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[B.M. No. 1222.  February 4, 2004]

Re: 2003 BAR EXAMINATIONS

R E S O L U T I O N

PER CURIAM:

On 22 September 2003, the day following the bar examination in Mercantile Law, Justice Jose C. Vitug, Chairman of the 2003 Bar Examinations Committee, was apprised of a rumored leakage in the examination on the subject. After making his own inquiries, Justice Vitug reported the matter to Chief Justice Hilario G. Davide, Jr., and to the other members of the Court, recommending that the bar examination on the subject be nullified and that an investigation be conducted forthwith. On 23 September 2003, the Court adopted the recommendation of Justice Vitug, and resolved to nullify the examination in Mercantile Law and to hold another examination on 04 October 2003 at eight o’clock in the evening (being the earliest available time and date) at the De La Salle University, Taft Avenue, Manila. The resolution was issued without prejudice to any action that the Court would further take on the matter.

Following the issuance of the resolution, the Court received numerous petitions and motions from the Philippine Association of Law Schools and various other groups and persons, expressing agreement to the nullification of the bar examinations in Mercantile Law but voicing strong reservations against the holding of another examination on the subject. Several reasons were advanced by petitioners or movants, among these reasons being the physical, emotional and financial difficulties that would be encountered by the examinees, if another examination on the subject were to be held anew. Alternative proposals submitted to the Court included the spreading out of the weight of Mercantile Law among the remaining seven bar subjects, i.e., to determine and gauge the results of the examinations on the basis only of the performance of the examinees in the seven bar subjects. In a resolution, dated 29 September 2003, the Court, finding merit in the submissions, resolved to cancel the scheduled examination in Mercantile Law on 04 October 2003 and to allocate the fifteen percentage points among the seven bar examination subjects. In the same resolution, the Court further resolved to create a Committee composed of three retired members of the Court that would conduct a thorough investigation of the incident subject of the 23 September 2003 resolution.

In a resolution, dated 07 October 2003, the Court adopted the computation in the allocation of the fifteen percentage points for Mercantile Law among the remaining seven bar examination subjects, to wit:

Subject            Original            Adjusted                      Relative           Adjusted                        Percentage     Percentage                 Weight             Relative                        Weight             Weight                                                Weight

Political andInternational   Law              15%                 17.647%                          3                  3.53%

Labor and   SocialLegislation       10%                 11.765%                          2                  2.35%

Civil law           15%                 17.647%                          3                  3.53%

Taxation          10%                 11.765%                          2                  2.35%

Criminal law    10%                 11.765%                          2                  2.35%

Remedial

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Law                 20%                 23.529%                          4                  4.71%

Legal Ethicsand Practical                          Exercises        5%                       5.882%                           1                  1.18%

                                       100%                                                  20%

In another resolution, dated 14 October 2003, the Court designated the following retired Associate Justices of the Supreme Court to compose the Investigating Committee:

Chairman:     Justice Carolina C. Griño-Aquino

Members:     Justice Jose A.R. Melo

Justice Vicente V. Mendoza

The Investigating Committee was tasked to determine and identify the source of leakage, the parties responsible therefor or who might have benefited therefrom, recommend sanctions against all those found to have been responsible for, or who would have benefited from, the incident in question and to recommend measures to the Court to safeguard the integrity of the bar examinations.

On 15 January 2004, the Investigating Committee submitted its report and recommendation to the Court, herein reproduced in full; thus -

“In the morning of September 21, 2003, the third Sunday of the 2003 bar examinations, the examination in commercial law was held in De la Salle University on Taft Avenue, Manila, the venue of the bar examinations since 1995. The next day, the newspapers carried news of an alleged leakage in the said examination.[1]

“Upon hearing the news and making preliminary inquiries of his own, Justice Jose C. Vitug, chairman of the 2003 Bar Examinations Committee, reported the matter to the Chief Justice and recommended that the examination in mercantile law be cancelled and that a formal investigation of the leakage be undertaken.

“Acting on the report and recommendation of Justice Vitug, the Court, in a resolution dated September 23, 2003, nullified the examination in mercantile law and resolved to hold another examination in that subject on Saturday, October 4, 2003 at eight o’clock in the evening (being the earliest available time and date) at the same venue. However, because numerous petitions, protests, and motions for reconsideration were filed against the retaking of the examination in mercantile law, the Court cancelled the holding of such examination. On the recommendation of the Office of the Bar Confidant, the Court instead decided to allocate the fifteen (15) percentage points for mercantile law among the seven (7) other bar examination subjects (Resolution dated October 7, 2003).

“In a Resolution dated September 29, 2003, the Supreme Court created an Investigating Committee composed of three (3) retired Members of the Court to conduct an investigation of the leakage and to submit its findings and recommendations on or before December 15, 2003.

“The Court designated the following retired Associate Justices of the Supreme Court to compose the Committee:

Chairman:     Justice CAROLINA GRIÑO-AQUINO

Members:     Justice JOSE A. R. MELO

Justice VICENTE V. MENDOZA

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“The Investigating Committee was directed to determine and identify the source of the leakage, the parties responsible therefor and those who benefited therefrom, and to recommend measures to safeguard the integrity of the bar examinations.

“The investigation commenced on October 21, 2003 and continued up to November 7, 2003. The following witnesses appeared and testified at the investigation:

1.       Associate Justice Jose C. Vitug, chairman of the 2003 Bar Examinations Committee;

2.       Atty. Marlo Magdoza-Malagar, law clerk in the office of Justice Vitug

3.       Atty. Marcial O. T. Balgos, examiner in mercantile law;

4.       Cheryl Palma, private secretary of Atty. Balgos;

5.       Atty. Danilo De Guzman, assistant lawyer in the firm of Balgos & Perez;

6.       Atty. Enrico G. Velasco, managing partner of Balgos & Perez;

7.       Eduardo J. F. Abella, reviewer in commercial law at the Lex Review Center;

8.       Silvestre T. Atienza, office manager of Balgos & Perez;

9.       Reynita Villasis, private secretary of Atty. De Guzman;

10.     Ronan Garvida, fraternity brother of Atty. De Guzman;

11.     Ronald F. Collado, most illustrious brother of the Beta Sigma Lambda Fraternity;

12.     Jovito M. Salonga, Asst. Division Chief of Systems Development for Judicial Application, MlSO;

The Committee held nine (9) meetings - six times to conduct the investigation and three times to deliberate on its report.

“ASSOCIATE JUSTICE JOSE C. VITUG, chairman of the Bar Examinations Committee, testified that on Monday morning, September 22, 2003, the day after the Bar examination in mercantile or commercial law, upon arriving in his office in the Supreme Court, his secretary,[2] Rose Kawada, informed him that one of the law clerks, Atty. Marlo Magdoza-Malagar, told her that a friend of hers named Ma. Cecilia Delgado-Carbajosa, a bar examinee from Xavier University in Cagayan de Oro City, who was staying at the Garden Plaza Hotel in Paco, confided to her that something was wrong with the examination in mercantile law, because previous to the examination, i.e., on Saturday afternoon, the eve of the examination, she received a copy of the test questions in that subject. She did not pay attention to the test questions because no answers were provided, and she was hard-pressed to finish her review of that subject, using other available bar review materials, of which there were plenty coming from various bar review centers.

“However, upon perusing the questions after the examinations, Cecilia noticed that many of them were the same questions that were asked in the just-concluded-examination.

“Justice Vitug requested Marlo to invite her friend to his office in the Supreme Court, but Carbajosa declined the invitation. So, Justice Vitug suggested that Marlo and Rose invite Carbajosa to meet them at Robinson’s Place, Ermita. She agreed to do that.

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“Cecilia Carbajosa arrived at Robinson’s Place at the appointed time and showed the test questions to Rose and Marlo. Rose obtained a xerox copy of the leaked questions and compared them with the bar questions in mercantile law. On the back of the pages, she wrote, in her own hand, the differences she noted between the leaked questions and the bar examination questions.

“Rose and Marlo delivered the copy of the leaked questions to Justice Vitug who compared them with the bar examination questions in mercantile law. He found the leaked questions to be the exact same questions which the examiner in mercantile law, Attorney Marcial O. T. Balgos, had prepared and submitted to him as chairman of the Bar Examinations Committee. However, not all of those questions were asked in the bar examination. According to Justice Vitug, only 75% of the final bar questions were questions prepared by Atty. Balgos; 25% prepared by Justice Vitug himself, were included in the final bar examination. The questions prepared by Justice Vitug were not among the leaked test questions.

“Apart from the published news stories about the leakage, Chief Justice Hilario G. Davide, Jr. and Justice Vitug received, by telephone and mail, reports of the leakage from Dean Mariano F. Magsalin, Jr. of the Arellano Law Foundation (Exh. H) and a certain Dale Philip R. De los Reyes (Exh. B -B-3), attaching copies of the leaked questions and the fax transmittal sheet showing that the source of the questions was Danny De Guzman who faxed them to Ronan Garvida on September 17, 2003, four days before the examination in mercantile law on September 21, 2003 (Exh. B-1).

