EN BANC
A.M. No. 10-7-17-SC - In
the Matter of the Charges of Plagiarism, etc., against Associate Justice
Mariano C. Del Castillo
Promulgated:
February 8, 2011
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SEPARATE
DISSENTING OPINION
CARPIO MORALES, J.:
I join Justice Antonio T. Carpio’s
thesis in his Dissenting Opinion on the commission of plagiarism or violation
of intellectual property rights in the Vinuya
decision. I join him too on his other
thesis that this Court has no jurisdiction to decide an administrative case
where a sitting Justice of this Court has committed misconduct in office, with
qualification.
I
submit that the Court may wield its
administrative power against its incumbent members on grounds other
than culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust, AND provided the offense or
misbehavior does not carry with it a penalty, the service of which would amount
to removal from office either on a permanent or temporary basis such as
suspension.
The President, the Vice President, the members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.[1] (underscoring supplied)
In 1988, the Court dismissed the complaint for disbarment
against Justice Marcelo Fernan for lack of merit. Aside from finding the accusations totally
baseless, the Court, by per curiam Resolution,[2] also stated that to grant a
complaint for disbarment of a member of the Court during the member’s
incumbency would in effect be to circumvent and hence to run afoul of the
constitutional mandate that members of the Court may be removed from office
only by impeachment.
In
the subsequent case of In Re Raul M.
Gonzales,[3] this
principle of constitutional law was succinctly formulated in the following
terms which lay down a bar to the institution of certain actions against an
impeachable officer during his or her incumbency.
x x x A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offense which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office.[4] (emphasis and underscoring supplied; italics in the original)
The Court clarified, however, that it is not saying that its members are entitled to immunity from liability
for possible criminal acts or for alleged violations of the canons of judicial ethics
or codes of judicial conduct. It
stressed that there is a fundamental procedural requirement that must be
observed before such liability may be determined and enforced.
x x x A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehaviour that may be proven against him in appropriate proceedings.[5] (underscoring supplied)
The
Court declared the same principle in Jarque v. Desierto[6] by Resolution of
The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office. Hence, the moment he is no longer in office because of his removal, resignation, or permanent disability, there can be no bar to his criminal prosecution in the courts.
Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the petitioner, the former’s retirement benefits have been placed on hold in view of the provisions of Sections 12 and 13 of the Anti-Graft and Corrupt Practices Act.[7] (underscoring supplied)
The
immediately-quoted pronouncement implies that the administrative
investigation must be initiated during the incumbency of the respondent.
That the Supreme Court has overall administrative power over
its members and over all members of the judiciary has been recognized.[8]
Moreover, the Internal Rules of the Supreme Court (2010)[9]
expressly included, for the first time, “cases involving the discipline of a
Member of the Court”[10]
as among those en banc matters and cases. Elucidating on the procedure, Section 13,
Rule 2 of the Court’s Internal Rules provides:
SEC. 13. Ethics Committee. – In addition to the above, a permanent Committee on Ethics and Ethical Standards shall be established and chaired by the Chief Justice, with following membership:
a) a working Vice-Chair appointed by the Chief Justice;
b) three (3) members chosen among themselves by the en banc by secret vote; and
c) a retired Supreme Court Justice chosen by the Chief Justice as a non-voting observer-consultant.
The Vice-Chair, the Members and the Retired Supreme Court Justice shall serve for a term of one (1) year, with the election in the case of elected Members to be held at the call of the Chief Justice.
The Committee shall have the task of preliminarily investigating all complaints involving graft and corruption and violations of ethical standards, including anonymous complaints, filed against Members of the Court, and of submitting findings and recommendations to the en banc. All proceedings shall be completely confidential. The Committee shall also monitor and report to the Court the progress of the investigation of similar complaints against Supreme Court officials and employees, and handle the annual update of the Court’s ethical rules and standards for submission to the en banc. (emphasis and underscoring supplied)
The Court acknowledged its power to
take cognizance of complaints against its incumbent Members. It is circumscribed, however, by the
abovementioned principle of constitutional law[11]
in terms of grounds and penalties.
In
at least two recent instances, the Court had conducted administrative
proceedings against its incumbent Members.
In
the controversy surrounding the 1999 Bar Examinations, the Court, by Resolution
of March 22, 2000 in Bar Matter No. 979, censured then incumbent Justice
Fidel Purisima for his failure to disclose on time his relationship to an
examinee and for breach of duty and confidence, and declared forfeited
50% of the fees due him as chairperson of the 1999 Bar Examinations
Committee. The impositions did not,
however, douse the clamor for stiffer penalties on Justice Purisima in case he were
found liable after a full, thorough and formal investigation by an independent
and impartial committee, which some quarters urged the Court to form.
Meanwhile,
Justice Purisima retired from the Court on
The implication
that the Court could have imposed further administrative sanctions on Justice
Purisima had he not retired is a recognition that the Court may discipline one
of its sitting members.
