty. Leonard de Vera. The first pertains to a disbarment case questioning Atty. de Vera's moral fitness to remain as a member of the Philippine Bar, the second refers to Atty. de Vera's letter-request to schedule his oath taking as IBP National President, and the third case concerns the validity of his removal as Governor and EVP of the IBP by the IBP Board. The resolution of these cases will determine the national presidency of the IBP for the term 2005-2007.
A.C. No. 6697
The Office of the Bar Confidant, which this Court tasked to make an investigation, report and recommendation on subject case,1 summarized the antecedents thereof as follows:
Bar Matter No. 1227
As earlier adverted to, Bar Matter No. 1227 refers to Atty. de Vera's letter-request to this Court to schedule his oath taking as IBP National President. A.M. No. 05-5-15-SC, on the other hand, is a letter-report dated 19 May 2005 of IBP National President Jose Anselmo I. Cadiz (IBP President Cadiz) furnishing this Court with the IBP's Resolution, dated 13 May 2005, removing Atty. De Vera as member of the IBP Board and as IBP EVP, for committing acts inimical to the IBP Board and the IBP in general.2
The controversy in Bar Matter No. 1227 and A.M. No. 05-5-15-SC arose from the regular meeting of the IBP Board of Governors held on 14 January 2005. In said meeting, by 2/3 vote (6 voting in favor and 2 against), the IBP Board approved the withdrawal of the Petition filed before this Court docketed as "Integrated Bar of the Philippines, Jose Anselmo I. Cadiz, et al. v. Senate of the Philippines, et al. - Petition for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Order or Writ of Preliminary Injunction, SC-R165108." The Petition was intended to question the legality and/or constitutionality of Republic Act No. 9227, authorizing the increase in the salaries of judges and justices, and to increase filing fees.3
The two IBP Governors who opposed the said Resolution approving the withdrawal of the above-described Petition were herein respondent Governor and EVP de Vera and Governor Carlos L. Valdez.4
On 19 January 2005, IBP President Cadiz informed this Court of the decision taken by the IBP Board to withdraw the afore-mentioned Petition. Attached to his letter was a copy of the IBP Board's 14 January 2005 Resolution.5
On 15 April 2005, Bar Matter No. 1227, pertaining to Atty. de Vera's request for oathtaking as National President, was filed. The same was subsequently consolidated with A.C. No. 6697, the disbarment case filed against Atty. de Vera.6
On 22 April 2005, a plenary session was held at the 10th National IBP Convention at the CAP-Camp John Hay Convention Center, Baguio City. It was at this forum where Atty. de Vera allegedly made some untruthful statements, innuendos and blatant lies in connection with the IBP Board's Resolution to withdraw the Petition questioning the legality of Republic Act No. 9227.7
On 10 May 2005, this Court issued a Temporary Restraining Order (TRO) enjoining Atty. de Vera from assuming office as IBP National President.8
On 12 May 2005, IBP Gov. Romulo A. Rivera wrote IBP National President Cadiz a letter wherein he prayed for the removal of Atty. de Vera as member of the IBP Board for having committed acts which were inimical to the IBP Board and the IBP.9
On 13 May 2005, in the 20th Regular Meeting of the Board held at the Waterfront Hotel, Cebu City, the IBP Board, by 2/3 vote, resolved to remove Atty. de Vera as member of the IBP Board of Governors and as IBP Executive Vice President.10 Quoted hereunder is the dispositive portion of said Resolution:
On 18 May 2005, Atty. de Vera aired his sentiments to this Court by writing the then Hon. Chief Justice Hilario G. Davide, Jr. a letter captioned as "Urgent Plea to Correct a Glaring Injustice of the IBP Board of Governors; Vehement Protest to the Board Resolution Abruptly Removing Atty. Leonard de Vera from the Board of Governors in Patent Violation of Due Process; Petition to Deny/Disapprove the Completely Unjustified and Highly Arbitrary Resolution Precipitately Ousting Atty. de Vera from the Board of Governors in Less Than Twenty Four (24) Hours from Notice and Judgment Without Formal Investigation."12
In the said letter, Atty. de Vera strongly and categorically denied having committed acts inimical to the IBP and its Board. He alleged that on the basis of an unverified letter-complaint filed by IBP Governor Rivera, the IBP Board voted to expel him posthaste, without just cause and in complete disregard of even the minimum standards of due process. Pertinent portions of his letter read:
On 27 May 2005, the IBP Board responded to the 18 May 2005 letter of Atty. de Vera.14 In their Reply, the IBP Board explained to this Court that their decision to remove Atty. de Vera was based on valid grounds and was intended to protect itself from a recalcitrant member. Among the grounds cited and elucidated by the IBP Board were the following:
The IBP Board explained that Atty. de Vera's actuation during the Plenary Session was "the last straw that broke the camel's back." He committed acts inimical to the interest of the IBP Board and the IBP; hence, the IBP Board decided to remove him.