“ATTORNEY MARLO MAGDOZA-MALAGAR was subpoenaed by the Committee. She identified the copy of the leaked questions that came from Cecilia Carbajosa (Exh. A). She testified that, according to Carbajosa, the latter received the test questions from one of her co-bar reviewees staying, like her, at the Garden Plaza Hotel in Paco, and also enrolled in the review classes at the Lex Review Center at the corner of P. Faura Street and Roxas Boulevard, Ermita. She did not pay for the hand-out because the Lex Review Center gives them away for free to its bar reviewees.

“ATTORNEY MARCIAL O. T. BALGOS, 71 years of age, senior partner in the law firm of BALGOS AND PEREZ with offices in Rm. 1009 West Tektite Tower, Exchange Road, Ortigas Center, Pasig City, testified that in November 2002, Justice Jose C. Vitug, as chair of the Committee on the 2003 Bar Examinations, invited him to be the examiner in commercial law. He accepted the assignment and almost immediately began the preparation of test questions on the subject. Using his personal computer in the law office, he prepared for three consecutive days, three (3) sets of test questions which covered the entire subject of Mercantile Law (pp. 3-5, tsn, Oct. 24, 2003). As he did not know how to prepare the questionnaire in final form, he asked his private secretary, Cheryl Palma, to format the questions (p. 13, tsn, Oct. 24, 2003).  And, as he did not know how to print the questionnaire, he likewise asked Cheryl Palma to make a print-out (Id., pp. 14-15). All of this was done inside his office with only him and his secretary there. His secretary printed only one copy (Id., p. 15). He then placed the printed copy of the test questions, consisting of three sets, in an envelope which he sealed, and called up Justice Vitug to inform him that he was bringing the questions to the latter’s office that afternoon. However, as Justice Vitug was leaving his office shortly, he advised Atty. Balgos to give the sealed envelope to his confidential assistant who had been instructed to keep it. When Atty. Balgos arrived in the office of Justice Vitug, he was met by Justice Vitug’s confidential assistant to whom he entrusted the sealed envelope containing the test questions (pp. 19-26, tsn, Oct. 24, 2003).

“Atty. Balgos admitted that he does not know how to operate a computer except to type on it. He does not know how to open and close his own computer which has a password for that purpose. In fact, he did not know, as he still does, the password. It is his secretary, Cheryl Palma, who opened and closed his computer for him (p. 45, tsn, Oct. 24, 2003).

“Atty. Balgos testified that he did not devise the password himself. It was Cheryl Palma who devised it (Id., p. 71).

“His computer is exclusively for his own use. It is located inside his room which is locked when he is not in the office. He comes to the office every other day only.

“He thought that his computer was safely insulated from third parties, and that he alone had access to it. He was surprised to discover, when reports of the bar leakage broke out, that his computer was in fact interconnected with the computers of his nine (9) assistant attorneys (tsn, pp. 30,45). As a matter of fact, the employees - Jovito M. Salonga and Benjamin R. Katly - of the Court’s Management Information Systems Office (MISO) who, upon the request of Atty. Balgos, were

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directed by the Investigating Committee to inspect the computer system in his office, reported that there were 16, not 9, computers connected to each other via Local Area Network (LAN) and one (1) stand-alone computer connected to the internet (Exh. M). Atty. Balgos’ law partner, former Justice Secretary Hernando Perez, also had a computer, but Perez took it away when he became the Secretary of Justice.

“The nine (9) assistant attorneys with computers, connected to Attorney Balgos’ computer, are:

1.       Zorayda Zosobrado (she resigned in July 2003)

2.       Claravel Javier

3.       Rolynne Torio

4.       Mark Warner Rosal

5.       Charlynne Subia

6.       Danilo De Guzman (resigned on October 22, 2003 [Exh. D])

7.       Enrico G. Velasco, managing partner

8.       Concepcion De los Santos

9.       Pamela June Jalandoni

“Upon learning from Justice Vitug of the leakage of the bar questions prepared by him in mercantile law, Atty. Balgos immediately called together and questioned his office staff. He interrogated all of them except Atty. Danilo De Guzman who was absent then. All of them professed to know nothing about the bar leakage.

“He questioned Silvestre Atienza, the office manager, Atienza is only a second year law student at MLQU. But he is an expert in installing and operating computers. It was he and/or his brother Gregorio who interconnected the computers in the law office, including Attorney Balgos’ computer, without the latter’s knowledge and permission.

“Atienza admitted to Attorney Balgos that he participated in the bar operations or ‘bar ops’ of the Beta Sigma Lambda law fraternity of which he is a member, but he clarified that his participation consisted only of bringing food to the MLQU bar examinees (Tsn, pp. 46-47, Oct. 24, 2003).

“The next day, Attorney Balgos questioned Attorney Danilo De Guzman, also a member of the Beta Sigma Lambda fraternity, FEU chapter. De Guzman admitted to him that he downloaded the test questions from Attorney Balgos’ computer and faxed a copy to a fraternity brother. Attorney Balgos was convinced that De Guzman was the source of the leakage of his test questions in mercantile law (Tsn, p. 52, Oct. 24, 2003).

“Attorney Balgos prepared a COMPARISON (Exh. E) of the juxtaposed final bar questions and his proposed test questions, with marginal markings made by Justice Vicente V. Mendoza (Ret.), indicating whether the questions are similar: (S); or different: (D), together with the percentage points corresponding to each question. On the basis of this comparative table and Atty. Balgos’ indications as to which questions were the same or different from those given in the final questionnaire, Justice Mendoza computed the credit points contained in the proposed leaked questions. The proposed questions constituted 82% of the final bar questions. Attached to this Report as Annex A is the comparative table and the computation of credit points marked as Exh. E-1.

“CHERYL PALMA, 34 years old, private secretary of Attorney Balgos for the past six years, testified that she did not type the test questions. She admitted, however, that it was she who formatted the questions and printed one copy as directed by her employer. She confirmed Atty. Balgos’ testimony regarding her participation in the operation of his

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personal computer. She disclosed that what appears in Atty. Balgos’ computer can be seen in the neighborhood network if the other computers are open and not in use; that Silvestre Atienza of the accounting section, can access Atty. Balgos’ computer when the latter is open and not in use.

“ATTORNEY ENRICO VELASCO, managing partner of the firm, testified that on October 16, 2003, he sent De Guzman a memo (Exh. C) giving him ‘72 hours to explain in writing why you should not be terminated for causing the Firm an undeserved condemnation and dishonor because of the leakage aforesaid.’

“On October 22, 2003, De Guzman handed in his resignation ‘effective immediately.’ He explained that:

‘Causing the firm, its partners and members to suffer from undeserved condemnation and humiliation is not only farthest from, but totally out of, my mind. It is just unfortunate that the incident subject matter of your memorandum occurred. Rest assured, though, that I have never been part of any deliberate scheme to malign the good reputation and integrity of the firm, its partners and members.’ (Exh. D)

“DANILO DE GUZMAN testified that he joined Balgos & Perez in April 2000. He obtained his LLB degree from FEU in 1998. As a student, he was an awardee for academic excellence. He passed the 1998 bar examinations with a grade of 86.4%. In FEU, he joined the Beta Sigma Lambda law fraternity which has chapters in MLQU, UE and MSU (Mindanao State University). As a member of the fraternity, he was active during bar examinations and participated in the fraternity’s ‘bar ops.’

“He testified that sometime in May 2003, when he was exploring Atty. Balgos’ computer, (which he often did without the owner’s knowledge or permission), to download materials which he thought might be useful to save for future use, he found and downloaded the test questions in mercantile law consisting of 12 pages. He allegedly thought they were quizzers for a book that Atty. Balgos might be preparing. He saved them in his hard disk.

“He thought of faxing the test questions to one of his fraternity ‘brods,’ a certain Ronan Garvida who, De Guzman thought, was taking the 2003 bar examinations. Garvida is also a law graduate from FEU. He had taken the 2002 bar examinations, but did not pass.

“On September 17, 2003, four days before the mercantile law bar examination, De Guzman faxed a copy of the 12-page-test questions (Exhs. I, I-1, I-2, I-3) to Garvida because earlier he was informed by Garvida that he was retaking the bar examinations. He advised Garvida to share the questions with other ‘Betan’ examinees. He allegedly did not charge anything for the test questions. Later, after the examination was over, Garvida ‘texted’ (sent a text message on his cell phone) him (De Guzman), that he did not take the bar examination.

“Besides Garvida, De Guzman faxed the mercantile law bar questions to another fraternity brother named Arlan (surname unknown), through Reynita (Nanette) Villasis, his secretary (Tsn, pp. 20-28, Oct. 29, 2003). But he himself faxed the questions to still another ‘brod’ named Erwin Tan who had helped him during the ‘bar ops’ in 1998 when he (De Guzman) took the bar examinations (Id., p. 28). He obtained the cell phone numbers of Arlan and Erwin Tan from Gabby Tanpiengco whom he informed by text message, that they were ‘guide questions,’ not tips, in the mercantile law examination.