Further,
the Court did not explain why the “further” imposition of administrative
sanctions was untenable except for the fact that Justice Purisima was no longer
a member of the Court. Could it be that
the earlier imposed penalties (i.e., censure and partial forfeiture of
fees) were already considered sufficient?
Could it be that the proper administrative case (arising from the earlier
bar matter) was not instituted before Justice Purisima retired? Or could it be that Justice Purisima’s
retirement benefits were already released to him, leaving the Court with nothing
more to go after to or impose (except, perhaps, disqualification to hold any
government office)?
I
thus submit that the failure to initiate an administrative proceeding prior to Justice Purisima’s retirement
made it untenable for the Court to further impose administrative sanctions on
him. What was confirmed by the Purisima
case, nonetheless, for purposes of pertinent discussion, is that the Court
has jurisdiction to take cognizance of a complaint against an incumbent
Justice.
Then
there was the case In re: Undated Letter of Mr. Louis Biraogo[12]
where Justice Ruben Reyes was, inter alia, “held liable for GRAVE
MISCONDUCT for leaking a confidential internal document of the Court” for
which he was “FINED P500,000.00, to be charged against his
retirement benefits, and disqualified to hold any office or employment in any
branch or instrumentality of the government including government-owned or
controlled corporations.”[13] The question in Biraogo was not so
much on the Court’s jurisdiction over the case but on the effect of Justice
Reyes’ subsequent retirement during the pendency of the case.
Unlike
the present case, however, impeachment proceedings against Justices Purisima
and Reyes did not see the light of day as they eventually retired, which
mandatory retirement either foreclosed the initiation of further administrative
proceedings or directed the imposable sanctions to the retirement
benefits.
In
view of the impeachment complaint filed with the House of Representatives
involving the same subject matter of the case, which denotes that a co-equal
branch of government found the same act or omission grievous as to present a
ground for impeachment and opted to exercise its constitutional function, I
submit that the Court cannot proceed with the administrative complaint against
Justice Del Castillo for it will either (i) take cognizance of an
impeachable offense which it has no jurisdiction to determine, or (ii) downplay
the questioned conduct and preempt the impeachment proceedings.
I thus join the call of Justice
Carpio to recall the Court’s
In
Biraogo, the unauthorized release of the unpromulgated ponencia of Justice Reyes in the
consolidated Limkaichong cases spawned an investigation to determine who
were responsible for the leakage of the confidential internal document of the Court. The investigation led to the disciplining
of not just Justice Reyes but also two members of his staff, who were named
without hesitation by the Court, viz., Atty. Rosendo B. Evangelista
and Armando Del Rosario, and who were held liable for SIMPLE NEGLECT OF DUTY
and ordered to pay FINE in the amount of P10,000.00 and P5,000.00,
respectively.[14]
Why,
in the present case, the legal researcher who is hiding behind her credentials
appears to be held a sacred cow, I cannot fathom. Hers is a new (or better) specie of initialed
personification (e.g., “xxx”) under the likes of Cabalquinto[15]
which should apply only to cases involving violence against women and children.[16]
The
unjustified non-disclosure of her identity is unfair to Atty. Evangelista who,
aside from having his own credentials to protect, had to be mentioned as a
matter of course in the committee report adopted by the Court in In re:
Undated Letter of Mr. Louis Biraogo, after similarly cooperating with and
explaining his side before the investigating committee.
Atty.
Evangelista was eventually found by the Court to be wanting in care and
diligence in securing the integrity and confidentiality of a document. In the present case, the Court’s
While
what was at stake in Biraogo was the “physical integrity” of a ponencia,
what is at stake in the present case is the “intellectual integrity” of
a ponencia. The Court is
committing a disservice to its judicial function if it values the physical form
of a decision more than what a decision substantially contains.
Moreover,
the liability of Justice Reyes did not save the day for Atty. Evangelista who,
as the judicial staff head, was tasked to secure and protect the copies of the Limkaichong
Decision. Similarly in the present
case, independently of Justice Del Castillo’s “shortcomings,” the legal
researcher, who was the lone drafter, proofreader and citechecker, was tasked like
any other Court Attorney to secure and ensure the substance and legal reasoning
of the Vinuya Decision. Like
Justice Reyes, Justice Del Castillo can only do so much in claiming responsibility
and full control of his office processes and shielding the staff under the
mantle of his impeachable wings.
Notably,
Rule 10.2 of Canon 10 of the Code of Professional Responsibility states that
lawyers shall “not knowingly misquote or misrepresent the contents of a
paper, the language or the argument of opposing counsel, or the text of
a decision or authority, or knowingly cite as law a provision already
rendered inoperative by repeal or amendment, or assert as a fact that which has
not been proved.” While the provision presupposes knowledge or willful intent, it does
not mean that negligent acts or omissions of the same nature by lawyers serving
the government go scot-free.
