Philippine Supreme Court Jurisprudence


Philippine Supreme Court Jurisprudence > Year 2005 > April 2005 Decisions > PCGG v. Sandiganbayan : 151809-12 : April 12, 2005 : J. Tinga : En Banc : Separate Opinion:




PCGG v. Sandiganbayan : 151809-12 : April 12, 2005 : J. Tinga : En Banc : Separate Opinion

PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. NOS. 151809-12. April 12, 2005]

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioner, v. SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG (represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C. TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION, ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC., MANUFACTURING SERVICES AND TRADE CORP., MARANAW HOTELS AND RESORT CORP., NORTHERN TOBACCO REDRYING PLANT, PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P. MENDOZA, Respondents.

SEPARATE OPINION

TINGA, J.:

My vote to grant the petition hinges on the reasons stated hereunder. They pertain to a significant and material dimension to this case which deserves greater illumination.

To sustain the view that Atty. Estelito Mendoza (Atty. Mendoza) should be disqualified as counsel in Civil Case No. 0096, as the dissenters are wont to hold, there should be a clear legal basis that would mandate such disqualification. The dissenters would hold Atty. Mendoza liable for violating Section 6.03 of the Code of Professional Responsibility, while the ponencia disputes the assertion that the provision was indeed transgressed. I maintain that Section 6.03 cannot be made applicable in the present case to Atty. Mendoza, as to do so would be violative of his right to due process.

I have qualms in holding any member of the Bar liable for violating Section 6.03 of the Code of Professional Responsibility, in connection with acts that they may have engaged in as government officials before the enactment of the said Code. In this case, at the time Atty. Mendoza entered the government service he had no idea of the kind of inhibition proposed to be foisted on him currently. Indeed, he is being faulted for representing the respondents in Civil Case No. 0096 notwithstanding the fact that as Solicitor General and in the discharge of his official functions, he had advised the Central Bank on the procedure to bring about the liquidation of General Bank and Trust Company, which was subsequently acquired by the respondents. However, whether it be at the time then Solicitor General Mendoza participated in the process of the dissolution of General Bank in 1977, or at sometime in 1987 when he agreed to represent the respondents, the Code of Professional Responsibility had not yet been promulgated.

The Code of Professional Responsibility was promulgated by the Supreme Court on 21 June 1988.1 Prior to its official adoption, there was no similar official body of rules or guidelines enacted by the Supreme Court other than the provisions on Legal Ethics in the Rules of Court.

I fear it would set a dangerous precedent to hinge Atty. Mendoza's culpability on the Code of Professional Responsibility, as it would effectively imply that the Code of Professional Responsibility has application even as to acts performed prior to its enactment. Our laws frown upon the prospectivity of statutes. Article 4 of the Civil Code declares that "Laws shall have no retroactive effect, unless the contrary is provided. There is no declaration in the Code of Professional Responsibility that gives retroactive effect to its canons and rules. It is settled that the presumption is that all laws operate prospectively absent clear contrary language in the text,2 and that in every case of doubt, the doubt will be resolved against the retroactive operation of laws.3 ςrνll

The Court in Co v. Court of Appeals provided an exhaustive disquisition on the scope of the rule on the prospective application of statutes:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

The principle of prospectivity of statutes, original or amendatory, has been applied in many cases. These include: Buyco v. PNB, 961) 2 SCRA 682 (June 30, 1961), holding that Republic Act No. 1576 which divested the Philippine National Bank of authority to accept back pay certificates in payment of loans, does not apply to an offer of payment made before effectivity of the act; Largado v. Masaganda, et al., 5 SCRA 522 (June 30, 1962), ruling that RA 2613, as amended by RA 3090 on June, 1961, granting to inferior courts jurisdiction over guardianship cases, could not be given retroactive effect, in the absence of a saving clause; Larga v. Ranada, Jr., 64 SCRA 18, to the effect that Sections 9 and 10 of Executive Order No. 90, amending Section 4 of PD 1752, could have no retroactive application; People v. Que Po Lay, 94 Phil. 640, holding that a person cannot be convicted of violating Circular No. 20 of the Central Bank, when the alleged violation occurred before publication of the Circular in the Official Gazette; Baltazar v. C.A., 104 SCRA 619, denying retroactive application to P.D. No. 27 decreeing the emancipation of tenants from the bondage of the soil, and P.D. No. 316 prohibiting ejectment of tenants from rice and corn farmholdings, pending the promulgation of rules and regulations implementing P.D. No. 27; Nilo v. Court of Appeals, 128 SCRA 519, adjudging that RA 6389 which removed "personal cultivation" as a ground for the ejectment of a tenant cannot be given retroactive effect in the absence of a statutory statement for retroactivity; Tac-An v. CA, 129 SCRA 319, ruling that the repeal of the old Administrative Code by RA 4252 could not be accorded retroactive effect; Ballardo v. Borromeo, 161 SCRA 500, holding that RA 6389 should have only prospective application; (See also Bonifacio v. Dizon, 177 SCRA 294 and Balatbat v. CA, 205 SCRA 419).