On 3 June 2005, Atty. de Vera furnished the Court with copies of resolutions and a position paper coming from various IBP Chapters all condemning his expulsion from the IBP Board and as IBP EVP.16
On 15 June 2005, IBP President Cadiz informed Chief Justice Davide that in a special meeting of the IBP Board held at the EDSA Shangri-la Plaza on 13 June 2005, the IBP Board took note of the vacancy in the position of the IBP EVP brought about by Atty. de Vera's removal. In his stead, IBP Governor Pura Angelica Y. Santiago was formally elected and declared as IBP EVP.17
On 17 June 2005, Atty. de Vera protested against the election of Atty. Santiago.18 On 20 June 2005, Atty. Santiago voluntarily relinquished the EVP position through a letter addressed to the IBP Board.19 Thus, on 25 June 2005, during its last regular meeting, the IBP Board elected a new EVP in the person of IBP Governor Jose Vicente B. Salazar to replace Atty. Santiago.
On 28 June 2005, IBP National President Cadiz, through a letter addressed to Chief Justice Davide, reported to this Court Atty. Salazar's election.20 IBP National President Cadiz also requested, among other things, that Atty. Salazar's election be approved and that he be allowed to assume as National President in the event that Atty. de Vera is disbarred or suspended from the practice of law or should his removal from the 2003-2005 Board of Governors and as EVP is approved by this Court.21 Also on 28 June 2005, Atty. de Vera protested the election of Atty. Salazar.22
In his Extended Comment23 dated 25 July 2005, Atty. de Vera maintained that there was absolutely no factual or legal basis to sustain the motion to remove him from the IBP Board because he violated no law. He argued that if the basis for his removal as EVP was based on the same grounds as his removal from the IBP Board, then his removal as EVP was likewise executed without due notice and without the least compliance with the minimum standards of due process of law.
Atty. de Vera strongly averred that, contrary to the utterly false and malicious charges filed against him, the speakers at the Plenary Session of the Baguio Convention, although undeniably impassioned and articulate, were respectful in their language and exhortations, not once undermining the stature of the IBP in general and the IBP Board of Governors in particular. He posited that speaking in disagreement with the Resolution of the Board during the Convention's Plenary Session is not a valid cause to remove or expel a duly-elected member of the IBP Board of Governors; and the decision to remove him only shows that the right to freedom of speech or the right to dissent is not recognized by the incumbent IBP Board.
Anent the charges that he accused the National President of withholding a copy of this Court's Resolution granting the withdrawal of the Petition questioning the legality of Republic Act No. 9227, Atty. de Vera avowed that he made no such remarks. As regards the election of a new IBP EVP, Atty. de Vera contended that the said election was illegal as it was contrary to the provisions of the IBP By-Laws concerning national officers, to wit:
To bolster his position, Atty. de Vera stressed that when both the President and the EVP die, resign, are removed, or are disabled, the IBP By-Laws only provides for the election of an Acting President and that no mention for an election for EVP was made. Thus, when such election for EVP occurs, such is contrary to the express provision of the IBP By-Laws.
Atty. de Vera also argued that even if he were validly removed as IBP EVP, his replacement should come from Eastern Mindanao and not from any other region, due to the Rotation Rule embodied in par. 2, Section 47, Article VII of the IBP By-Laws.
In response to Atty. de Vera's averments, the 2003-2005 IBP Board, through its counsel, submitted a Reply dated 27 January 2006 and clarified as follows:
The Court's Ruling
AC No. 6697
In his Memorandum26 dated 20 June 2005, complainant tendered the following issues for the consideration of the Court:
The disposition of the first three related issues hinges on the resolution of the fourth issue. Consequently, we will start with the last issue.
A.C. No. 6052 is not a bar to the filing of the present administrative case.
In disposing of the question of res judicata, the Bar Confidant opined:
Contrary to the findings of the Bar Confidant, Adm. Case No. 6052 entitled, "In Re: Petition to Disqualify Atty. Leonard de Vera, on Legal and Moral Grounds, From Being Elected IBP Governor for Eastern Mindanao in the May 31 IBP Election" and promulgated on 11 December 2003 does not constitute a bar to the filing of Adm. Case No. 6697. Although the parties in the present administrative case and in Adm. Case No. 6052 are identical, their capacities in these cases and the issues presented therein are not the same, thereby barring the application of res judicata.
In order that the principle of res judicata may be made to apply, four essential conditions must concur, namely: (1) the judgment sought to bar the new action must be final; (2) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) the disposition of the case must be a judgment or order on the merits, and (4) there must be between the first and second action identity of parties, identity of subject matter, and identity of causes of action.29 In the absence of any one of these elements, Atty. de Vera cannot argue res judicata in his favor.
