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EN BANC A.M. No. 10-1-13-SC : March 2, 2010 RE: SUBPOENA DUCES TECUM DATED JANUARY 11, 2010 OF ACTING DIRECTOR ALEU A. AMANTE, PIAB-C, OFFICE OF THE OMBUDSMAN R E S O L U T I O N PER CURIAM: Before us for consideration are the interrelated matters listed below.
OUR RULING I. The Subpoena Duces Tecum In light of the Ombudsmans dismissal order of February 4, 2010, any question relating to the legality and propriety of the subpoena duces tecum the Ombudsman issued has been rendered moot and academic. The subpoena duces tecum merely drew its life and continued viability from the underlying criminal complaint, and the complaints dismissal belated though it may be cannot but have the effect of rendering the need for the subpoena duces tecum academic.chanroblesvirtua|awlibary As guide in the issuance of compulsory processes to Members of this Court, past and present, in relation to complaints touching on the exercise of our judicial functions, we deem it appropriate to discuss for the record the extent of the Ombudsmans authority in these types of complaints.chanroblesvirtua|awlibary In the appropriate case, the Office of the Ombudsman has full authority to issue subpoenas, including subpoena duces tecum, for compulsory attendance of witnesses and the production of documents and information relating to matters under its investigation. In the present case, the "matter" that gave rise to the issuance of a subpoena duces tecum was a criminal complaint filed by the complainants Lozano for the alleged violation by retired Supreme Court Chief Justice Hilario Davide, Jr. and retired Associate Justice Ma. Alicia Austria-Martinez of Section 3(e) of R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act).chanroblesvirtua|awlibary A first step in considering whether a criminal complaint (and its attendant compulsory processes) is within the authority of the Ombudsman to entertain (and to issue), is to consider the nature of the powers of the Supreme Court. This Court, by constitutional design, is supreme in its task of adjudication; judicial power is vested solely in the Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts, not only to settle actual controversies, but also to determine whether grave abuse of discretion amounting to lack or excess of jurisdiction has been committed in any branch or instrumentality of government. A simple jurisprudential research would easily reveal that this Court has had the occasion to rule on the liability of Justices of the Supreme Court for violation of Section 3(e) of R.A. 3019the very same provision that the complainants Lozano invoke in this case.chanroblesvirtua|awlibary In In re Wenceslao Laureta, In re Joaquin T. Borromeo That is not to say that it is not possible at all to prosecute judges for this impropriety, of rendering an unjust judgment or interlocutory order; but, taking account of all the foregoing considerations, the indispensable requisites are that there be a final declaration by a competent court in some appropriate proceeding of the manifestly unjust character of the challenged judgment or order, and there be also evidence of malice and bad faith, ignorance or inexcusable negligence on the part of the judge in rendering said judgment or order.chanroblesvirtua|awlibary Thus, consistent with the nature of the power of this Court under our constitutional scheme, only this Court not the Ombudsman can declare a Supreme Court judgment to be unjust.chanroblesvirtua|awlibary In Alzua v. Arnalot, Plainly, under these rulings, a criminal complaint for violation of Section 3(e) of RA 3019, based on the legal correctness of the official acts of Justices of the Supreme Court, cannot prosper and should not be entertained. This is not to say that Members of the Court are absolutely immune from suit during their term, for they are not. The Constitution provides that the appropriate recourse against them is to seek their removal from office if they are guilty of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Section 22 of Republic Act No. 6770, in fact, specifically grants the Ombudsman the authority to investigate impeachable officers, but only when such investigation is warranted: Section 22. Investigatory Power. The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.chanroblesvirtua|awlibary Conversely, if a complaint against an impeachable officer is unwarranted for lack of legal basis and for clear misapplication of law and jurisprudence, the Ombudsman should spare these officers from the harassment of an unjustified investigation. The present criminal complaint against the retired Justices is one such case where an investigation is not warranted, based as it is on the legal correctness of their official acts, and the Ombudsman should have immediately recognized the criminal complaint for what it is, instead of initially proceeding with its investigation