“When he was confronted by Attorney Velasco on Wednesday after the examination, (news of the leakage was already in all the newspapers), De Guzman admitted to Attorney Velasco that he faxed the questions to his fraternity brothers, but he did not reveal where he got the test questions.

“De Guzman received a text message from Erwin Tan acknowledging that he received the test questions. However, Erwin informed him that the questions were ‘kalat na kalat’ (all over the place) even if he did not share them with others (Tsn, pp. 54-55, Oct. 29, 2003).

“De Guzman also contacted Garvida who informed him that he gave copies of the test questions to Betans Randy Iñigo and James Bugain.

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“Arlan also ‘texted’ De Guzman that almost all the questions were asked in the examination. Erwin Tan commented that many of the leaked questions were asked in the examination, ‘pero hindi exacto; mi binago’ (they were not exactly the same; there were some changes).

“De Guzman tried to text Garvida, but he received no response.

“De Guzman disclosed that he learned how to operate a computer from Silvestre Atienza, the office manager, and through self-study, by asking those who are knowledgeable on computers. He has been using computers since 1997, and he bought his own computer in 2001, a Pentium 3, which he uses at home.

“REYNITA VILLASIS, the 36-year-old legal secretary of Attorney De Guzman, submitted her affidavit (Exh. F) and orally affirmed her participation in the reproduction and transmittal by fax of the leaked test questions in mercantile law to Ronan Garvida and Arlan, as testified by De Guzman.

“RONAN GARVIDA, appeared before the Investigating Committee in compliance with the subpoena that was issued to him. Garvida graduated from FEU College of Law in 2000. He is about 32 years of age. While still a student in 1998, he was afflicted with multiple sclerosis or MS, a disease of the nervous system that attacks the nerve sheaths of the brain and spinal cord. It is a chronic disabling disease although it may have periods of remission. It causes its victim to walk with erratic, stiff and staggering gait; the hands and fingers may tremble in performing simple actions; the eyesight can be impaired, and speech may be slow and slurred (p. 737, Vol. 2, Reader’s Digest Medical Encyclopedia, 1971 Ed., compiled by Benjamin F. Miller, M.D.). All these symptoms were present when Garvida testified before the Committee on November 6, 2003 to answer its questions regarding his involvement in the leakage of the examiner’s test questions in mercantile law.

“Garvida testified that when he was a freshman at FEU, he became a member of the Beta Sigma Lambda fraternity where he met and was befriended by Attorney De Guzman who was his senior by one and a half years. Although they had been out of touch since he went home to the province on account of the recurrence of his illness, De Guzman was able [to] get this cell phone number from his compadre, Atty. Joseph Pajara. De Guzman told Garvida that he was faxing him ‘possible questions in the bar examination in mercantile law.’ Because the test questions had no answers, De Guzman stressed that they were not ‘tips’ but only ‘possible test questions.’

“Garvida had intended to take the 2003 bar examinations. He enrolled in the Consortium Review Center in FEU, paying P10,000.00 as enrollment fee. However, on his way to the Supreme Court to file his application to take the bar examination, he suffered pains in his wrist - symptoms that his MS had recurred. His physician advised him to go to the National Orthopedic Hospital in Quezon City for treatment. This he did.

“He gave up his plan to take the 2003 bar examinations. Nevertheless, he continued to attend the review classes at the Consortium Review Center because he did not want to waste completely the P10,000-enrollment fee that he paid for the review course (‘Nahihinayang ako’). That was presumably why De Guzman thought that Garvida was taking the bar exams and sent him a copy of the test questions in mercantile law.

“Upon receipt of the test questions, Garvida faxed a copy to his ‘brod’ Randy Iñigo who was reviewing at the Consortium Review Center. Randy photocopied them for distribution to other fraternity brods. Some of the brods doubted the usefulness of the test questions, but Randy who has a high regard for De Guzman, believed that the questions were ‘tips.’ Garvida did not fax the questions to any other person than Randy Iñigo. He allegedly did not sell the questions to Randy. ‘I could not do that to a brod,’ he explained.

“In view of the fact that one of the copies of the leaked test questions (Exh. H) bore on the left margin a rubber stamp composed of the Greek initials ‘BEA-MLQU,’ indicating that the source of that copy was the Beta Sigma Lambda chapter at MLQU, the Committee subpoenaed Ronald Collado, the Most Illustrious Brother of the Beta Sigma Lambda fraternity of MLQU.

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“RONALD COLLADO is a senior law student at the MLQU. He admitted that his fraternity conducted ‘Bar Ops’ for the 2003 bar exams. Bar Ops are the biggest activity of the fraternity every year. They start as soon as new officers of the fraternity are elected in June, and they continue until the bar examinations are over. The bar operations consist of soliciting funds from alumni brods and friends to be spent in reproducing bar review materials for the use of their ‘barristers’ (bar candidates) in the various review centers, providing meals for their ‘brod’-barristers on examination days; and to rent a ‘bar site’ or place near De la Salle University where the examinees and the frat members can convene and take their meals during the break time. The Betans’ bar site for the 2003 bar examinations was located on Leon Guinto Street, Malate. On September 19 and 21, before [the] start of the examination, Collado’s fraternity distributed bar review materials for the mercantile law examination to the examinees who came to the bar site. The test questions (Exh. H) were received by Collado from a brod, Alan Guiapal, who had received them from Randy Iñigo.

“Collado caused 30 copies of the test questions to be printed with the logo and initials of the fraternity (BEA-MLQU) for distribution to the 30 MLQU examinees taking the bar exams. Because of time constraints, frat members were unable to answer the test questions despite the clamor for answers, so, they were given out ‘as is’ - without answers.

“DEAN EDUARDO J. F. ABELLA of the Jose Rizal University law school in Mandaluyong City, was the reviewer in Mercantile Law and Practical Exercises at the Lex Review Center which is operated by the Lex Review & Seminars Inc., of which Dean Abella is one of the incorporators. He learned about the leakage of test questions in mercantile law when he was delivering the pre-week lecture on Legal Forms at the ArellanoUniversity. The leaked questions were shown to him by his secretary, Jenylyn Domingo, after the mercantile law exam. He missed the Saturday lecture in mercantile law because he was suffering from a touch of flu. He gave his last lecture on the subject on Wednesday or Thursday before the exam. He denied having bought or obtained and distributed the leaked test questions in Mercantile Law to the bar reviewees in the Lex Review Center.

“F I N D I N G S

“The Committee finds that the leaked test questions in Mercantile Law were the questions which the examiner, Attorney Marcial O. T. Balgos, had prepared and submitted to Justice Jose C. Vitug, as chairman of the 2003 Bar Examinations Committee. The questions constituted 82% of the questions asked in the examination in Mercantile Law in the morning of September 21, 2003, Sunday, in some cases with slight changes which were not substantial and in other cases exactly as proposed by Atty. Balgos. Hence, any bar examinee who was able to get hold of the leaked questions before the mercantile law examination and answered them correctly, would have been assured of passing the examination with at least a grade of 82%!

“The circumstance that the leaked test questions consisted entirely of test questions prepared by Atty. Balgos, proves conclusively that the leakage originated from his office, not from the Office of Justice Vitug, the Bar Examinations Chairman.

“Atty. Balgos claimed that the leaked test questions were prepared by him on his computer. Without any doubt, the source of the leaked test questions was Atty. Balgos’ computer. The culprit who stole or downloaded them from Atty. Balgos’ computer without the latter’s knowledge and consent, and who faxed them to other persons, was Atty. Balgos’ legal assistant, Attorney Danilo De Guzman, who voluntarily confessed the deed to the Investigating Committee. De Guzman revealed that he faxed the test questions, with the help of his secretary Reynita Villasis, to his fraternity ‘brods,’ namely, Ronan Garvida, Arlan (whose surname he could not recall), and Erwin Tan.

“In turn, Ronan Garvida faxed the test questions to Betans Randy Iñigo and James Bugain.

“Randy Iñigo passed a copy or copies of the same questions to another Betan, Alan Guiapal, who gave a copy to the MLQU-Beta Sigma [Lambda’s] Most Illustrious Brother, Ronald F. Collado, who ordered the printing and distribution of 30 copies to the MLQU’s 30 bar candidates.

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“Attorney Danilo De Guzman’s act of downloading Attorney Balgos’ test questions in mercantile law from the latter’s computer, without his knowledge and permission, was a criminal act of larceny. It was theft of intellectual property; the test questions were intellectual property of Attorney Balgos, being the product of his intellect and legal knowledge.

“Besides theft, De Guzman also committed an unlawful infraction of Attorney Balgos’ right to privacy of communication, and to security of his papers and effects against unauthorized search and seizure - rights zealously protected by the Bill of Rights of our Constitution (Sections 2 and 3, Article III, 1987 Constitution).

“He transgressed the very first canon of the lawyers’ Code of Professional Responsibility which provides that ‘[a] lawyer shall uphold the Constitution, obey the laws of the land, and promote respect for law and legal processes.’