It is noteworthy that the two administrative cases involve different subject matters and causes of action. In Adm. Case No. 6052, the subject matter was the qualification of Atty. de Vera to run as a candidate for the position of IBP Governor for Eastern Mindanao. In the present administrative complaint, the subject matter is his privilege to practice law. In the first administrative case, complainants' cause of action was Atty. de Vera's alleged violation or circumvention of the IBP By-laws. In the present administrative case, the primary cause of action is Atty. de Vera's alleged violation of lawyer's oath and the Code of Professional Responsibility.
Finally, the two administrative cases do not seek the same relief. In the first case, the complainants sought to prevent Atty. de Vera from assuming his post as IBP Governor for Eastern Mindanao. In the present case, as clarified by complainant in his Memorandum, what is being principally sought is Atty. de Vera's suspension or disbarment.
The distinctions between the two cases are far from trivial. The previous case was resolved on the basis of the parties' rights and obligations under the IBP By-laws. We held therein that Atty. de Vera cannot be disqualified from running as Regional Governor as there is nothing in the present IBP By-laws that sanctions the disqualification of candidates for IBP governors. Consequently, we stressed that the petition had no firm ground to stand on. Likewise, we held that the complainants therein were not the proper parties to bring the suit as the IBP By-laws prescribes that only nominees - which the complainants were not - can file with the IBP President a written protest against the candidate. The Court's statement, therefore, that Atty. de Vera cannot be disqualified on the ground that he was not morally fit was mere obiter dictum. Precisely, the IBP By-laws do not allow for pre-election disqualification proceedings; hence, Atty. de Vera cannot be disqualified on the basis of the administrative findings of a hearing officer of the State Bar of California suspending him from the practice of law for three years. We held in that case that '
What this simply means is that absent a final judgment by the Supreme Court in a proper case declaring otherwise, every lawyer aspiring to hold the position of IBP Regional Director is presumed morally fit. Any person who begs to disagree will not be able to find a receptive audience in the IBP through a petition for disqualification but must first file the necessary disbarment or suspension proceeding against the lawyer concerned.
And this is precisely what complainant has chosen to do in the instant case. As his petition is sufficient in form and substance, we have given it due course pursuant to Rule 138 of the Rules of Court. And, considering that this case is not barred by the prior judgment in Adm. Case No. 6052, the only issue left for consideration is whether or not Atty. de Vera can be suspended or disbarred under the facts of the case and the evidence submitted by complainant.
The recommendation of the hearing officer of the State Bar of California, standing alone, is not proof of malpractice.
In the case of the Suspension From The Practice of Law In The Territory of Guam of Atty. Leon G. Maquera,31 we were confronted with the question of whether or not a member of the Philippine Bar, who is concomitantly an attorney in a foreign jurisdiction and who was suspended from the practice of law in said foreign jurisdiction, can be sanctioned as member of the Philippine Bar for the same infraction committed in the foreign jurisdiction.
We take the issue in Atty. Maquera one notch higher in the case of Atty. de Vera who was admitted to the practice of law in a foreign jurisdiction (State Bar of California, U.S.A.) and against whom charges were filed in connection with his practice in said jurisdiction. However, unlike the case of Atty. Maquera, no final judgment for suspension or disbarment was meted against Atty. de Vera despite a recommendation of suspension of three years as he surrendered his license to practice law before his case could be taken up by the Supreme Court of California.
In Maquera, we emphasized that the judgment of suspension against a Filipino lawyer in a foreign jurisdiction does not automatically result in his suspension or disbarment in the Philippines as the acts giving rise to his suspension are not grounds for disbarment and suspension in this jurisdiction. Judgment of suspension against a Filipino lawyer may transmute into a similar judgment of suspension in the Philippines only if the basis of the foreign court's action includes any of the grounds for disbarment or suspension in this jurisdiction. We likewise held that the judgment of the foreign court merely constitutes prima facie evidence of unethical acts as lawyer.
The Maquera ruling is consistent with Rule 39, Section 48, of the Rules of Court which provides:
In Philippine Aluminum Wheels, Inc. v. Fasgi Enterprises, Inc.,32 we explained that "[a] foreign judgment is presumed to be valid and binding in the country from which it comes, until a contrary showing, on the basis of a presumption of regularity of proceedings and the giving of due notice in the foreign forum."
In herein case, considering that there is technically no foreign judgment to speak of, the recommendation by the hearing officer of the State Bar of California does not constitute prima facie evidence of unethical behavior by Atty. de Vera. Complainant must prove by substantial evidence the facts upon which the recommendation by the hearing officer was based. If he is successful in this, he must then prove that these acts are likewise unethical under Philippine law.
