EN BANC
A.M. No. 08-19-SB-J --- Assistant Special Prosecutor III Rohermia
J. Jamsani-Rodriguez, Complainant, versus Justices Gregory S. Ong, Jose R. Hernandez and Rodolfo A. Ponferrada,
Sandiganbayan, Respondents.
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DISSENTING OPINION
ABAD, J.:
I dissent from the majority
decision ably written for the Court by Justice Lucas P. Bersamin.
In 1988 Assistant Special
Prosecutor Rohermia Jamsani-Rodriguez from the Office of the Ombudsman charged
Justices Gregory S. Ong, Jose R. Hernandez, and Rodolfo A. Ponferrada of the
Sandiganbayan’s Fourth Division of (1) grave misconduct, conduct unbecoming a
Justice, and conduct grossly prejudicial to the interest of the service; (2)
falsification of public documents; (3) improprieties in the hearing of cases;
and (4) manifest partiality and gross ignorance of the law.
Regarding the first and second
charges, complainant Rodriguez assailed the procedure that respondent Justices adopted
during the Fourth Division’s hearings in
Following an investigation,
then Court Administrator Jose P. Perez, submitted a report dated October 6,
2009, recommending the dismissal of the charges for lack of merit. But the majority in the Court found
respondent Justices guilty of simple misconduct and respondent Justices Ong and
Hernandez guilty of unbecoming conduct.
The Court dismissed all the other charges.
I disagree with the findings
of guilt.
One. The majority
in the Court found respondent Justices guilty of simple misconduct for failure to
hear the cases before them as a collegial body. It ruled that P.D. 1606 and the Revised
Internal Rules of the Sandiganbayan required the actual presence of the three
Justices composing the Division to constitute a quorum for conducting business
and holding trial. Thus, the exclusion
or absence of any member of the Division negated the existence of a quorum and
precluded collegiality.
But, while the procedure that
respondent Justices adopted did not strictly follow the requirement to the
letter, I submit that their acts cannot be characterized either as simple or
grave misconduct. Misconduct is a
transgression of some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by a public officer.[1]
The misconduct is grave if it involves
any of the additional elements of corruption, willful intent to violate the law
or to disregard established rules. Otherwise, the misconduct is only simple.[2]
To be considered misconduct,
the transgression must have been committed by unlawful behavior or gross
negligence. Here, respondent Justices
conducted the separate and simultaneous hearings in the same venue and within
hearing and communicating distance of each other. They adopted this arrangement to maximize
their presence in
The actions of the Justices
also resulted in saving the litigants, the lawyers, the witnesses, and the Court
considerable time, effort, and resources.[3]
None of the Justices was motivated by
corruption or an illegal purpose; on the contrary, they did everything in good
faith. In fact, complainant Rodriguez herself
recognized in her memorandum to her superior that it was commendable on the
part of the Justices to have adopted the procedure which turned out to be
advantageous to the prosecution.[4]
Clearly, there is nothing
unlawful or grossly negligent in what respondent Justices did. At most, it could only be regarded as irregular,
which is not sufficient to make them liable for any misconduct.
Two. In weighing respondent
Justices’ individual liabilities, the majority in the Court made a distinction
between the Chairman and the members of the Fourth Division. It explained that as Chairman, Justice Ong
possessed and wielded powers of supervision, direction, and control over the Division’s
proceedings and eventually steered it into the path of procedural irregularity.
On the other hand, the majority mitigated
the liabilities of Justices Hernandez and Ponferrada supposedly because they
were mere Division members who had no direction and control of how the
proceedings went.
I submit that the distinction
is unwarranted and placed respondent Ong at an unfair disadvantage.
As the majority decision noted,
the Sandiganbayan being a collegial court, each member has approximately equal
power and authority. The members act on
the basis of consensus or majority rule.[5]
Thus, while the Chairman supervises and
directs the proceedings of the Division, his authority is limited to that
extent. All Division members share any decision
on what proceedings to adopt in the conduct of its business. They act by consensus or majority rule. In fact, respondent Justices pointed out in
their respective comments that they adopted the challenged procedure in the
best interest of the service. This
admission negates any impression that Chairman Ong imposed his will on Justices
Hernandez and Ponferrada or that the latter two merely relied on their
Chairman’s judgment.
It is not fair to conclude
that since Justices Hernandez and Ponferrada were mere members, they had no
voice in how their Division conducted its business and proceedings. No less than the Code of Judicial Conduct
requires them to be independent from judicial colleagues in respect of
decisions which they are obliged to make independently.[6]
I submit that Justice Ong does
not deserve the sanction, even if light, that the Court has chosen to impose on
him.
ROBERTO
A. ABAD
Associate
Justice