“By transmitting and distributing the stolen test questions to some members of the Beta Sigma Lambda Fraternity, possibly for pecuniary profit and to given them undue advantage over the other examiners in the mercantile law examination, De Guzman abetted cheating or dishonesty by his fraternity brothers in the examination, which is violative of Rule 1.01 of Canon 1, as well as Canon 7 of the Code of Professional Responsibility for members of the Bar, which provide:

Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct

Canon 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.

“De Guzman was guilty of grave misconduct unbecoming a member of the Bar. He violated the law instead of promoting respect for it and degraded the noble profession of law instead of upholding its dignity and integrity. His actuations impaired public respect for the Court, and damaged the integrity of the bar examinations as the final measure of a law graduate’s academic preparedness to embark upon the practice of law.

However, the Investigating Committee does not believe that De Guzman was solely responsible for the leakage of Atty. Balgos’ proposed test questions in the mercantile law examination. The Committee does not believe that he acted alone, or did not have the assistance and cooperation of other persons, such as:

“Cheryl Palma, Atty. Balgos’ private secretary, who, according to Atty. Balgos himself, was the only person who knew the password, who could open and close his computer; and who had the key to his office where his computer was kept. Since a computer may not be accessed or downloaded unless it is opened, someone must have opened Atty. Balgos’ computer in order for De Guzman to retrieve the test questions stored therein.

“Silvestre Atienza, also a fraternity ‘brod’ of De Guzman, who was responsible for interconnecting Atty. Balgos’ computer with the other computers outside Atty. Balgos’ room or office, and who was the only other person, besides Cheryl Palma, who knew the password of Atty. Balgos’ computer.

“The following persons who received from De Guzman, and distributed copies of the leaked test questions, appear to have conspired with him to steal and profit from the sale of the test questions. They could not have been motivated solely by a desire to help the fraternity, for the leakage was widespread (‘kalat na kalat’) according to Erwin Tan. The possible co-conspirators were:

Ronan Garvida,Arlan,Erwin Tan,Randy Iñigo,Ronald Collado, and

Allan Guiapal

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“The Committee does not believe that De Guzman recklessly broke the law and risked his job and future as a lawyer, out of love for the Beta Sigma Lambda fraternity. There must have been an ulterior material consideration for his breaking the law and tearing the shroud of secrecy that, he very well knows, covers the bar examinations.

“On the other hand, the Committee finds that the theft of the test questions from Atty. Balgos’ computer could have been avoided if Atty. Balgos had exercised due diligence in safeguarding the secrecy of the test questions which he prepared. As the computer is a powerful modern machine which he admittedly is not fairly familiar with, he should not have trusted it to deep secret the test questions that he stored in its hard disk. He admittedly did not know the password of his computer. He relied on his secretary to use the password to open and close his computer. He kept his computer in a room to which other persons had access. Unfamiliar with the use of the machine whose potential for mischief he could not have been totally unaware of, he should have avoided its use for so sensitive an undertaking as typing the questions in the bar examination. After all he knew how to use the typewriter in the use of which he is quite proficient. Atty. Balgos should therefore have prepared the test questions in his trusty typewriter, in the privacy of his home, (instead of his law office), where they would have been safe from the prying eyes of secretaries and assistant attorneys. Atty. Balgos’ negligence in the preparation and safekeeping of his proposed test questions for the bar examination in mercantile law, was not the proximate cause of the ‘bar leakage;’ it was, in fact, the root cause. For, if he had taken those simple precautions to protect the secrecy of his papers, nobody could have stolen them and copied and circulated them. The integrity of the bar examinations would not have been sullied by the scandal. He admitted that ‘Mali siguro ako, but that was what happened’ (43 tsn, Oct. 24, 2003).

“R E C O M M E N D A T I O N

“This Honorable court in the case of Burbe v. Magulta, A.C. No. 5713, June 10, 2002, 383 SCRA 276, pronounced the following reminder for lawyers: ‘Members of the bar must do nothing that may tend to lessen in any degree the confidence of the public in the fidelity, the honesty and integrity of the profession.’ In another case, it likewise intoned: ‘We cannot overstress the duty of a lawyer to at all times uphold the integrity and dignity of the legal profession. He can do this by faithfully performing his duties to society, to the bar, to the courts, and to his clients.’ (Reyes v. Javier, A.C. No. 5574, February 2, 2002, 375 SCRA 538). It goes without saying that a lawyer who violates this precept of the profession by committing a gross misconduct which dishonors and diminishes the public’s respect for the legal profession, should be disciplined.

“After careful deliberation, the Investigating Committee recommends that:

“1.     Attorney Danilo De Guzman be DISBARRED for he had shown that he is morally unfit to continue as a member of the legal profession, for grave dishonesty, lack of integrity, and criminal behavior. In addition, he should make a written PUBLIC APOLOGY and pay DAMAGES to the Supreme Court for involving it in another ‘bar scandal,’ causing the cancellation of the mercantile law examination, and wreaking havoc upon the image of this institution.

“2.     Attorney Marcial O. T. Balgos should be REPRIMANDED by the Court and likewise be required to make a written APOLOGY to the Court for the public scandal he brought upon it as a result of his negligence and lack of due care in preparing and safeguarding his proposed test questions in mercantile law. As the Court had to cancel the Mercantile Law examination on account of the ‘leakage’ of Attorney Balgos’ test questions, which comprised 82% of the bar questions in that examination, Atty. Balgos is not entitled to receive any honorarium as examiner for that subject.

“3.     FURTHER INVESTIGATION of Danilo De Guzman, Cheryl Palma, Silvestre Atienza, Ronan Garvida, Arlan, Erwin Tan, Randy Iñigo, James Bugain, Ronald Collado and Allan Guiapal by the National Bureau of Investigation and the Philippine National Police, with a view to their criminal prosecution as probable co-conspirators in the theft and leakage of the test questions in mercantile law.

“With regard to recommending measures to safeguard the integrity of the bar examinations and prevent a repetition of future leakage in the said examinations, inasmuch as this matter is at present under study by the Court’s Committee on Legal Education and Bar Matters, as an aspect of proposals for bar reforms, the Investigating Committee believes it would

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be well-advised to refrain from including in this report what may turn out to be duplicative, if not contrary, recommendations on the matter.”[3]

The Court adopts the report, including with some modifications the recommendation, of the Investigating Committee. The Court, certainly will not countenance any act or conduct that can impair not only the integrity of the Bar Examinations but the trust reposed on the Court.

The Court also takes note that Mr. Jovito M. Salonga and Mr. Benjamin R. Katly, two of its employees assigned to the Management Information Systems Office (MISO), who were tasked by the Investigating Committee to inspect the computer system in the office of Atty. Balgos, found that the Court’s Computer-Assisted Legal Research (CALR) database[4] was installed in the computer used by Atty. Balgos. Mr. Salonga and Mr. Katly reported that the system, which was developed by the MISO, was intended for the exclusive use of the Court. The installation thereof to any external computer would be unauthorized without the permission of the Court. Atty. Velasco informed the two Court employees that the CALR database was installed by Atty. De Guzman on the computer being used by Atty. Balgos. The matter would also need further investigation to determine how Atty. De Guzman was able to obtain a copy of the Court’s CALR database.

WHEREFORE, the Court, acting on the recommendations of the Investigating Committee, hereby resolves to -

(1)            DISBAR Atty. DANILO DE GUZMAN from the practice of law effective upon his receipt of this RESOLUTION;

(2)            REPRIMAND Atty. MARCIAL O.T. BALGOS and DISENTITLE him from receiving any honorarium as an Examiner in Mercantile Law;

(3)            Direct the National Bureau of Investigation (a) to undertake further investigation of Danilo De Guzman, Cheryl Palma, Silvestre Atienza, Ronan Garvida, Erwin Tan, Randy Iñigo, James Bugain, Ronald Collado and Allan Guiapal with a view to determining their participation and respective accountabilities in the bar examination leakage and to conduct an investigation on how Danilo De Guzman was able to secure a copy of the Supreme Court’s CALR database.

Let a copy of this Resolution be made part of the records of Danilo De Guzman in the Office of the Bar Confidant, Supreme Court of the Philippines, and copies to be furnished the Integrated Bar of the Philippines and circulated by the Office of the Court Administrator to all courts.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Callejo, Sr., JJ., concur.

Azcuna, J., on official leave.Tinga, J., No part. Close to family of one of the parties involved in bar scandal.

Judicial compassionOne of the most embarrassing experiences in recent years of the Institute of Law of Far Eastern University (FEU), my beloved alma matter (high school and law degree), was summarized in the very recent case of “RE: 2003 BAR EXAMINATIONS, ATTY. DANILO DE GUZMAN, Petitioner, En Banc, B.M. No. 1222, April 24, 2009”, wherein the Philippine Supreme Court partially granted the Petition for Judicial Clemency and Compassion and commuted the disbarment of Atty. DANILO G. DE GUZMAN, a former law student leader and honor student of FEU, from the practice of law to seven years suspension from the practice of law, reckoned from February 4, 2004. 