There is substantial evidence of malpractice on the part of Atty. de Vera independent of the recommendation of suspension by the hearing officer of the State Bar of California
Section 27 of Rule 138 of our Rules of Court states:
Disciplinary action against a lawyer is intended to protect the court and the public from the misconduct of officers of the court and to protect the administration of justice by requiring that those who exercise this important function shall be competent, honorable and reliable men in whom courts and clients may repose confidence.34 The statutory enunciation of the grounds for disbarment on suspension is not to be taken as a limitation on the general power of courts to suspend or disbar a lawyer. The inherent power of the court over its officers cannot be restricted.35
Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. Section 27 gives a special and technical meaning to the term "Malpractice."36 That meaning is in consonance with the elementary notion that the practice of law is a profession, not a business.37
Unprofessional conduct in an attorney is that which violates the rules on ethical code of his profession or which is unbecoming a member of that profession.38
Now, the undisputed facts:
1. An administrative case against Atty. de Vera was filed before the State Bar of California, docketed then as Adm. Case No. 86-0-18429. It arose from an insurance case Atty. de Vera handled involving Julius Willis, III who figured in an automobile accident in 1986. Atty. de Vera was authorized by the elder Willis (father of Julius who was given authority by the son to control the case because the latter was then studying in San Diego California) for the release of the funds in settlement of the case. Atty. de Vera received a check in settlement of the case which he then deposited to his personal account;39
2. The Hearing referee in the said administrative case recommended that Atty. de Vera be suspended from the practice of law for three years;40 and
3. Atty. de Vera resigned from the California Bar which resignation was accepted by the Supreme Court of California.41
Atty. de Vera vehemently insists that the foregoing facts do not prove that he misappropriated his client's funds as the latter's father (the elder Willis) gave him authority to use the same and that, unfortunately, the hearing officer did not consider this explanation notwithstanding the fact that the elder Willis testified under oath that he "expected de Vera might use the money for a few days."
By insisting that he was authorized by his client's father and attorney-in-fact to use the funds, Atty. de Vera has impliedly admitted the use of the Willis funds for his own personal use.
In fact, Atty. de Vera did not deny complainant's allegation in the latter's memorandum that he (de Vera) received US$12,000.00 intended for his client and that he deposited said amount in his personal account and not in a separate trust account and that, finally, he spent the amount for personal purposes.42
At this point, it bears stressing that in cases filed before administrative and quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.43 It means such evidence which affords a substantial basis from which the fact in issue can be reasonably inferred.44
Beyond doubt, the unauthorized use by a lawyer of his client's funds is highly unethical. Canon 16 of the Code of Professional Responsibility is emphatic about this, thus:
In Espiritu v. Ulep45 we held that '
In herein case, as it is admitted by Atty. de Vera himself that he used his client's money for personal use, he has unwittingly sealed his own fate since this admission constitutes more than substantial evidence of malpractice. Consequently, Atty. de Vera now has the burden of rebutting the evidence which he himself supplied.
In his defense, Atty. de Vera claims that he was duly authorized by the elder Willis to use the funds intended for the latter's son. Atty. de Vera also points out that he had restituted the full amount of US$12,000.00 even before the filing of the administrative case against him in the State Bar of California.46
Aside from these self-serving statements, however, we cannot find anywhere in the records of this case proof that indeed Atty. de Vera was duly authorized to use the funds of his client. In Radjaie v. Atty. Alovera47 we declared that '
Atty. de Vera cannot rely on the statement made by the hearing officer that the elder Willis had indeed testified that he "expected de Vera might use the money for a few days." As Atty. de Vera had vigorously objected to the admissibility of the document containing this statement, he is now estopped from relying thereon. Besides, that the elder Willis "expected de Vera might use the money for a few days" was not so much an acknowledgment of consent to the use by Atty. de Vera of his client's funds as it was an acceptance of the probability that Atty. de Vera might, indeed, use his client's funds, which by itself did not speak well of the character of Atty. de Vera or the way such character was perceived.
In the instant case, the act of Atty. de Vera in holding on to his client's money without the latter's acquiescence is conduct indicative of lack of integrity and propriety. It is clear that Atty. de Vera, by depositing the check in his own account and using the same for his own benefit is guilty of deceit, malpractice, gross misconduct and unethical behavior. He caused dishonor, not only to himself but to the noble profession to which he belongs. For, it cannot be denied that the respect of litigants to the profession is inexorably diminished whenever a member of the profession betrays their trust and confidence.48 Respondent violated his oath to conduct himself with all good fidelity to his client.
Nevertheless, we do not agree with complainant's plea to disbar respondent from the practice of law. The power to disbar must be exercised with great caution.49 Where any lesser penalty can accomplish the end desired, disbarment should not be decreed.
