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A.M. OCA IPI No. 05-1797-MTJ. August 14, 2006]

2LT. ALEXANDER MAGAS v. JUDGE CESAR L. SALAZAR, 7TH MCTC, PALANAN-DINAPIGUE, ISABELA

First Division

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated AUG. 14, 2006

A.M. OCA IPI No. 05-1797-MTJ (2Lt. Alexander Magas v. Judge Cesar L. Salazar, 7th MCTC, Palanan-Dinapigue, Isabela)

The instant administrative matter arose from the verified Complaint dated November 10, 2005 and Supplemental Complaint filed by 2Lt. Alexander Magas, charging respondent Judge Cesar L. Salazar with conduct unbecoming a judge, partiality, bias and impropriety, gross violation of the Rules on Criminal Procedure, and gross negligence in the performance of duties.

In its Report dated July 6, 2006, the Office of the Court Administrator (OCA) made the following evaluation and recommendation:

EVALUATION: Complainant is the owner of a land situated between the land of respondent judge and one Rolly Guerrero.

Complainant filed a civil action against Guerrero. Respondent judge dismissed the case on the ground of lack of verification and certification against non-forum shopping. Defendant Guerrero, in turn, filed four (4) criminal complaints against him. Relative to these criminal complaints, herein complainant filed the instant administrative complaints against respondent judge.

The complaint and supplemental complaint should be dismissed.

On the charges of conduct unbecoming a judge and partiality, complainant failed to substantiate his allegation that respondent judge is interested in the prosecution of the criminal cases against him because: (1) complainant's land blocks the potential source of water to respondent's land; and (2) respondent took against the complainant the Filing of an administrative complaint against one SPO2 Ochoa, the wife of whom is allegedly respondent's very close relative. These are bare allegations. Settled is the rule that in administrative proceedings, the burden of proof that respondent committed the act complained of rests on the complainant.

Also, respondent judge was able to refute the Sworn Statement dated November 2, 2005 of Brgy. Captain Pantaleon Magas attesting that he heard Judge Salazar state:

"Sige . Ituloy ninyo ang kaso laban kay Alexander Magas! Tingnan natin ang galing niya! Yung porsyento ko sa perang ibibigay nyang pagnakipag-areglo huwag ninyong kalimutang ibigay sa akin ha. Huwag kang pipirma ng Affidavit of Desistance pag di mo pa natatanggap ang pera ."

by submitting a later Sworn Statement of the same affiant admitting the fact that he signed his Sworn Statement of November 2, 2005 without reading the contents because he was not wearing his reading glasses at that time. In addition, respondent submitted the Sworn Statement of Barangay Kagawad Marcos Rogicio, companion of Pantaleon Magas during the incident when respondent judge's statement was allegedly overheard. In his affidavit, Rogicio denied having heard the abovequoted statement.

Respondent judge further states:

"xxx. In my forty four years of public life I never tried asking anything material or pecuniary from anybody. I was never tempted to do so even during the student days of my nine children, who are now gainfully employed. I am very much contented with what the Supreme Court is giving me together with the P22,000.00 that the coastal towns of lsabela are giving me in terms of honorarium and the pension of my wife. The people of the municipalities of Maconacon, Divilican, Dinapigue, San Pablo, Sta. Maria, Cabagan and Sto. Tomas can vouch to my integrity having presided in an acting capacity for MCTC-Cabagan-Sto. Tomas and San Pablo-Sta. Maria (sic).

His allegation that I am biased is too pre-mature. xxx (He may file) a petition for inhibition if he think(s) I am biased.

x x x

"In fact, during the supposed arraignment last December 2, 2005, I gave him my fatherly advice being a distant relative (and told him:) 'Ayusin mo ang iyong problema, huwag mong hayaan masira ang iyong serbisio sa military. lisa pa lang ang taga-Palanan na naging official sa military sa katauhan ni Col. Armando Donato. You may be the next or even better.' I suspect the presence of political pigmentation to ruin my career in the judiciary, perhaps because of the political involvement of my son Dr. Isabelo F. Salazar III now serving his last term as member of the Sangguniang bayan and rumored for higher political position. (sic)"

On the allegation of bias and impropriety, complainant alleges that on December 2, 2005, he received instructions (from whom, it was not specified) to go to the office of respondent judge. Nobody was around at 2:00 o'clock in the afternoon. Complainant and respondent talked for about one or two (2) hours mostly about the criminal charges against him. Respondent judge told him: "Ayusin mo yang mga kaso mo. Pag nawala ang ranko mo, di na babalik sa iyo yan. Di ka mapro-promote pag may kaso ka. Minsan lang darating sa iyo ang ranko mo. Di na babalik sayo yan pag nawala ." Complainant took this as a manifestation of partiality and bias against him.