The prospectivity principle has also been made to apply to administrative rulings and circulars, to wit: ABS-CBN Broasting Corporation v. CTA, Oct. 12, 1981, 108 SCRA 142, holding that a circular or ruling of the Commissioner of Internal Revenue may not be given retroactive effect adversely to a taxpayer; Sanchez v. COMELEC, 193 SCRA 317, ruling that Resolution No. 90-0590 of the Commission on Elections, which directed the holding of recall proceedings, had no retroactive application; Romualdez v. CSC, 197 SCRA 168, where it was ruled that CSC Memorandum Circular No. 29, s. 1989 cannot be given retrospective effect so as to entitle to permanent appointment an employee whose temporary appointment had expired before the Circular was issued.

The principle of prospectivity has also been applied to judicial decisions which, "although in themselves not laws, are nevertheless evidence of what the laws mean,. .. (this being) the reason why under Article 8 of the New Civil Code, 'Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system. .. 4 ςrνll

I believe that there is a greater demand to ward off the retroactive application of the Code of Professional Responsibility for the Code is the source of penal liabilities against its infringers. It is well entrenched that generally, penal laws or those laws which define offenses and prescribe penalties for their violation operate prospectively.5 The Constitution itself bars the enactment of ex-post facto laws.6 I do not think it necessary to flirt with the constitutional issue whether the Code of Professional Responsibility operates as a penal statute within the definition of an ex-post facto law, but I am satisfied with the general rules, affirmed by jurisprudence, that abhor the retroactivity of statutes and regulations such as the Code of Professional Responsibility.

Hence, to impute culpability on the part of Atty. Mendoza, it would be necessary to ascertain whether his accession to represent the respondents violated any binding law or regulation at the time of the engagement. It is but proper to frame the question in such manner, for only then could it be ascertained whether Atty. Mendoza knew or should have known that his professional representation of the respondents was illegal. It would also be unfair to ascribe liability to any lawyer whom, at the time he/she was in government service, was not guided by any definitive rule prescribing the possible subsequent restrictions on the lawyer's professional activity as a consequence of the exercise of public office.

Ostensibly, Atty. Mendoza's actions violated Canon 36 of the Canons of Professional Ethics, which some authorities deemed as a source of legal ethics prior to the Code of Professional Responsibility.7 Canon 36 states:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

36. Retirement from judicial position or public employment

A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity.

A lawyer, having once held public office or having been in the public employ should not, after his retirement, accept employment in connection with any matter he has investigated or passed upon while in such office or employ.

Canon 36 would apparently cover the allegations imputed to Atty. Mendoza. However, a thorough review should first be examined on whether Canon 36 of the Canons of Professional Ethics may be used as legal basis in resolving this case.

The Canons of Professional Ethics originated from the American Bar Association.8 They were adopted by the Philippine Bar Association as its own in 1917 and in 1946.9 There is no denying the high regard enjoyed by the Philippine Bar Association in the legal community in its nearly one hundred years of existence. However, there is also no denying that the Philippine Bar Association, a civic non-profit association,10 is a private entity of limited membership within the Philippine bar. The rules or canons it has adopted are per se binding only on its members, and the penalties for violation of the same could affect only the status or rights of the infringers as members of the association.