In Mortera v. Pagatpatan,50 we imposed upon Atty. Pagatpatan two years suspension from his practice of law for depositing the funds meant for his client to his personal account without the latter's knowledge. In Reyes v. Maglaya;51 Castillo v. Taguines;52 Espiritu v. Atty. Cabredo IV,53 the respondents were meted one year suspension each for failing to remit to their clients monies in the amounts of P1,500.00; P500.00, and P51,161.00, respectively, received by them for their clients without the latter's permission. In Dumadag v. Atty. Lumaya,54 we indefinitely suspended respondent for failure to remit to his client the amount of the measly sum of P4,344.00 representing the amount received pursuant to a writ of execution. Considering the amount involved here - US$12,000.00, we believe that the penalty of suspension for two (2) years is appropriate.
Transferring IBP membership to a chapter where the lawyer is not a resident of is not a ground for his suspension or disbarment
Complainant insists that Atty. de Vera's transfer of membership from the Pasay, Parañaque, Las Piñas and Muntinlupa (PPLM) Chapter to the Agusan del Sur IBP Chapter is a circumvention of the rotation rule as it was made for the sole purpose of becoming IBP National President. Complainant stresses that Atty. de Vera is not a resident of Agusan del Sur nor does he hold office therein.
In Adm. Case No. 6052, we held that Atty. de Vera's act of transferring to another IBP Chapter is not a ground for his disqualification for the post of IBP Governor as the same is allowed under Section 19 of the IBP By-Laws with the qualification only that the transfer be made not less than three months immediately preceding any chapter election.
As it was perfectly within Atty. de Vera's right to transfer his membership, it cannot be said that he is guilty of unethical conduct or behavior. And while one may incessantly argue that a legal act may not necessarily be ethical, in herein case, we do not see anything wrong in transferring to an IBP chapter that - - based on the rotation rule - will produce the next IBP EVP who will automatically succeed to the National Presidency for the next term. Our Code of Professional Responsibility as well as the Lawyer's Oath do not prohibit nor punish lawyers from aspiring to be IBP National President and from doing perfectly legal acts in accomplishing such goal.
Bar Matter No. 1227
To resolve Bar Matter No. 1227 and Administrative Matter No. 05-5 - 15-SC, the following issues must be addressed:
The IBP Board observed due process in its removal of Atty. de Vera as IBP Governor
We start the discussion with the veritable fact that the IBP Board is vested with the power to remove any of its members pursuant to Section 44, Article VI of the IBP By-Laws, which states:
Under the aforementioned section, a member of the IBP Board may be removed for cause by resolution adopted by two-thirds (2/3) of the remaining members of the Board, subject to the approval of this Court.
In the main, Atty. de Vera questions his removal from the Board of Governors on procedural and substantive grounds. He argues that he was denied "very basic rights of due process recognized by the Honorable Court even in administrative cases" like the right to answer formally or in writing and within reasonable time, the right to present witnesses in his behalf, the right to a fair hearing. Atty. de Vera protests the fact that he was not able to cross-examine the complainant, IBP Gov. Romulo H. Rivera (Atty. Rivera) and that Atty. Rivera voted as well for his expulsion which made him accuser, prosecutor and judge at the same time. Atty. de Vera emphasized the fact that Atty. Rivera initially inhibited himself from voting on his own motion. However, when his inhibition resulted in the defeat of his motion as the necessary 2/3 votes could not be mustered, Atty. Rivera asked for another round of voting so he could vote to support his own motion.
The IBP Board counters that since its members were present during the plenary session, and personally witnessed and heard Atty. de Vera's actuations, an evidentiary or formal hearing was no longer necessary. Since they all witnessed and heard Atty. de Vera, it was enough that he was given an opportunity to refute and answer all the charges imputed against him. They emphasized that Atty. de Vera was given a copy of the complaint and that he was present at the Board Meeting on 13 May 2005 wherein the letter-complaint against him was part of the agenda. Therein, he was given the opportunity to be heard and that, in fact, Atty. de Vera did argue his case.
We are in agreement with the IBP Board.
First, it needs stressing that the constitutional provision on due process safeguards life, liberty and property.55 It cannot be said that the position of EVP of the IBP is property within the constitutional sense especially since there is no right to security of tenure over said position as, in fact, all that is required to remove any member of the board of governors for cause is a resolution adopted by 2/3 of the remaining members of the board.
