Philippine Supreme Court Resolutions > Year 2010 > December 2010 Resolutions > [A.C. No. 8626 : December 06, 2010] DATU ANDAL AMPATUAN, SR. AND DATU ANDAL AMPATUAN, JR. V. ATTORNEY RICARDO DIAZ :

Please take notice that the Court, Second Division, issued a Resolution dated 06 December 2010 which reads as follows:

A.C. No. 8626 (Datu Andal Ampatuan, Sr. and Datu Andal Ampatuan, Jr. v. Attorney Ricardo Diaz) - This is a complaint^[1] for disbarment filed by Datu Andal Ampatuan, Sr. and Datu Andal Ampatuan, Jr. against respondent Atty. Ricardo Diaz, Chief of the Counter-Terrorism Unit of the National Bureau of Investigation (NBI), charging him with Grave Misconduct, Oppression and Abuse of Authority.

In his complaint, Datu Andal Ampatuan, Jr. (Andal Jr.) alleges that at about 1:10 o'clock in the afternoon of December 18, 2009, respondent Atty. Ricardo Diaz (Atty. Diaz) and a certain Roel Bolivar (Bolivar), together with a group of NBI men, armed with high-powered guns and in full battle gear, arrived in his detention cell at the NBI headquarters. He was ordered to immediately get dressed because he would be taken to the Department of Justice (DOJ) for the preliminary investigation scheduled for that day. His counsel, Atty. Alfredo Marqueda, Jr., (Atty. Marqueda) insisted that Andal Jr. should remain because he had previously waived his right to appear at the said preliminary investigation and that he was not feeling well. Inspite of that, Atty. Diaz instructed his men to forcibly dress him up while their firearms were pointed at him and his counsel in an attempt to instill fear. They also put a vest on him and steel handcuffs on his hands and, thereafter, bodily chained him like a dog.

Andal Jr. further avers that he witnessed how Atty. Diaz punched Atty. Marqueda in the chest and shoved him away when the latter tried to reason out with the NBI men; that he was maltreated as Atty. Diaz let his men literally drag him out of the NBI detention facility by pulling the chain tied around his body which caused him to stumble several times; that Atty. Diaz denied Atty. Marqueda's request to join his client inside the van which took the group to the DOJ, and even directed his men to prevent said lawyer from boarding the vehicle, thus, depriving him of his right to be represented by counsel of his choice at all times; that during the preliminary investigation, Atty. Diaz intentionally kept him handcuffed, chained and shackled to expose him to humiliation and to be feasted on by the media; that Atty. Diaz did not give him ample security protection and as a result of which, the media practitioners were able to break through the NBI escorts and an irate photographer struck him with his camera that caused a cut on his forehead; and that no help or any medical assistance was offered to him.

As regards the search conducted on February 25, 2010, Andal Jr. alleges that Atty. Diaz abused his authority when, instead of using metal scanners, he ordered his men to destroy the concrete floor of his Petron Gas Station using a jackhammer and a backhoe. The NBI team dug a hole measuring 10 x 20 feet in a futile attempt to find firearms believed to be buried under the ground.

Complainant Datu Andal Ampatuan, Sr. (Andal Sr.), on the other hand, claims that Atty. Diaz displayed arrogance, and committed abuses and excesses in the implementation of the search warrants on February 10, 2010 at his residential compound located in Poblacion, Shariff Aguak, Maguindanao, and even allowed his men to commit irregularities on the occasion thereof; that Atty. Diaz led the team of heavily armed NBI agents and members of the Shariff Aguak Police at 46th Infantry Battalion of the Philippine Army, during the search; that the team roughly entered the gate, headed to different directions inside the residential compound, and simultaneously conducted the search; that complainants' lawyers tried to get copies of the four (4) search warrants only to find out that Atty. Diaz gave strict and specific instruction not to give them any copies of the warrants until after the search had been completed; that Atty. Diaz was harsh and arrogant, shouting at the complainants' lawyers cussing and using profanities unbecoming of a lawyer and a public servant; that Atty. Diaz arrogantly and abusively fired his pistol during the search that caused fear and trauma among the occupants of the residential compound; that Atty. Diaz utilized men in civilian clothes wearing bonnets to cover their faces as diggers and prohibited media practitioners from taking video footage of the search; that the group desecrated the graves of his deceased relatives when they dug big holes in the cemetery grounds inside the compound; and that the team, however, failed to find any firearm or ammunition within the subject residential compound.