Personally, I thank the Court for having judiciously exercised the virtue of compassion on the petitioner in order to save the good future ahead of him as a young, competent, and civic-spirited legal professional.

I wish to digest the decision hereinbelow, for purposes of legal research of the visitors of this blog.

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On February 4, 2004, the Court promulgated a Resolution, in B.M. No. 1222, which resolved to DISBAR Atty. DANILO DE GUZMAN from the practice of law.

The subject of the Resolution was the leakage of questions in Mercantile Law during the 2003 Bar Examinations. Petitioner at that time was employed as an assistant lawyer in the law firm of Balgos & Perez, one of whose partners, Marcial Balgos, was the examiner for Mercantile Law during the said bar examinations. The Court had adopted the findings of the Investigating Committee, which identified petitioner as the person who had downloaded the test questions from the computer of Balgos and faxed them to other persons. 

The Office of the Bar Confidant (OBC) has favorably recommended the reinstatement of petitioner in the Philippine Bar. 

The petitioner was the President of the Student Council of the Institute of Law of the Far Eastern University (FEU), which was conferred on him an Academic Excellence Award upon his graduation in Bachelor of Laws. Upon admission to the bar in April 1999, petitioner immediately entered government service as a Legal Officer assigned at the Sangguniang Bayan of Taguig. Simultaneously, he also rendered free legal services to less fortunate residents of Taguig City who were then in need of legal assistance. In March 2000, petitioner was hired as one of the Associate Lawyers at the Balgos and Perez Law Offices. Despite having entered private practice, he continued to render free legal services to his fellow Taguigeños. 

Then in February 2004, by a sudden twist of fate, petitioner’s flourishing career was cut short as he was stripped of his license to practice law for his alleged involvement in the leakage in the 2003 Bar Examinations. 

On March 2004, however, petitioner was given a new lease in life when he was taken as a consultant by the City Government of Taguig. Later, he was designated as a member of the Secretariat of the People’s Law Enforcement Board (PLEB). For the next five (5) years, petitioner concentrated mainly on rendering public service. 

Petitioner humbly acknowledged the damaging impact of his act which unfortunately, compromised the integrity of the bar examinations. Petitioner averred that he has since learned from his mistakes and has taken the said humbling experience to make him a better person. 

As part of his Petition, petitioner submitted to the Court various testimonials and endorsements of various individuals and entities all attesting to his good moral character, e.g. parish priests of Taguig, Rizal, local voluntary bar associations in Taguig, law offices in Taguig, local government executives and the city council of Taguig, homeowners associations in Taguig, civic organizations and other non-governmental organizations in Taguig, and many others. Petitioner pleaded that he be afforded judicial kindness and compassion in order that his promising future may not be perpetually foreclosed. 

In the case of Re: Petition of Al Argosino to Take the Lawyer’s Oath (Bar Matter 712), the Court said in allowing Mr. Argosino to take the lawyer’s oath, the Court recognized that Mr. Argosino was not inherently of bad moral fiber. On the contrary, the various certifications show that he was a devout Catholic with a genuine concern for civic duties and public service. The Court was persuaded that Mr. Argosino had exerted all efforts, to atone for the death of Raul Camaligan. We are prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating.

In the case of Rodolfo M. Bernardo vs. Atty. Ismael F. Mejia (Administrative Case No. 2984), the Court, in deciding whether or not to reinstate Atty. Mejia to the practice of law, took into consideration the applicant’s character and standing prior to the disbarment, the nature and character of the charge/s for which he was disbarred, his conduct subsequent to the disbarment and the time that has elapsed in between the disbarment and the application for reinstatement. Petitioner was barely thirty (30) years old and had only been in the practice of law for five (5) years when he was disbarred from the practice of law. 

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In the said case, the Court stated that it was of no doubt that petitioner had a promising future ahead of him where it not for the decision of the Court stripping off his license. Petitioner was also of good moral repute, not only before but likewise, after his disbarment, as attested to overwhelmingly by his constituents, colleagues as well as people of known probity in the community and society. Way before the petitioner was even admitted to the bar, he had already manifested his intense desire to render public service as evidenced by his active involvement and participation in several social and civic projects and activities. Likewise, even during and after his disbarment, which could be perceived by some as a debilitating circumstance, petitioner still managed to continue extending his assistance to others in whatever means possible. This only proves petitioner’s strength of character and positive moral fiber. 

In the case at bar, the report of the Bar Confidant stated that it was of no question that petitioner’s act in copying the examination questions from Atty. Balgos’ computer without the latter’s knowledge and consent, and which questions later turned out to be the bar examinations questions in Mercantile Law in the 2003 Bar Examinations, is not at all commendable. While we do believe that petitioner sincerely did not intend to cause the damage that his action ensued, still, he must be sanctioned for unduly compromising the integrity of the bar examinations as well as of this Court. However, the Court convinced that petitioner had since reformed and had sincerely reflected on his transgressions. Thus, in view of the circumstances and likewise for humanitarian considerations, the penalty of disbarment may now be commuted to suspension. Considering the fact, however, that petitioner had already been disbarred for more than five (5) years, the same may be considered as proper service of said commuted penalty and thus, may now be allowed to resume practice of law.

In fine, the Court stated that the recommendation of the Office of the Bar Confidant was well-taken in part. It deemed petitioner worthy of clemency to the extent of commuting his penalty to seven (7) years suspension from the practice of law, inclusive of the five (5) years he had already served his disbarment. According to the Court, penalties, such as disbarment, are imposed not to punish but to correct offenders. While the Court was ever mindful of its duty to discipline its erring officers, it also knew how to show compassion when the penalty imposed had already served its purpose. In cases where the Court had deigned to lift or commute the supreme penalty of disbarment imposed on the lawyer, it had taken into account the remorse of the disbarred lawyer and the conduct of his public life during his years outside of the bar. 

For example, in Valencia v. Antiniw, the Court held that the long period of respondent's disbarment gave him the chance to purge himself of his misconduct, to show his remorse and repentance, and to demonstrate his willingness and capacity to live up once again to the exacting standards of conduct demanded of every member of the bar and officer of the court. During respondent's disbarment for more than fifteen (15) years to date for his professional infraction, he had been persistent in reiterating his apologies and pleas for reinstatement to the practice of law and unrelenting in his efforts to show that he had regained his worthiness to practice law, by his civic and humanitarian activities and unblemished record as an elected public servant, as attested to by numerous civic and professional organizations, government institutions, public officials and members of the judiciary. 

In the case at bar, the Court held that petitioner had sufficiently demonstrated the remorse expected of him considering the gravity of his transgressions. Even more to his favor, petitioner had redirected focus since his disbarment towards public service, particularly with the People’s Law Enforcement Board. The attestations submitted by his peers in the community and other esteemed members of the legal profession, such as retired Court of Appeals Associate Justice Oscar Herrera, Judge Hilario Laqui, Professor Edwin Sandoval and Atty. Loreto Ata, and the ecclesiastical community such as Rev. Fr. Paul Balagtas testified to his positive impact on society at large since the unfortunate events of 2003. 

The Court added that petitioner’s subsequent track record in public service affords the Court some hope that if he were to reacquire membership in the Philippine bar, his achievements as a lawyer would redound to the general good and more than mitigate the stain on his record. Compassion to the petitioner was warranted, the Court concluded.

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Soliman M. Santos, Jr. v. Atty. Francisco R. Llamas A.C. No. 4749. January 20, 2000 Misrepresentation

and Non-payment of IBP Dues

Facts: Complaint for misrepresentation and non-payment of bar membership dues. It appears that Atty. Llamas, who for a number of years now, has not indicated the proper PTR and IBP OR Nos. and data in his pleadings. If at all, he only indicated “IBP Rizal 259060” but he has been using this for at least 3 years already. On the other hand, respondent, who is now of age, averred that he is only engaged in a “limited” practice of law and under RA 7432, as a senior citizen, he is exempted from payment of income taxes and included in this exemption is the payment of membership dues.Held: GUILTY. Rule 139-A requires that every member of the Integrated Bar shall pay annual dues and default thereof for six months shall warrant suspension of membership and if nonpayment covers a period of 1-year, default shall be a ground for removal of the delinquent’s name from the Roll of Attorneys. It does not matter whether or not respondent is only engaged in “limited” practice of law. Moreover, the exemption invoked by respondent does not include exemption from payment of membership or association dues.In addition, by indicating “IBP Rizal 259060” in his pleadings and thereby misprepresenting to the public and the courts that he had paid his IBP dues to the Rizal Chpater, respondent is guilty of violating the Code of Professional Responsibility which provides: Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. His act is also a violation of Rule 10.01 which provides that: A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor mislead or allow the court to be misled by any artifice.Lawyer was suspended for 1 year or until he has paid his IBP dues, whichever is later.