Secondly, even if the right of due process could be rightfully invoked, still, in administrative proceedings, the essence of due process is simply the opportunity to explain one's side.56 At the outset, it is here emphasized that the term "due process of law" as used in the Constitution has no fixed meaning for all purposes due "to the very nature of the doctrine which, asserting a fundamental principle of justice rather than a specific rule of law, is not susceptible of more than one general statement."57 The phrase is so elusive of exact apprehension,58 because it depends on circumstances and varies with the subject matter and the necessities of the situation.59
Due process of law in administrative cases is not identical with "judicial process" for a trial in court is not always essential to due process. While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative proceedings since they rest upon different principles. The due process clause guarantees no particular form of procedure and its requirements are not technical. Thus, in certain proceedings of administrative character, the right to a notice or hearing are not essential to due process of law. The constitutional requirement of due process is met by a fair hearing before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making of such determination may be raised and considered. One adequate hearing is all that due process requires. What is required for "hearing" may differ as the functions of the administrative bodies differ.60
The right to cross-examine is not an indispensable aspect of due process.61 Nor is an actual hearing always essential62 especially under the factual milieu of this case where the members of the IBP Board - - upon whose shoulders the determination of the cause for removal of an IBP governor is placed subject to the approval of the Supreme Court - all witnessed Atty. de Vera's actuations in the IBP National Convention in question.
It is undisputed that Atty. de Vera received a copy of the complaint against him and that he was present when the matter was taken up. From the transcript of the stenographic notes of the 13 May 2005 meeting wherein Atty. de Vera was removed, it is patent that Atty. de Vera was given fair opportunity to defend himself against the accusations made by Atty. Rivera.
Atty. de Vera, however, additionally questions the fact that Atty. Rivera, who authored the complaint against him, also voted for his expulsion making him accuser, prosecutor and judge at the same time. Atty. de Vera likewise laments the fact that Atty. Rivera initially inhibited himself from voting but when this resulted in the defeat of his motion for lack of the necessary 2/3 vote, he agreed to another round of voting and that, this time, he voted in favor of his motion.
For the record, of the nine governors comprising the IBP Board, six voted for Atty. de Vera's expulsion (including Atty. Rivera) while 3 voted against it (including Atty. de Vera).
Section 44 (second paragraph) of the IBP By-Laws provides:
Under the rules, a resolution for expulsion of an IBP Governor is done via a resolution adopted by 2/3 of the remaining members. The phrase "remaining members" refers to the members exclusive of the complainant member and the respondent member. The reason therefore is that such members are interested parties and are thus presumed to be unable to resolve said motion impartially. This being the case, the votes of Attys. Rivera and de Vera should be stricken-off which means that only the votes of the seven remaining members are to be counted. Of the seven remaining members, five voted for expulsion while two voted against it which still adds up to the 2/3 vote requirement for expulsion.
The IBP Board removed Atty. de Vera as IBP Governor for just and valid cause
All the concerned parties to this case agree that what constitutes cause for the removal of an IBP Governor has not been defined by Section 44 of the IBP By-Laws albeit it includes three consecutive absences from Board meetings without justifiable excuse. Thus, the IBP Board argues that it is vested with sufficient power and authority to protect itself from an intractable member whose removal was caused not by his disagreement with the IBP Board but due to various acts committed by him which the IBP Board considered as inimical to the IBP Board in particular and the IBP in general.
Atty. de Vera, on the other hand, insists that speaking in disagreement with the Resolution of the Board during the Convention's Plenary Session is not a valid cause to remove or expel a duly-elected member of the IBP Board of Governors and the decision to remove him only shows that the right to freedom of speech or the right to dissent is not recognized by the IBP Board.
After weighing the arguments of the parties and in keeping with the fundamental objective of the IBP to discharge its public responsibility more effectively, we hereby find that Atty. de Vera's removal from the IBP Board was not capricious or arbitrary.
Indubitably, conflicts and disagreements of varying degrees of intensity, if not animosity, are inherent in the internal life of an organization, but especially of the IBP since lawyers are said to disagree before they agree.
However, the effectiveness of the IBP, like any other organization, is diluted if the conflicts are brought outside its governing body for then there would be the impression that the IBP, which speaks through the Board of Governors, does not and cannot speak for its members in an authoritative fashion. It would accordingly diminish the IBP's prestige and repute with the lawyers as well as with the general public.
As a means of self-preservation, internecine conflicts must thus be adjusted within the governing board itself so as to free it from the stresses that invariably arise when internal cleavages are made public.
The doctrine of majority rule is almost universally used as a mechanism for adjusting and resolving conflicts and disagreements within the group after the members have been given an opportunity to be heard. While it does not efface conflicts, nonetheless, once a decision on a contentious matter is reached by a majority vote, the dissenting minority is bound thereby so that the board can speak with one voice, for those elected to the governing board are deemed to implicitly contract that the will of the majority shall govern in matters within the authority of the board.63
The IBP Board, therefore, was well within its right in removing Atty. de Vera as the latter's actuations during the 10th National IBP Convention were detrimental to the role of the IBP Board as the governing body of the IBP. When the IBP Board is not seen by the bar and the public as a cohesive unit, it cannot effectively perform its duty of helping the Supreme Court enforce the code of legal ethics and the standards of legal practice as well as improve the administration of justice.