and issuing a subpoena duces tecum. II. The Ombudsmans Dismissal of the Criminal Complant As the Ombudsmans dismissal of the criminalcomplaint (Oliver O. Lozano and Evangeline Lozano-Endriano v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J) clearly implied, no complete dismissal took place as the matter was simply "referred to the Supreme Court for appropriate action.cra|aw" Although it was belatedly made, we cannot fault this Ombudsman action for the reasons we have already discussed above. While both accused are now retired from the service, the complaint against them still qualifies for exclusive consideration by this Court as the acts complained of spring from their judicial actions while they were with the Court. From this perspective, we therefore pass upon the prima facie merits of the complainants Lozanos criminal complaint. a. Grounds for the Dismissal of the Complaint By its express terms, the criminal complaint stemmed from the participation of the accused in the Resolution the First Division of this Court issued in Heirs of Antonio Pael v. Court of Appeals, docketed as G.R. Nos. 133547 and 133843. The retired Chief Justice and retired Associate Justice allegedly committed the following unlawful acts:
cralawBy these acts, the retired Members of this Court are being held criminally accountable on the theory that they violated the Constitution and the law in their ruling in the cited cases, thereby causing "undue injury" to the parties to these cases.chanroblesvirtua|awlibary After due consideration, we dismiss the criminal complaint against retired Chief Justice Hilario G. Davide, Jr. and retired Associate Justice Ma. Alicia Austria-Martinez under Section 3(e) of RA 3019. We fully expound on the reasons for this conclusion in the discussions below.chanroblesvirtua|awlibary a. Contrary to the complainants position, the Supreme Court has the power to review the lower courts findings of fact.chanroblesvirtua|awlibary The Supreme Court is the highest court of the land with the power to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of the lower courts. b. Constitutional Provisions were misused.chanroblesvirtua|awlibary The complainants Lozano appear to us to have brazenly misquoted and misused applicable constitutional provisions to justify their case against the retired Justices. We refer particularly to their use (or strictly, misuse) of Article X, Section 2(3) of the 1973 Constitution which they claim to be the governing rule that the retired Justices should have followed in acting on Pael. This constitutional provision states: Cases heard by a division shall be decided with the concurrence of at least five Members, but if such required number is not obtained the case shall be decided en banc; Provided, that no doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc. For failure of the retired Justices to act according to these terms, the complainants claim that the former subverted the Constitution by reversing, by a vote of a majority of only three members, the decision of the First Division unanimously approved by its full membership of five members.chanroblesvirtua|awlibary Had the complainants bothered to carefully consider the facts and developments in Pael and accordingly related these to the applicable constitutional provision, they would have discovered that Pael was decided in 2003 when the 1987 Constitution, not the 1973 Constitution, was the prevailing Charter. They then would have easily learned of the manner cases are heard and decided by Division before the Supreme Court under the 1987 Constitution. Section 4(3), Article VIII of this Constitution provides: Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc; Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc." (Emphasis supplied.) This was the provision that governed in 2003 and still governs to this day. Thus, the complainants argument and basis for their criminal complaint that in ruling on a motion for reconsideration, all five members of the Division should concur is totally wrong.chanroblesvirtua|awlibary c. The elements of the offense charged are not sufficiently alleged in the complaint A public official can violate Section 3(e) of Republic Act No. 3019 "Partiality" is defined as a bias or disposition to see and report matters as wished for, rather than as they are. "Bad faith" connotes not only bad judgment or negligence, but also a dishonest purpose, a conscious wrongdoing, or a breach of duty amounting to fraud. "Gross negligence," on the other hand, is characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences as far as other persons are concerned. The criminal complaint in this case failed to allege the facts and circumstances showing that the retired Justices acted with partiality, bad faith or negligence. A judicial officers act in reviewing the findings of fact in a decision and voting for its reversal cannot by itself constitute a