IN RE: ALMACEN (31 SCRA 562 2/18/70) - Lawyers' Duty

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FACTS: Vicente Raul Almacen’s “Petition to Surrender Lawyer’s Certificate of Title,” filed on Sept. 26, 1967, in protest against what he therein asserts is “a great injustice committed against his client by Supreme Court”.  He indicts SC, in his own phrase, as a tribual “peopled by men who are calloused to our pleas for justice, who ignore without reasons their own applicable decisions and commit culpable violations of the Constitution with impunity.”  His client’s he continues, who was deeply aggrieved by this Court’s “unjust judgment,” has become one of the sacrificial victims before the altar of hypocrisy.”

He ridicules the members of the Court, saying “that justice as administered by the present members of the Supreme Court is not only bline, but also deaf and dumb.”  He then vows to argue the cause of his client ”in the people’s forum,” so that “ people may know of the silent injustices committed by this court’ and that “whatever mistakes, wrongs and injustices that were committed must never be repeated.”  He ends his petition with a prayer that:

“………a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned attorney that at any time in the future and in the event we regain our faith and confidence, we may retrieve our title to assume the practice of the noblest profession.”

The genesis of this unfortunate incident was a civil case entitled Yaptichay v. Calero, in which Atty. Almacen was counsel for the defendant.  The trial court rencered judgment agains his client.  On June 15, 1966 atty. Almacen receive acopy of the decision.  Twenty days later on he moved for its reconsideration but did not notify the latter of the time and plce of hearing on said motion.  Meanwhile, onJuly 18, 1966, the plaintiff moved for execution of the judgment.  For lack of proof of service, ‘the trial court denied both motions.  To prove that he did serve on the adverse party a copy of his first motion for reconsideration, atty. Almacen filed on August 17, 1966 a second motion for reconsideration, however, was ordered withdrawn by the trial court on August 30, 1966, upon verbal motion of Atty. Almacen himself, who earlier, that is, on Aug. 22, 1966 had already perfected the appeal.  Motion for reconsideration was denied by Court of Appeals.

HELD: Well-recognized is the right of a lawyer, both as an officer of the court and as citizen, to criticize in properly respectful terms and through legitimate channels the acts of courts and judges.

As a citizen and as officer of the court, a lawyer is expected not only to exercise the right, but also to consider it his duty to avail of such right.  No law may abridge this right.  Nor is he “professionally answerable for a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen.  Atty. Almacen is suspended from the practice of law until further orders.

[A.M. SDC-97-2-P.  February 24, 1997]

SOPHIA ALAWI, complainant, vs. ASHARY M. ALAUYA, Clerk of Court VI, Shari'a District Court, Marawi City, respondent.

D E C I S I O N

NARVASA, C.J.:

Sophia Alawi was (and presumably still is) a sales representative (or coordinator) of E. B. Villarosa & Partners Co., Ltd. of Davao City, a real estate and housing company. Ashari M. Alauya is the incumbent executive clerk of court of the 4th Judicial Shari'a District in Marawi City. They were classmates, and used to be friends.

It appears that through Alawi's agency, a contract was executed for the purchase on installments by Alauya of one of the housing units belonging to the above mentioned firm (hereafter, simply Villarosa & Co.); and in connection therewith, a housing loan was also granted to Alauya by the National Home Mortgage Finance Corporation (NHMFC).

Not long afterwards, or more precisely on December 15, 1995, Alauya addressed a letter to the President of Villarosa & Co. advising of the termination of his contract with the company. He wrote:

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" ** I am formally and officially withdrawing from and notifying you of my intent to terminate the Contract/Agreement entered into between me and your company, as represented by your Sales Agent/Coordinator, SOPHIA ALAWI, of your company's branch office here in Cagayan de Oro City, on the grounds that my consent was vitiated by gross misrepresentation, deceit, fraud, dishonesty and abuse of confidence by the aforesaid sales agent which made said contract void ab initio. Said sales agent acting in bad faith perpetrated such illegal and unauthorized acts which made said contract an Onerous Contract prejudicial to my rights and interests."

He then proceeded to expound in considerable detail and quite acerbic language on the "grounds which could evidence the bad faith, deceit, fraud, misrepresentation, dishonesty and abuse of confidence by the unscrupulous sales agent ** ;" and closed with the plea that Villarosa & Co. "agree for the mutual rescission of our contract, even as I inform you that I categorically state on record that I am terminating the contract **.  I hope I do not have to resort to any legal action before said onerous and manipulated contract against my interest be annulled. I was actually fooled by your sales agent, hence the need to annul the controversial contract."

Alauya sent a copy of the letter to the Vice-President of Villarosa & Co. at San Pedro, Gusa, Cagayan de Oro City. The envelope containing it, and which actually went through the post, bore no stamps. Instead at the right hand corner above the description of the addressee, the words, "Free Postage — PD 26," had been typed.

On the same date, December 15, 1995, Alauya also wrote to Mr. Fermin T. Arzaga, Vice-President, Credit & Collection Group of the National Home Mortgage Finance Corporation (NHMFC) at Salcedo Village, Makati City, repudiating as fraudulent and void his contract with Villarosa & Co.; and asking for cancellation of his housing loan in connection therewith, which was payable from salary deductions at the rate of P4,338.00 a month. Among other things, he said:

" ** (T)hrough this written notice, I am terminating, as I hereby annul, cancel, rescind and voided, the 'manipulated contract' entered into between me and the E.B. Villarosa & Partner Co., Ltd., as represented by its sales agent/coordinator, SOPHIA ALAWI, who maliciously and fraudulently manipulated said contract and unlawfully secured and pursued the housing loan without my authority and against my will. Thus, the contract itself is deemed to be void ab initio in view of the attending circumstances, that my consent was vitiated by misrepresentation, fraud, deceit, dishonesty, and abuse of confidence; and that there was no meeting of the minds between me and the swindling sales agent who concealed the real facts from me."

And, as in his letter to Villarosa & Co., he narrated in some detail what he took to be the anomalous actuations of Sophia Alawi.

Alauya wrote three other letters to Mr. Arzaga of the NHMFC, dated February 21, 1996, April 15, 1996, and May 3, 1996, in all of which, for the same reasons already cited, he insisted on the cancellation of his housing loan and discontinuance of deductions from his salary on account thereof.a He also wrote on January 18, 1996 to Ms. Corazon M. Ordoñez, Head of the Fiscal Management & Budget Office, and to the Chief, Finance Division, both of this Court, to stop deductions from his salary in relation to the loan in question, again asserting the anomalous manner by which he was allegedly duped into entering into the contracts by "the scheming sales agent."b

The upshot was that in May, 1996, the NHMFC wrote to the Supreme Court requesting it to stop deductions on Alauya's UHLP loan "effective May 1996," and began negotiating with Villarosa & Co. "for the buy-back of  ** (Alauya's) mortgage, and ** the refund of ** (his) payments."c

On learning of Alauya's letter to Villarosa & Co. of December 15, 1995, Sophia Alawi filed with this Court a verified complaint dated January 25, 1996 -- to which she appended a copy of the letter, and of the above mentioned envelope bearing the typewritten words, "Free Postage — PD 26."[1] In that complaint, she accused Alauya of:

1.       "Imputation of malicious and libelous charges with no solid grounds through manifest ignorance and evident bad faith;"

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2.       "Causing undue injury to, and blemishing her honor and established reputation;"

3.       "Unauthorized enjoyment of the privilege of free postage **;" and

4.       Usurpation of the title of "attorney," which only regular members of the Philippine Bar may properly use.

She deplored Alauya's references to her as "unscrupulous, swindler, forger, manipulator, etc." without "even a bit of evidence to cloth (sic) his allegations with the essence of truth," denouncing his imputations as irresponsible, "all concoctions, lies, baseless and coupled with manifest ignorance and evident bad faith," and asserting that all her dealings with Alauya had been regular and completely transparent. She closed with the plea that Alauya "be dismissed from the service, or be appropriately disciplined (sic) ** "

The Court resolved to order Alauya to comment on the complaint. Conformably with established usage that notices of resolutions emanate from the corresponding Office of the Clerk of Court, the notice of resolution in this case was signed by Atty. Alfredo P. Marasigan, Assistant Division Clerk of Court.[2]

Alauya first submitted a "Preliminary Comment"[3] in which he questioned the authority of Atty. Marasigan to require an explanation of him, this power pertaining, according to him, not to "a mere Asst. Div. Clerk of Court investigating an Executive Clerk of Court." but only to the District Judge, the Court Administrator or the Chief Justice, and voiced the suspicion that the Resolution was the result of a "strong link" between Ms. Alawi and Atty. Marasigan's office. He also averred that the complaint had no factual basis; Alawi was envious of him for being not only "the Executive Clerk of court and ex-officio Provincial Sheriff and District Registrar," but also "a scion of a Royal Family **."[4]

In a subsequent letter to Atty. Marasigan, but this time in much less aggressive, even obsequious tones,[5] Alauya requested the former to give him a copy of the complaint in order that he might comment thereon.[6] He stated that his acts as clerk of court were done in good faith and within the confines of the law; and that Sophia Alawi as sales agent of Villarosa & Co. had, by falsifying his signature, fraudulently bound him to a housing loan contract entailing monthly deductions of P4,333.10 from his salary.