In view of the importance of retaining group cohesiveness and unity, the expulsion of a member of the board who insists on bringing to the public his disagreement with a policy/resolution approved by the majority after due discussion, cannot be faulted. The effectiveness of the board as a governing body will be negated if its pronouncements are resisted in public by a board member.
Indeed, when a member of a governing body cannot accept the voice of the majority, he should resign therefrom so that he could criticize in public the majority opinion/decision to his heart's content; otherwise, he subjects himself to disciplinary action by the body.
The removal of Atty. de Vera as member of the Board of Governors ipso facto meant his removal as EVP as well
The removal of Atty. de Vera as member of the Board of Governors ipso facto meant his removal as EVP as well. Section 47, Article VII of the By-Laws of the IBP provides:
Thus, to be EVP of the IBP, one must necessarily be a member of IBP Board of Governors. Atty. de Vera's removal from the Board of Governors, automatically disqualified him from acting as IBP EVP. To insist otherwise would be contrary to Section 47 of the IBP By-Laws.
The Court will not interfere with the Resolution of the IBP Board to remove Atty. de Vera since it was rendered without grave abuse of discretion
While it is true that the Supreme Court has been granted an extensive power of supervision over the IBP,64 it is axiomatic that such power should be exercised prudently. The power of supervision of the Supreme Court over the IBP should not preclude the IBP from exercising its reasonable discretion especially in the administration of its internal affairs governed by the provisions of its By-Laws. The IBP By-Laws were precisely drafted and promulgated so as to define the powers and functions of the IBP and its officers, establish its organizational structure, and govern relations and transactions among its officers and members. With these By-Laws in place, the Supreme Court could be assured that the IBP shall be able to carry on its day-to-day affairs, without the Court's interference.
It should be noted that the general charge of the affairs and activities of the IBP has been vested in the Board of Governors. The members of the Board are elective and representative of each of the nine regions of the IBP as delineated in its By-Laws.65 The Board acts as a collegiate body and decides in accordance with the will of the majority. The foregoing rules serve to negate the possibility of the IBP Board acting on the basis of personal interest or malice of its individual members. Hence, the actions and resolutions of the IBP Board deserve to be accorded the disputable presumption66 of validity, which shall continue, until and unless it is overcome by substantial evidence and actually declared invalid by the Supreme Court. In the absence of any allegation and substantial proof that the IBP Board has acted without or in excess of its authority or with grave abuse of discretion, we shall not be persuaded to overturn and set aside the Board's action or resolution.
There is no question that the IBP Board has the authority to remove its members as provided in Article VI, Section 4467 of the IBP By-Laws. Issue arises only as to whether the IBP Board abused its authority and discretion in resolving to remove Atty. de Vera from his post as an IBP Governor and EVP. As has been previously established herein, Atty. de Vera's removal from the IBP Board was in accordance with due process and the IBP Board acted well within the authority and discretion granted to it by its By-Laws. There being no grave abuse of discretion on the part of the IBP Board, we find no reason to interfere in the Board's resolution to remove Atty. de Vera.
The election of Atty. Salazar by the IBP Board as IBP EVP in replacement of Atty. De Vera was conducted in accordance with the authority granted to the Board by the IBP By-Laws
In the same manner, we find no reason to disturb the action taken by the 2003-2005 IBP Board of Governors in holding a special election to fill-in the vacant post resulting from the removal of Atty. de Vera as EVP of the IBP since the same is a purely internal matter, done without grave abuse of discretion, and implemented without violating the Rules and By-Laws of the IBP.
With the removal of Atty. de Vera from the Board, by virtue of the IBP Board Resolution dated 13 May 2005, he was also removed from his post as EVP; thus, there was a resultant vacancy in the position of IBP EVP.
Article VI, Section 41(g) of the IBP By-Laws expressly grants to the Board the authority to fill vacancies, however arising, in the IBP positions, subject to the provisions of Section 8 of the Integration Rule,68 and Section 11 (Vacancies),69 Section 44 (Removal of members),70 Section 47 (National officers),71 Section 48 (other officers),72 and Section 49 (Terms of Office)73 of the By-Laws. The IBP Board has specific and sufficient guidelines in its Rules and By-Laws on how to fill-in the vacancies after the removal of Atty. de Vera. We have faith and confidence in the intellectual, emotional and ethical competencies of the remaining members of the 2005-2007 Board in dealing with the situation within the bounds of the IBP Rules and By-Laws.