On February 23, 2010, Atty. Diaz held another search at Andal Sr.'s residence located in Barangay Bagong, Shariff Aguak, Maguindanao. Andal Sr. complains that Atty. Diaz used men in civilian attire with bonnets covering their faces and destroyed a bathtub in one of the restrooms of the house. He then ordered them to extend the conduct of the search to nearby structures not covered by the warrant. Andal Sr. stresses that said search yielded no positive result as there were no firearms found.

Andal Sr. further avers that a second search was conducted by Atty. Diaz and his men on February 26, 2010 at his residential compound to look for an alleged tunnel leading to the office of the Governor of Autonomous Region of Muslim Mindanao (ARMM). Atty. Noor Hafinullah M. Abdullah (Atty. Abdullah), one of their lawyers, pleaded with the search team to first use a scanner to locate the entry and exit points of the alleged tunnel before digging to avoid unnecessary damage to the property. Atty. Abdullah's plea was ignored and Atty. Diaz and his team insisted that they knew the location of the tunnel and started the excavation at the back of the mosque destroying the tiles of the structure which greatly disturbed the prayers and ceremony being held inside for the celebration of Aramura Jadid. The subject tunnel was never found.

Complainants posit that the foregoing acts and conducts of Atty. Diaz indubitably constitute violations of Canons 1, 7 and 8 of the Code of Professional Responsibility, sufficient to warrant his disbarment and the imposition of appropriate administrative sanctions against him.

In his Comment,^[2] Atty. Diaz vehemently denies the material allegations in the complaint and claims that all accusations hurled at him are baseless and unfounded. He avers that, as then Chief of the Counter-Terrorism Unit, he was ordered on November 25, 2009 by former NBI Director, Nestor Mantaring, to proceed to General Santos and assist the agents of the ARRM and the NBI Office in Koronadal City in the investigation of the bloody killing of 57 innocent men and women on November 23, 2009 known as the "Maguindanao Massacre." His unit was tasked to gather witnesses and take their testimonies in order to shed light on the identity of the culprits in the dastardly deed. Later, his unit was directed to provide additional security at the NBI jail where Andal Jr. was subsequently detained after being charged on inquest. He was one of the prosecution witnesses presented during the hearing of Andal Jr.'s motion for bail.

Anent the December 18, 2009 incident, Atty. Diaz explains that he and his unit took Andal Jr. from his NBI detention cell and escorted him to the DOJ by virtue of a subpoena duly issued by the panel of prosecutors handling the preliminary investigation of the case docketed as I.S. No. XVI-INV-09L-00816 for Multiple Murder. He argues that he cannot be faulted for the untoward incident where Andal Jr. was harmed after he was ganged up by irate media practitioners. During the security briefing, he was assured that the media men would not be allowed to stay near the door of the multipurpose building but on the last minute, then Secretary of the DOJ, Agnes Devanadera, permitted the media men to stay in the prohibited area. Not even the combined efforts of the PNP of Manila, DOJ security personnel and the six armed NBI agents tasked to secure Andal Jr. were enough to control the angry mob who rushed towards Andal Jr. shortly after he alighted from the vehicle.

Atty. Diaz submits that the search warrants were implemented in an orderly and peaceful manner in the presence of Ampatuan family members and complainants' lawyers. He denies having fired a gun during the enforcement of said search warrants and counters that it was the residents of the Ampatuan compound and their lawyers who were harassing the NBI agents in their futile attempt to unduly delay, frustrate and defeat the implementation of the warrants. He further alleges that he declined to be interviewed by the ABS-CBN media personnel during the conduct of the search because he believed that it is only in drug cases that the presence of the media is required and not in firearms cases. He believes that the filing of the complaint for disbarment is intended to harass him and to satisfy the complainants' lust for vengeance against him who, in one way or another, has contributed to their present detention and prosecution.

The sole issue to be resolved here is whether or not there is a showing of a prima facie case against Atty. Diaz warranting his disbarment on the grounds of gross misconduct, oppression and abuse of authority.

The Court rules in the negative.

We have scrutinized the records and find that evidence is wanting to warrant the imposition of any disciplinary sanction against Atty. Diaz.