violation of Section 3(e) of Republic Act No. 3019 in the absence of facts, alleged and proven, demonstrating a dishonest purpose, conscious partiality, extrinsic fraud, or any wrongdoing on his or her part. A complainants mere disagreement with the magistrates own conclusions, to be sure, does not justify a criminal charge under Section 3(e) against the latter. In the absence of alleged and proven particular acts of manifest partiality, evident bad faith or gross inexcusable negligence, good faith and regularity are generally presumed in the performance of official duties by public officers. For the criminal complaints fatal omissions and resultant failure to allege a prima facie case, it rightfully deserves immediate dismissal. III. The Complainants Potential Liability for Filing the Ombudsman Complaint In light of the above conclusions and under the attendant circumstances of the criminal complaints, we cannot avoid considering whether the complainants Lozano acted properly as members of the Bar, as officers of this Court, and as professionals governed by norms of ethical behavior, in filing their complaint.chanroblesvirtua|awlibary In their criminal complaint, the complainants gave a slanted view of the powers of this Court to suit their purposes; for these same purposes, they wrongly cited and misapplied the provisions of the Constitution, not just any ordinary statute. As lawyers, the complainants must be familiar and well acquainted with the fundamental law of the land, and are charged with the duty to apply the constitutional provisions in light of their prevailing jurisprudential interpretation. As law practitioners active in the legal and political circles, the complainants can hardly be characterized as "unknowing" in their misuse and misapplication of constitutional provisions. They should, at the very least, know that the 1973 Constitution and its provisions have been superseded by the 1987 Constitution, and that they cannot assail invoking the 1973 Constitution the judicial acts of members of the Supreme Court carried out in 2003 when the 1987 Constitution was in effect. Their misuse of the Constitution is made more reprehensible when the overriding thrust of their criminal complaint is considered; they used the 1973 provisions to falsely attribute malice and injustice to the Supreme Court and its Members.chanroblesvirtua|awlibary In our view, the complainants errors do not belong to the genre of plain and simple errors that lawyers commit in the practice of their profession. Their plain disregard, misuse and misrepresentation of constitutional provisions constitute serious misconduct that reflects on their fitness for continued membership in the Philippine Bar. At the very least, their transgressions are blatant violations of Rule 10.02 of the Code of Professional Responsibility, which provides: Rule 10.02. A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as a law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. (Emphasis provided.) To emphasize the importance of requiring lawyers to act candidly and in good faith, an identical provision is found in Cannon 22 of the Canons of Professional Ethics. Moreover, lawyers are sworn to "do no falsehood, nor consent to the doing of any in court" before they are even admitted to the Bar. All these the complainants appear to have seriously violated.chanroblesvirtua|awlibary In the interest of due process and fair play, the complainants Lozano should be heard, in relation to their criminal complaint before the Ombudsman against retired Chief Justice Hilario G. Davide, Jr. and retired Associate Justice Ma. Alicia Austria-Martinez, on why they should not be held accountable and accordingly penalized for violations of their duties as members of the Bar and officers of this Court, and of the ethics of the legal profession.chanroblesvirtua|awlibary WHEREFORE, premises considered, we DISMISS the criminal complaint entitled Oliver O. Lozano, et al. v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J for utter lack of merit, and DECLARE as MOOT and ACADEMIC the question of compliance with the subpoena duces tecum dated January 11, 2010 that the Ombudsman issued against this Court.chanroblesvirtua|awlibary We hereby ORDER the complainants Atty. Oliver O. Lozano and Atty. Evangeline Lozano-Endriano to EXPLAIN IN WRITING to this Court, within a non-extendible period of 15 days from receipt of this Resolution, why they should not be penalized as members of the Bar and as officers of this Court, for their open disregard of the plain terms of the Constitution and the applicable laws and jurisprudence, and their misuse and misrepresentation of constitutional provisions in their criminal complaint before the Office of the Ombudsman, entitled Oliver O. Lozano, et al. v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J. SO ORDERED. REYNATO S. PUNO
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