And in his comment thereafter submitted under date of June 5, 1996, Alauya contended that it was he who had suffered "undue injury, mental anguish, sleepless nights, wounded feelings and untold financial suffering," considering that in six months, a total of P26,028.60 had been deducted from his salary.[7] He declared that there was no basis for the complaint; in communicating with Villarosa & Co. he had merely acted in defense of his rights. He denied any abuse of the franking privilege, saying that he gave P20.00 plus transportation fare to a subordinate whom he entrusted with the mailing of certain letters; that the words: "Free Postage — PD 26," were typewritten on the envelope by some other person, an averment corroborated by the affidavit of Absamen C. Domocao, Clerk IV (subscribed and sworn to before respondent himself, and attached to the comment as Annex J);[8] and as far as he knew, his subordinate mailed the letters with the use of the money he had given for postage, and if those letters were indeed mixed with the official mail of the court, this had occurred inadvertently and because of an honest mistake.[9]

Alauya justified his use of the title, "attorney," by the assertion that it is "lexically synonymous" with "Counsellors-at-law," a title to which Shari'a lawyers have a rightful claim, adding that he prefers the title of "attorney" because "counsellor" is often mistaken for "councilor," "konsehal or the Maranao term "consial," connoting a local legislator beholden to the mayor. Withal, he does not consider himself a lawyer.

He pleads for the Court's compassion, alleging that what he did "is expected of any man unduly prejudiced and injured."[10] He claims he was manipulated into reposing his trust in Alawi, a classmate and friend. [11] He was induced to sign a blank contract on Alawi's assurance that she would show the completed document to him later for correction, but she had since avoided him; despite "numerous letters and follow-ups" he still does not know where the property -- subject of his supposed agreement with Alawi's principal, Villarosa & Co. -- is situated;[12] He says Alawi somehow got his GSIS policy from his wife, and although she promised to return it the next day, she did not do so until after several months. He also claims that in connection with his contract with Villarosa & Co., Alawi forged his signature on such pertinent documents as those regarding the down payment, clearance, lay-out, receipt of the key of the house, salary deduction, none of which he ever saw.[13]

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Averring in fine that his acts in question were done without malice, Alauya prays for the dismissal of the complaint for lack of merit, it consisting of "fallacious, malicious and baseless allegations," and complainant Alawi having come to the Court with unclean hands, her complicity in the fraudulent housing loan being apparent and demonstrable.

It may be mentioned that in contrast to his two (2) letters to Assistant Clerk of Court Marasigan (dated April 19, 1996 and April 22, 1996), and his two (2) earlier letters both dated December 15, 1996 -- all of which he signed as "Atty. Ashary M. Alauya" -- in his Comment of June 5, 1996, he does not use the title but refers to himself as "DATU ASHARY M. ALAUYA."

The Court referred the case to the Office of the Court Administrator for evaluation, report and recommendation.[14]

The first accusation against Alauya is that in his aforesaid letters, he made "malicious and libelous charges (against Alawi) with no solid grounds through manifest ignorance and evident bad faith," resulting in "undue injury to (her) and blemishing her honor and established reputation." In those letters, Alauya had written inter alia that:

1)      Alawi obtained his consent to the contracts in question "by gross misrepresentation, deceit, fraud, dishonesty and abuse of confidence;"

2)      Alawi acted in bad faith and perpetrated ** illegal and unauthorized acts ** ** prejudicial to ** (his) rights and interests;"

3)      Alawi was an "unscrupulous (and "swindling") sales agent" who had fooled him by "deceit, fraud, misrepresentation, dishonesty and abuse of confidence;" and

4)      Alawi had maliciously and fraudulently manipulated the contract with Villarosa & Co., and unlawfully secured and pursued the housing loan without ** (his) authority and against ** (his) will," and "concealed the real facts **."

Alauya's defense essentially is that in making these statements, he was merely acting in defense of his rights, and doing only what "is expected of any man unduly prejudiced and injured," who had suffered "mental anguish, sleepless nights, wounded feelings and untold financial suffering," considering that in six months, a total of P26,028.60 had been deducted from his salary.[15]

The Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713) inter alia enunciates the State policy of promoting a high standard of ethics and utmost responsibility in the public service.[16] Section 4 of the Code commands that "(p)ublic officials and employees ** at all times respect the rights of others, and ** refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest."[17] More than once has this Court emphasized that "the conduct and behavior of every official and employee of an agency involved in the administration of justice, from the presiding judge to the most junior clerk, should be circumscribed with the heavy burden of responsibility. Their conduct must at all times be characterized by, among others, strict propriety and decorum so as to earn and keep the respect of the public for the judiciary."[18]

Now, it does not appear to the Court consistent with good morals, good customs or public policy, or respect for the rights of others, to couch denunciations of acts believed -- however sincerely -- to be deceitful, fraudulent or malicious, in excessively intemperate. insulting or virulent language. Alauya is evidently convinced that he has a right of action against Sophia Alawi. The law requires that he exercise that right with propriety, without malice or vindictiveness, or undue harm to anyone; in a manner consistent with good morals, good customs, public policy, public order, supra; or otherwise stated, that he "act with justice, give everyone his due, and observe honesty and good faith."[19] Righteous indignation, or vindication of right cannot justify resort to vituperative language, or downright name-calling. As a member of the Shari'a Bar and an officer of a Court, Alawi is subject to a standard of conduct more stringent than for most other government workers. As a man of the law, he may not use language which is abusive, offensive, scandalous, menacing, or otherwise improper.[20] As a judicial employee, it is expected that he accord respect for the person and the rights of others

19

at all times, and that his every act and word should be characterized by prudence, restraint, courtesy, dignity. His radical deviation from these salutary norms might perhaps be mitigated, but cannot be excused, by his strongly held conviction that he had been grievously wronged.

As regards Alauya's use of the title of "Attorney," this Court has already had occasion to declare that persons who pass the Shari'a Bar are not full-fledged members of the Philippine Bar, hence may only practice law before Shari'a courts.[21] While one who has been admitted to the Shari'a Bar, and one who has been admitted to the Philippine Bar, may both be considered "counsellors," in the sense that they give counsel or advice in a professional capacity, only the latter is an "attorney." The title of "attorney" is reserved to those who, having obtained the necessary degree in the study of law and successfully taken the Bar Examinations, have been admitted to the Integrated Bar of the Philippines and remain members thereof in good standing; and it is they only who are authorized to practice law in this jurisdiction.

Alauya says he does not wish to use the title, "counsellor" or "counsellor-at-law," because in his region, there are pejorative connotations to the term, or it is confusingly similar to that given to local legislators. The ratiocination, valid or not, is of no moment. His disinclination to use the title of "counsellor" does not warrant his use of the title of attorney.

Finally, respecting Alauya's alleged unauthorized use of the franking privilege, the record contains no evidence adequately establishing the accusation.

WHEREFORE, respondent Ashari M. Alauya is hereby REPRIMANDED for the use of excessively intemperate, insulting or virulent language, i.e., language unbecoming a judicial officer, and for usurping the title of attorney; and he is warned that any similar or other impropriety or misconduct in the future will be dealt with more severely.

ALAWI V ALAUYAPARTIESALAWI, sales rep of E.B. Villarosa

ALAUYA, incumbent executive clerk of courtFACTS

 Through ALAWI’S agency, a contract was executed for the purchase on installments by ALAUYA of a housing unit

A housing loan was also granted to ALAUYA by the National Home Mortgage Finance Corporation (NHMFC)

Subsequently, ALAUYA wrote a letter to the President of Villarosa advising termination of his contract on thegrounds that his consent was vitiated by gross misrepresentation, deceit, fraud, dishonesty and abuse of confidence by ALAWI and proceeded to expound using acerbic language

A copy of the letter, which bore no stamps, was sent to the VP of Villarosa

ALAUYA also wrote the NHMFC repudiating as void his contract with Villarosa and asking for cancellation of hisloan

Finally, ALAUYA wrote 3 other letters to officers of the SC to stop deductions from his salary regarding the loanfrom NHMFC

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NHMFC also wrote the SC requesting it to stop said deductions

Learning of the letters, ALAWI filed a complaint alleging that ALAUYAoCommitted malicious and libelous chargesoUsurped the title of attorneyISSUEW/N ALAUYA VIOLATED THE CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS ANDEMPLOYEESH E L D Y E S ,   P A R T I C U L A R L Y  S E C T I O N   4 RATIO

Section 4 “public officials and employees at all times respect the rights of others, and refrain from doing actscontrary to law, public order, public safety and public interest”

ALAUYA, being a member of the Shari’a Bar and an officer of the Court, may not use language which is abusive,offensive, scandalous, menacing or otherwise improper

His radical deviation from these norms cannot be excusedISSUEW/N ALAUYA BEING A MEMBER OF THE SHARI’A BAR CAN USE THE TITLE “ATTORNEY”HELDNO, RESERVED ONLY FOR THOSE WHO HAVE BEEN ADMITTED AS MEMBERS OF THE INTEGRATED BAR RATIO

Court has already had an occasion to declare that persons who pass the Shari’a Bar are not full-fledged membersof the Philippine Bar and may practice law only before Shari’a courts

ALAUYA’S wish of not using “counsellor” because of confusion with“councilor” is immaterial becausedisinclination to use said title does not warrant his use of the title “attorney”

Contempt of court is a court order which in the context of a court trial or hearing, declares a person or organization to

have disobeyed or been disrespectful of the court's authority. Often referred to simply as "contempt," such as a person

"held in contempt," it is the judge's strongest power to impose sanctions for acts which disrupt the court's normal process.