It is axiomatic that he who alleges a fact has the onus of proving the same. In disbarment proceedings, the burden of proof rests upon the complainant. In Danilo M. Concepcion v. Atty, Daniel P. Fandino, Jr.,^[3] citing Martin v. Felix,^[4] the Court wrote:

Significantly, this Court has, time and again, declared a conservative and cautious approach to disbarment proceedings like the instant case....

In disbarment proceedings, the burden of proof rests upon the complainant, and for the court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof. Considering the serious consequence of the disbarment or suspension of a member of the Bar, this Court has consistently held that clear preponderant evidence is necessary to justify the imposition of the administrative penalty.

In this regard, the Andal Jr. and Andal Sr. failed to meet the required standard. Thus, absent a showing of clear preponderant evidence to sustain the charges against Atty. Diaz, the complaint must be dismissed.

Atty. Diaz's actuations during the December 18, 2009 incident can hardly be considered as gross misconduct. It appears that he and his unit were merely performing their functions as custodians of Andal Jr. when they brought him to the DOJ to appear before a preliminary hearing in compliance with the subpoena issued by a panel of prosecutors assigned in the investigation of the case, LS. No. XVI-INV-09L-00816, for Multiple Murder. No malice or bad faith can be attributed to Atty. Diaz for carrying out the directive contained in the subpoena. There is no showing that the purpose for bringing Andal Jr. out from his NBI detention cell was to have him humiliated, jeered at or exposed to harm. No act of oppression can be deduced from the fact that Andal Jr. was put in steel handcuffs and chains before he was brought to the DOJ. As aptly explained by respondent, this was done as a standard procedure for all detained persons charged with heinous and violent crimes. If the intention of Atty. Diaz was to harm Andal Jr. in any way, he should have abandoned outright all security measures and preparations previously made.

Andal Jr.'s bare allegations cannot be considered as evidence. In the absence of contrary evidence, what will prevail is the presumption that the respondent has regularly performed his duty in accordance with his oath.^[5]

The Court finds it hard to believe Andal Sr.'s assertion that Atty. Diaz abused his authority during the enforcement of the search warrants. The Court cannot fathom how Atty. Diaz could have committed the alleged excesses and abuses when the ABS CBN media practitioners were just outside the Ampatuan compound waiting to get a news scoop out of the event. Surely, he would not dare commit any irregularity for this would pose a major setback to the efforts of the government in gathering evidence to pin down those criminally responsible in the "Maguindanao Massacre." Nowhere in the record does it show that the Ampatuan residents or the Ampatuan lawyers then present ever called the attention of the media regarding certain abuses committed by respondent while the search was ongoing or immediately thereafter, when they could have easily done so. Indeed, the Court finds it strange that the Ampatuans did not institute any criminal action against Atty. Diaz for violation of Article 129 of the Revised Penal Code. In light of these observations, the Court is more inclined to believe that the search warrants were served and implemented in an orderly manner, devoid of any abuses and unnecessary severity in their execution.

We are more inclined to believe the assertion of Atty. Diaz that the complaint was instituted as a form of harassment against him. Complainants' motives in instituting the charges are not beyond suspicion. Considering respondent's participation in their present detention and prosecution, it is safe to assume that complainants have indeed an axe to grind against him.

Disbarment is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be exercised with great caution, only for the most imperative reasons and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and member of the bar.^[6] The facts and evidence obtaining in the case at bench do not establish that Atty. Diaz failed to live up to his duties as a lawyer in consonance with the strictures of the lawyer's oath and the Code of Professional Responsibility. Accordingly, the charges of gross misconduct, oppression and abuse of authority against him must fail.

WHEREFORE, finding no prima facie case, the complaint for disbarment against respondent Atty. Ricardo Diaz is DISMISSED.

Endnotes:

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^[1] Rollo,pp. 1-10.

^[2] Id. at 46-57.

^[3] 389 Phil 474, 480-481 (2000).

^[4] 246 Phil. 113, 133-134 (1988); Arcadio v. Ylagan, 227 Phil. 157, 164 (1986).

^[5] Catherine Joie P. Vitug v.Atty. Diosdado M. Rongcal, A.C. No. 6313, Sept. 7, 2006, 501 SCRA 166, 182.

^[6] Remberto Kara-an v. Atty. Reynaldo Pineda, AC. No. 4306, March 28, 2007, 519 SCRA143, 146.