The election by the 2003-2005 IBP Board of Governors of a new EVP, who will assume the Presidency for the term 2005-2007, was well within the authority and prerogative granted to the Board by the IBP By-Laws, particularly Article VII, Section 47, which provides that "[t]he EVP shall automatically become President for the next succeeding term." The phrase "for the next succeeding term" necessarily implies that the EVP that should succeed Atty. Cadiz as IBP President for the next succeeding term (i.e., 2005-2007) should come from the members of the 2003-2005 IBP Board of Governors. Hence, in A.M. No. 05-7-19-SC, we restrained now IBP EVP Feliciano Bautista from assuming the position of Acting President because we have yet to resolve the question as to who shall succeed Atty. Cadiz from the 2003-2005 IBP Board of Governors.
Accordingly, the elections of Governor Santiago on 13 June 2005 as IBP EVP, and thereafter, Governor Salazar on 25 June 2005, as the new IBP EVP, upon the relinquishment of Gov. Santiago of the position, were valid.
Neither can this Court give credence to the argument of Atty. De Vera that, assuming his removal as IBP Governor and EVP was valid, his replacement as IBP EVP should come from Eastern Mindanao Region pursuant to the rotation rule set forth in Article VII, Section 47, of the IBP By-Laws.
According to Article VII, Section 47, of the IBP By-Laws, the EVP shall be chosen by the Board of Governors from among the nine Regional Governors, as much as practicable, on a rotation basis. This is based on our pronouncements in Bar Matter 491, wherein we ruled:
In Bar Matter 491, it is clear that it is the position of IBP EVP which is actually rotated among the nine Regional Governors. The rotation with respect to the Presidency is merely a result of the automatic succession rule of the IBP EVP to the Presidency. Thus, the rotation rule pertains in particular to the position of IBP EVP, while the automatic succession rule pertains to the Presidency. The rotation with respect to the Presidency is but a consequence of the automatic succession rule provided in Section 47 of the IBP By-Laws.
In the case at bar, the rotation rule was duly complied with since upon the election of Atty. De Vera as IBP EVP, each of the nine IBP regions had already produced an EVP and, thus, the rotation was completed. It is only unfortunate that the supervening event of Atty. de Vera's removal as IBP Governor and EVP rendered it impossible for him to assume the IBP Presidency. The fact remains, however, that the rotation rule had been completed despite the non-assumption by Atty. de Vera to the IBP Presidency.
Moreover, the application of the rotation rule is not a license to disregard the spirit and purpose of the automatic succession rule, but should be applied in harmony with the latter. The automatic succession rule affords the IBP leadership transition seamless and enables the new IBP National President to attend to pressing and urgent matters without having to expend valuable time for the usual adjustment and leadership consolidation period. The time that an IBP EVP spends assisting a sitting IBP President on matters national in scope is in fact a valuable and indispensable preparation for the eventual succession. It should also be pointed out that this wisdom is further underscored by the fact that an IBP EVP is elected from among the members of the IBP Board of Governors, who are serving in a national capacity, and not from the members at large. It is intrinsic in the IBP By-Laws that one who is to assume the highest position in the IBP must have been exposed to the demands and responsibilities of national leadership.
It would therefore be consistent with the purpose and spirit of the automatic succession rule for Governor Salazar to assume the post of IBP President. By electing the replacement EVP from among the members of the 2003-2005 Board of Governors, the IBP benefits from the experience of the IBP EVP of 2003-2005 - in this case, Governor Salazar - who would have served in a national capacity prior to his assumption of the highest position.
It will also be inconsistent with the purpose and spirit of the automatic succession rule if the EVP for the term 2003-2005 will be elected exclusively by the members of the House of Delegates of the Eastern Mindanao region. This Court notes that the removal of Atty. De Vera in 13 May 2005 was about a month before the expiration of the term of office of the 2003-2005 Board of Governors. Hence, the replacement Governor would not have been able to serve in a national capacity for two years prior to assuming the IBP Presidency.
In any case, Section 47 of the IBP Rules uses the phrase "as much as practicable" to clearly indicate that the rotation rule is not a rigid and inflexible rule as to bar exceptions in compelling and exceptional circumstances.
It is in view of the foregoing that the argument advanced by Atty. De Vera that the IBP national presidency should be assumed by a nominee from Eastern Mindanao region from where he comes, can not hold water. It would go against the intent of the IBP By-Laws for such a nominee would be bereft of the wealth of experience and the perspective that only one who is honed in service while serving in a national post in the IBP would have.
We therefore rule that the IBP Board of Governors acted in accordance with the IBP By-Laws, in electing Atty. Salazar as IBP EVP and in ensuring a succession in the leadership of the IBP. Had the Board of Governors not done so, there would have been no one qualified to assume the Presidency of the IBP on 1 July 2005, pursuant to Section 47 of the IBP By-Laws.
WHEREFORE, in view of the foregoing, we rule as follows:
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., JJ., concur.
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