A finding of contempt of court may result from a failure to obey a lawful order of a court, showing disrespect for the judge,

disruption of the proceedings through poor behaviour, or publication of material deemed likely to jeopardize a fair trial. A

judge may impose sanctions such as a fine or jail for someone found guilty of contempt of court. Judges in common

law systems usually have more extensive power to declare someone in contempt than judges in civil law systems. The

client or person must be proven to be guilty before he/she will be punished.

In civil cases involving disputes between private citizens, the behaviour resulting in the ruling is often directed at one of

the parties involved rather than at the court directly.

A person found in contempt of court is called a "contemnor." To prove contempt, the prosecutor or complainant must

prove the four elements of contempt:

Existence of a lawful order

The potential contemnor's knowledge of the order

The potential contemnor's ability to comply

The potential contemnor's failure to comply

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AN ACT TO MAXIMIZE THE CONTRIBUTION OF SENIOR CITIZENS TO NATION BUILDING, GRANT BENEFITS AND SPECIAL PRIVILEGES AND FOR OTHER PURPOSES. 

REPUBLIC ACT NO. 7432

AN ACT TO MAXIMIZE THE CONTRIBUTION OF SENIOR CITIZENS TO NATION BUILDING, GRANT

BENEFITS AND SPECIAL PRIVILEGES AND FOR OTHER PURPOSES.

    

Section 1. Declaration of Policies and Objectives. — Pursuant to Article XV, Section 4 of

the Constitution, it is the duty of the family to take care of its elderly members while the State may

design programs of social security for them. In addition to his, Section 10 in the Declaration of

Principles and State Policies provides: "The State shall provide social justice in all phases of national

development." Further, Article XIII, Section 11 provides: "The State shall adopt an integrated and

comprehensive approach to health development which shall endeavor to make essential goods,

health and other social services available to all the people at affordable cost. There shall be priority

for the needs of the underprivileged, sick, elderly, disabled, women and children." Consonant with

these constitutional principles the following are the declared policies of this Act:

(a) to motivate and encourage the senior citizens to contribute to nation building;  

(b) to encourage their families and the communities they live with to reaffirm the valued Filipino

tradition of caring for the senior citizens.chanrobles virtual law library 

In accordance with those policies, this Act aims to: 

(1) establish mechanisms whereby the contribution of the senior citizens are maximized; 

(2) adopt measures whereby our senior citizens are assisted and appreciated by the community as

a whole; 

(3) establish a program beneficial to the senior citizens, their families and the rest of the

community that they serve.

Sec. 2. Definition of Terms. — As used in this Act, the term "senior citizen" shall mean any resident

citizen of the Philippines at least sixty (60) years old, including those who have retired from both

government offices and private enterprises, and has an income of not more than Sixty thousand

pesos (P60,000.00) per annum subject to review by the National Economic and Development

Authority (NEDA) every three (3) years.chanrobles virtual law library 

The term "benefactor" shall mean any person whether related to the senior citizens or not who

takes care of him/her as a dependent.chanrobles virtual law library 

The term "head of the family" shall mean any person so defined in the National Internal Revenue

Code. 

Sec. 3. Contribution to the Community. — Any qualified senior citizen as determined by the Office

for Senior Citizen Affairs (OSCA) may render his/her services to the community which shall consist

of, but not limited to, any of the following: 

(a) tutorial and/or consultancy services; chan robles virtual law library (b) actual teaching and demonstration of hobbies and income generating skills;

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(c) lectures on specialized fields like agriculture, health, environmental protection and the like; 

(d) the transfer of new skills acquired by virtue of their training mentioned in Section 4, paragraph

d; 

(e) undertaking other appropriate services as determined by the Office of Senior Citizens Affairs

(OSCA) such as school traffic guide, tourist aid, pre-school assistant, etc. 

In consideration of the services rendered by the qualified elderly, the Office for Senior Citizens

Affairs (OSCA) may award or grant benefits or privileges to the elderly, in addition to the other

privileges provided for under Section 4 hereof.chanrobles virtual law library 

Sec. 4. Privileges for the Senior Citizens. — The senior citizens shall be entitled to the following: 

(a) the grant of twenty percent (20%) discount from all establishments relative to utilization of

transportation services, hotels and similar lodging establishment, restaurants and recreation

centers and purchase of medicine anywhere in the country: Provided, That private establishments

may claim the cost as tax credit; chan robles virtual law library (b) a minimum of twenty percent (20%) discount on admission fees charged by theaters, cinema

houses and concert halls, circuses, carnivals and other similar places of culture, leisure, and

amusement; 

(c) exemption from the payment of individual income taxes: Provided, That their annual taxable

income does not exceed the property level as determined by the National Economic and

Development Authority (NEDA) for that year;chan robles virtual law library (d) exemption form training fees for socioeconomic programs undertaken by the OSCA as part of its

work;

(e) free medical and dental services in government establishment anywhere in the country, subject

to guidelines to be issued by the Department of Health, the Government Service Insurance System

and the Social Security System; 

(f) to the extent practicable and feasible, the continuance of the same benefits and privileges given

by the Government Service Insurance System (GSIS), Social Security System (SSS) and PAG-IBIG, as

the case may be, as are enjoyed by those in actual service. 

Sec. 5. Government Assistance. — The Government shall provide the following assistance to those

caring for and living with the senior citizen: 

(a) The senior shall be treated as dependents provided for in the National Internal Revenue Code

and as such, individual taxpayers caring for them, be they relatives or not shall be accorded the

privileges granted by the Code insofar as having dependents are concerned.chanrobles virtual law

library 

(b) Individuals or non-governmental institutions establishing homes, residential communities or

retirement villages solely for the senior citizens shall be accorded the

following:chanroblesvirtualawlibrary

(1) realty tax holiday for the first five (5) years starting from the first year of operation;

(2) priority in the building and/or maintenance of provincial or municipal roads leading to the

aforesaid home, residential community or retirement village. chan robles virtual law library

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Sec. 6. Retirement Benefits. — To the extent practicable and feasible, retirement benefits from both

the Government and the private sectors shall be upgraded to be at par with the current scale

enjoyed by those in actual service.chanrobles virtual law library 

Sec. 7. The Office for Senior Citizens Affairs (OSCA). — There shall be established in the Office of

the Mayor an OSCA to be headed by a Councilor who shall be designated by the Sangguniang

Bayan and assisted by the Community Development Officer in coordination with the Department of

Social Welfare and Development. The functions of this office are:chanroblesvirtualawlibrary

(a) to plan, implement and monitor yearly work programs in pursuance of the objectives of this Act; 

(b) to draw up a list of available and required services which can be provided by the senior

citizens; chan robles virtual law library (c) to maintain and regularly update on a quarterly basis the list of senior citizens and to issue

nationally uniform individual identification cards which shall be valid anywhere in the country; 

(d) to service as a general information and liaison center to serve the needs of the senior citizens.

Sec. 8. Municipality Responsibility. — It shall be the responsibility of the municipality through the

mayor to ensure that the provisions of this Act are implemented to its fullest.chanrobles virtual law

library

Sec. 9. Penalties. — Violation of any provision of this Act for which no penalty is specifically

provided under any other law, shall be punished by imprisonment not exceeding one (1) month or a

fine not exceeding One thousand pesos (P1,000.00) or both.chanrobles virtual law library 

Sec. 10. Implementing Rules and Regulations. — The Secretary of Social Welfare and Development,

jointly with the Department of Finance, the Department of Tourism, the Department of Health, the

Department of Transportation and Communications and the Department of Interior and Local

Government shall issue the necessary rules and regulations to carry out the objectives of this

Act.cralaw 

Sec. 11. Appropriation. — The necessary appropriation for the operation and maintenance of the

OSCA shall be appropriated and approved by the local government units concerned. The National

Government shall appropriate such amount, as may be necessary to carry out the objectives of this

Act.

Sec. 12. Repealing Clause. — All provisions of laws, orders, decrees, including rules and regulations

inconsistent herewith are hereby repealed and/or modified accordingly.cralaw 

Sec. 13. Separability Clause. — If any part or provision of this Act shall be held to be

unconstitutional or invalid, other provisions hereof which are not affected thereby shall continue to

be in full force and effect. 

Sec. 14. Effectivity. — This Act shall take effect fifteen (15) days following its publication in one (1)

national newspaper of general circulation.  

  

 

Approved: April 23, 1992