At the same time, reference has been had by this Court to the Canons of Professional Ethics in deciding administrative cases against lawyers, especially prior to the adoption of the Code of Professional Ethics. Hence, the belief by some commentators that the said Canons may serve as a source of legal ethics in this country. However, I think it would be grave error to declare that the Canons of Professional Ethics, on their own, serves as an indisputable source of obligations and basis of penalties imposable upon members of the Philippine legal profession. This would violate the long-established constitutional principle that it is the Supreme Court which is tasked with the promulgation of rules governing the admission to the practice of law, as well as the pleading, practice and procedure in all courts.11 The task of formulating ethical rules governing the practice of law in the Philippines could not have been delegated to the Philippine Bar Association by the Supreme Court. Neither could such rules as adopted by the private body be binding on the Supreme Court or the members of the bar.

If provisions of the Canons of Professional Ethics of the Philippine Bar Association have jurisprudentially been enforced, or acknowledged as basis for legal liability by the Supreme Court, they may be recognized as a binding standard imposable upon members of the bar, but not because said Canons or the Philippine Bar Association itself said so, but because the Supreme Court said so. This is keeping in line with the entrenched rule, as evinced by Article 8 of the Civil Code, which states that 'judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system.

Thus, I would be willing to consider Canon 36 as binding on Atty. Mendoza when he deigned to represent the respondents if at such time, this Court had expressly acknowledged Canon 36 as a rule or standard which deserves obeisance by members of the bar. After all, it would only be through such process of judicial recognition that these guidelines adopted by a private entity could be considered as a normative rule compulsory on all practitioners. Unfortunately, no such case exists in Philippine jurisprudence.

It might be possible to concede that this principle embodied under Canon 36 or even as stated in American case law, subsisted within that penumbra of ethical standards from which the Court could have derived a jurisprudential rule had one been called for by a particular case. However, it remains that none such was pronounced by this Court in jurisprudence, and indeed the prohibition under Canon 36 was not prescribed by this Court or by statute as a norm until the enactment of the Code of Professional Responsibility in 21 June 1988. Accordingly, when Atty. Mendoza agreed to represent the respondents, there was no definitive binding rule proscribing him from such engagement or penalizing him for such representation.

I am mindful that what the Court is called upon to decide is whether the Sandiganbayan committed grave abuse of discretion, and not just mere error in fact or law, in denying the motion to disqualify Atty. Mendoza. The absence of a definitive disqualificatory rule that would have guided Atty. Mendoza when he undertook the questioned acts sufficiently justifies the Sandiganbayan's denial of the motion.

We should not render insensate the concerns raised by the minority, arising as they do from an understandable concern that the line dividing the professional activities and the government services rendered by lawyers should remain distinct. Yet the majority likewise demonstrates that there is no unanimity on prevalent legal thought on the matter, and a healthy debate on the issue will result in no harm. Still, the due process dimension, as highlighted by the absence of a definitive rule for which Atty. Mendoza could have been held accountable, proves determinative to my mind. The Court is the enforcer of the constitutional guarantees of due process to all persons, and my vote is but a consequence of this primordial duty.

Endnotes:


1 R. Agpalo, The Code of Professional Responsibility for Lawyers (1st ed., 1991), at 369.

2 R. Agpalo, Statutory Construction (5th ed., 2003), at 355; citing Iburan v. Labes, 87 Phil. 234 (1950); People v. Zeta, 98 Phil. 143 (1955); Castro v. Collector of Internal Revenue, G.R. No. 12174, 28 December 1962, 6 SCRA 886; Commissioner v. Lingayen Gulf Electric Power Co., Inc., 164 SCRA 27 (1988).

3 Id., citing Montilla v. Agustina Corp., 24 Phil. 220 (1913); Cebu Portland Cement Co. v. Collector of Internal Revenue, G.R. No. 20563, 29 October 1968, 25 SCRA 789 (1968).

4 Co v. Court of Appeals, G.R. No. 100776, October 28, 1993.

5 Agpalo, supra note 2, at 357; citing People v. Moran, 44 Phil. 387 (1923).

6 See Article III, Sec. 22, Constitution.

7 See, e.g., G. Malcolm, Legal and Judicial Ethics (1949), at 9.

8 Agpalo, supra note 1, at 381.

9 Ibid.

10 See Juan F. Nakpil & Sons v. Court of Appeals, 228 Phil. 564, 572 (1986).

11 See Section 5(5), Article VIII, Constitution. See also Section 5(5), Article X, 1973 Constitution and Section 13, Article VIII, 1935 Constitution.




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