This Office notes that the complainant appears to be using suggestive words to put the respondent in a bad light. First, complainant never gave a straightforward narration of why he went to court when records clearly show that he went there for his scheduled arraignment and pre-trial. His narration impressed upon this Office that the instructions for him to go to the office was unofficial and intended for respondent judge to talk to him when the conversation transpired only because the scheduled hearing was postponed. Second, this Office is convinced that whatever was said to him was a fatherly advice as the same appears to be a sincere expression of concern. With such a positive statement, any sensible person would even think that the judge is biased in favor of the complainant. More so, when complainant is a neighbor and a distant relative. As regards the allegation that nobody was in court at 2:00 o'clock in the afternoon, the court personnel executed a joint affidavit stating that all of them were at the office until the closing of office hours.

Complainant also alleges that, further in their conversation, respondent judge discussed his plan to develop his land adjacent to complainant's land. He will build an irrigation canal that would pass through complainant's land. Respondent told him: "Hati tayo sa bayad ng dam pero ikaw ang bahala sa kanal sa lupa mo, at ako naman ang bahala sa kanal sa lupa ko." Complainant finds the discussion inappropriate considering that he has several cases pending in respondent's court. To his mind, respondent judge is taking advantage of the situation. According to him, because respondent judge will benefit from it, "he must share expenses on the irrigation of (his) land because (his) land is between the water source xxx and (respondent's) land."

We disagree with the complainant. No impropriety exists in this case. The circumstances that led to the conversation would show that the idea of building an irrigation canal beneficial to both of them merely cropped up in the course of their conversation, the conversation of which was made in their capacity as neighbor-landowners. The respondent judge imparted what he planned to do with his land without making any demands from the complainant. The respondent judge correctly pointed out that, aside from the fact that the terms presented appear to be just and fair, the plan was a mere proposal.

On the charge of gross violation of the Rules on Criminal Procedure for failure to transmit respondent judge's resolution of the case to the Provincial Prosecutor's Office for review and, instead, filed it directly before his court, respondent judge correctly pointed out that the conduct of the preliminary investigation is required only where the penalty attached to the offense is at least four (4) years, two (2) months and one (1) day. In the subject criminal cases, the penalties prescribed by law are all below four (4) years, two (2) months and one (1) day. Under the circumstances, he contends that "(u)pon the filing of the complaint, the Municipal Judge will conduct his preliminary investigation or preliminary examination to determine the existence of probable cause (only) for (the) purpose of issuance of warrant of arrest."

The allegation that respondent judge is grossly negligent in the performance of his duties, particularly in: (1) the signing of the Jurat dated September 5, 2005 of the Sworn Statement of Baldomido Andres when the same was actually taken on September 6, 2005; and (2) his failure to indicate the date when the statement of Mr. Guerrero was subscribed before him, is devoid of merit.

Respondent judge submitted two (2) copies of the Sworn Statements of Baldomido Andres dated September 5, 2005 and September 6, 2005, which were used in Criminal Cases Nos. 779 and 780, respectively. Again, this Office notes that the complainant is trying to put respondent judge in a bad light. Apparently, complainant attached the second page of the Sworn Statement dated September 5, 2005 to the first page of the Sworn Statement dated September 6, 2005.

As to his failure to indicate the date when the statement of Mr. Guerrero was subscribed and sworn to before him, respondent judge explained that his former stenographer usually indicates the corresponding date immediately after he has signed the papers. However, in this particular instance, the police secured a copy of the affidavit before the clerk indicated the date. Such omission, we believe, does not constitute gross negligence but the respondent judge should be advised to correct this procedure and to personally indicate the date he signs statements taken under oath. This, however, is rendered moot and academic with his compulsory retirement on March 8, 2006.

Likewise unmeritorious is the charge of gross irregularity in the performance of respondent's duties when: (1) he conducted the preliminary investigation long after the complaint was filed in court; (2) he affixed his signature on the jurat of two (2) sworn statements with exactly the same contents; (3) he signed only on August 30, 2005 the jurat of the following; (3.1) both the criminal complaint in Criminal Case No. 780 filed in court on July 14, 2005 and the attached Sinumpaang Salaysay of Rolly Guerrero bearing his statement "BILANG PAGPAPATOTOO, ay ilagda ko ang aking pangalan sa ibaba ng kasulatang ito, na hindi sapilitan kundi kusang loob ngayon ika-12 ng Hunyo 2005, dito sa Palanan, Isabela, Philippines;" (3.2) complaints in Criminal Cases Nos. 778 and 779, which were filed on July 14, 2005; (4) the jurat of the Sinumpaang Salaysay executed by Guerrero on June 2, 2005 was signed by respondent judge only on July 11, 2005 while another Salaysay executed on June 12, 2005 was signed only on August 30, 2005; (5) he issued the subpoenas setting the arraignment and pre-trial on the same day herein complainant filed his counter-affidavit; (6) some subpoenas was without complainant's name indicated thereon; and (7) he issued one subpoena pertaining to two (2) criminal cases.

As earlier discussed, the preliminary investigation conducted by respondent judge is actually a preliminary examination to determine the existence of probable cause for the issuance of a warrant of arrest. On this premise, respondent judge admits that it could have been made long after the complaints were filed simply because the same were filed in court while he was in his official station at Maconacon, Isabela. It is worthy to note that MCTC, Palanan-Dinapigue, Isabela is only an additional court assignment of respondent judge and Palanan could be reached only by motorboat and plane with erratic transportation schedules owing to its geographical location. Hence, the complaints were presented to respondent judge and witnesses were subpoenaed only upon his return from his official station. For emphasis, respondent judge signed the questioned affidavits after the affiants and witnesses were presented to him and the dates these affidavits were subscribed prevail. The failure to change the date of the signing by the affiants may be an oversight on the part of the affiants.

Respondent judge also admits that he signed the two (2) sets of "Salaysay" of Mr. Guerrero dated June 2, 2005 and June 12, 2005 only on June 11, 2005 and August 30, 2005, respectively, in his capacity as the administering officer. The June 2, 2005 "Salaysay" was presented to him before he left for his official station at Maconacon, Isabela while the June 11, 2005 was presented to him on August 30, 2005 when he returned to Palanan. He and his wife went to the United States on June 24, 2005 on vacation leave which explains the late return to Palanan. He explains that it was the police who conducted the investigation and used the same pattern of questioning because the complaint for Malicious Mischief and that for another criminal complaint arose from a single incident. Likewise, the two (2) sworn statements of witness Baldomino Andres prepared by the police were attached to two (2) different complaints, one for Grave Threat and another for Maltreatment. Respondent judge correctly pointed out that if the two affidavits were defective, the complainant may raise the issue on their admissibility during the trial.

Respondent judge explains that the issuance of the subpoenas setting the arraignment and pre-trial on the same day he personally submitted his counter-affidavit was made in order to ensure that complainant was properly notified of the schedule. Complainant even requested that the arraignment and pre-trial be calendared on December 2, 2005 to enable him to engage the services of a lawyer. Respondent's clerk no longer included his name in the subpoena because he was personally informed of the schedule. On another allegation, his name was not included in another subpoena because the same was intended to obtain the sworn statement of the complainant and his witness. Nonetheless, the complainant signed the same subpoena on November 8, 2005. On his last allegation, the rules do not prohibit the issuance of a subpoena pertaining to two (2) criminal cases.

In the same administrative complaint, complainant also prays that the venue of the criminal charges against him be transferred to Metro Manila or Cauayan, Isabela. He is currently requesting APMC, Fort Bonifacio, that he be transferred to Cauayan City. He requests for the transfer of venue of the subject cases due to: (1) the "obvious discrimination and partiality of respondent judge"; and (2) financial reasons. According to him, he is presently assigned in Cebu City. Occasionally, he is assigned in Bohol to join military operations. Boat, plane and bus fares from Bohol to Palanan are very expensive.

This should likewise be denied. Respondent judge has already retired and another judge will hear his case. In addition, financial problem is not among grounds that would justify the change of venue of cases. Under the Constitution, the Supreme Court is vested with the authority to "order a change of venue or place of trial to avoid a miscarriage of justice." (Art. VIII, Sec. 5{4}) "(It) possesses inherent power and jurisdiction to decree that the trial and disposition of a case pending in a Court of First Instance be transferred to another Court of First Instance within the same district whenever the interest of justice and truth so demand, and there are serious and weighty reasons to believe that a trial by the court that originally had jurisdiction over the case would not result in a fair and impartial trial and lead to a miscarriage of justice." (People v. Gutierrez, L-32282-83, November 26, 1970)

However, a change of the place of trial in criminal cases should not be granted for whimsical or flimsy reasons. "The interests of the public require that, to secure the best results and effects in the punishment of crime, it is necessary to prosecute and punish the criminal in the very place, as near as may be, where he committed his crime." (Manila Railroad Co. v. Attorney General, 20 Phil, 523)

RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court are our recommendations that: (1) the complaint against Retired Judge Cesar L. Salazar, MCTC, Palanan-Dinapigue, Isabela be DISMISSED; and (2) the request for change of venue be DENIED for lack of merit.

The Court agrees with the OCA that the administrative case against respondent judge should be dismissed for lack of merit.

It is settled that in administrative proceedings, the burden of substantiating the charges falls on complainant. [1] cralaw The Court has to be shown acts or conduct of the judge clearly indicative of arbitrariness or prejudice before the latter can be branded the stigma of being biased and partial. [2] cralaw Moreover, in the absence of cogent proof, as in this case, bare allegations of misconduct cannot prevail over the presumption of regularity in the performance of official functions. [3] cralaw Complainant is reminded that the Court has recognized "the proliferation of unfounded or malicious administrative or criminal cases against members of the judiciary for purposes of harassment" and thus issued A.M. No. 03-10-01-SC [4] cralaw which took effect on November 4, 2003. [5] cralaw

Considering the foregoing, the Court resolves to ADOPT the recommendation of the Office of the Court Administrator. The complaint against Retired Judge Cesar L. Salazar is DISMISSED for lack of merit. Complainant Alexander Magas' request for change of venue in the criminal cases filed against him is DENIED for lack of merit.

Very truly yours,

(Sgd.) ENRIQUETA ESGUERRA-VIDAL
Clerk of Court

First Division


Endnotes:

[1] cralaw Cortes v. Agcaoili, 355 Phil. 848, 880 (1998), citing Lachica v. Flordeliza , A.M. No MTJ-94-921, March 5, 1996, 254 SCRA 278, 284.

[2] cralaw See Abdula v. Guiani , 382 Phil. 757, 769 (2000).

[3] cralaw Sayson v. Luna, A.M. No. P-04-1829, July 7, 2004, 433 SCRA 502, 505.

[4] cralaw Entitled "RESOLUTION PRESCRIBING MEASURES TO PROTECT MEMBERS OF THE JUDICIARY FROM BASELESS AND UNFOUNDED ADMINISTRATIVE COMPLAINTS."

[5] cralaw The pertinent provisions read:

1. If upon an informal preliminary inquiry by the Office of the Court Administrator, an administrative complaint against any Justice of the Court of Appeals or Sandiganbayan or any Judge of the lower courts filed in connection with a case in court is shown to be clearly unfounded and baseless and intended to harass the respondent, such a finding should be included in the report and recommendation of the Office of the Court Administrator. If the recommendation is approved or affirmed by the Court, the complainant may be required to show cause why he should not be held in contempt of court. If the complainant is a lawyer, he may further be required to show cause why he or she should not be administratively sanctioned as a member of the Bar and as an officer of the court.

2. If the complaint is (a) filed within six months before the compulsory retirement of a Justice or Judge; (b) for an alleged cause of action that occurred at least a year before such filing; and (c) shown prima facie that it is intended to harass the respondent, it must forthwith be recommended for dismissal. If such is not the case, the Office of the Court Administrator must require the respondent to file a comment within ten (10) days from receipt of the complaint, and submit to the Court a report and recommendation not later than thirty (30) days from receipt of the comment. The Court shall act on the recommendation before the date of compulsory retirement of the respondent, or if it is not possible to do so, within six (6) months from such date without prejudice to the release of the retirement benefits less such amount as the Court may order to be withheld, taking into account the gravity of the cause of action alleged in the complaint.


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