Simple
neglect of duty is defined as the failure to give proper attention to a task
expected of an employee resulting from either carelessness or indifference.[17]
I submit that the legal researcher
was remiss in her duties of re-studying the sources or authorities invoked in
the Vinuya Decision and checking the therein citations or, at the very
least, those whose authors’ rights to attribution and integrity are protected
under Intellectual Property Law. While
it is incumbent upon her to devise ways and means of legal research, her admitted
method or process as shown in the Vinuya case reflects a disregard of a
duty resulting from carelessness or indifference. She failed to exercise the required degree of
care to a task expected of a lawyer-employee of the Supreme Court.
While the Court recognizes that there
were indeed lapses in the editorial work in the drafting of the Vinuya Decision,
it easily attributed them to “accidental deletions.” It conveniently assigned such human errors to
the realm of accidents, without explaining whether it could not have
been foreseen or avoided.
I, therefore, posit that the legal researcher, who must hitherto be
named, is liable for Simple Neglect of Duty and must be ordered to pay a Fine
in the amount of, following Biraogo,
P10,000.00, with warning of more severe sanctions for future similar
conduct.
Whether
liability attaches to what the
The
matter of making corrections in judicial issuances is neither novel nor
something beneath the Court. As early as
Inadvertent typographical errors in decisions and signed resolutions of the Court may occur every now and then. As these decisions and signed resolutions are published and preserved for posterity in the Philippine Reports, the Supreme Court Reports Annotated, and other publications as well as in the Supreme Court website, the need for making them free of typographical errors cannot be overemphasized. Care should, therefore, be taken in proofreading them before they are submitted for promulgation and/or publication.
Nevertheless, should typographical errors be discovered after the promulgation and/or publication of decisions and resolutions, the following procedure should be observed to the end that unauthorized corrections, alterations, or intercalations in what are public and official documents are not made.
1. In case of decisions and signed resolutions with the author[’s] names indicated, the Reporter and the Chief of the Management Information Systems Office of the Supreme Court should secure the authority of the author concerned to make the necessary correction of typographical errors. In case of per curiam decisions and unsigned resolutions, authority to make corrections should be secured from the Chief Justice.
2. The correction of typographical errors shall be made by crossing out the incorrect word and inserting by hand the appropriate correction immediately above the cancelled word. Such correction shall be authenticated by the author by signing his initials immediately below the correction. In per curiam decisions and unsigned resolutions, and in cases where the author is no longer a member of the Court, the authentication shall be made by the Chief Justice.
3. The Reporter and the Chief of the Management Information Systems Office shall submit to the Court, through the Clerk of Court, a quarterly report of decisions and resolutions in which corrections have been made. The Clerk of Court must thereafter include the report in the agenda of the Court en banc.
This resolution takes effect
immediately.
Despite
the avowals of “slip in attribution,” “bad footnoting,” and “editorial error” in
the Court’s October 15, 2010 per curiam Decision, to date no effort has
been made to correct the Vinuya Decision in conformity with A.M. No.
00-2-05-SC, which only implies that the lapses are not typographical in nature.
The corrections of the Vinuya Decision
cannot simply be made by crossing out the incorrect word and inserting by hand
the appropriate correction immediately above the cancelled word, with
authentication by the ponente or
writer.
CONCHITA
CARPIO MORALES
Associate
Justice
[1] Constitution, Art. XI, Sec. 2.
[2] Cuenco v. Fernan, Adm. Case No. 3135, February 17, 1988, 158 SCRA 29; vide also the Resolution of April 15, 1988 (160 SCRA 778) where the complainant was severely reprimanded and warned.
[3] A.M. No. 88-4-5433,
[4]
[5]
[6]
A.C. No. 4509,
[7] Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, March 4, 2005, 452 SCRA 714, 734-735.
[8] In discussing the word “incapacitated,” Bernas said that the power to determine incapacity is part of the overall administrative power which the Supreme Court has over its members and over all members of the judiciary [Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003), p. 988].
[9] A.M. No.
10-4-20-SC (
[10]
[11] This
framework of constitutional law likewise explains why incumbent Justices of the
Supreme Court, by virtue of their being impeachable officers, are not
included from the operation of A.M. No. 02-9-02-SC on the “Automatic
Conversion of Some Administrative Cases Against Justices of the Court of
Appeals and the Sandiganbayan, Judges of Regular and Special Courts, and Court
Officials Who Are Lawyers as Disciplinary Proceedings Against Them Both as
Officials and as Members of the Philippine Bar” (September 17, 2002). The rule provides that when the said
administrative case is based on grounds which are likewise grounds for a
disciplinary action of members of the Bar, the administrative case shall also
be considered a disciplinary action against the respondent justice, judge or
court official concerned as a member of the Bar [as applied in Avancena v.
Liwanag, A.M. No. MTJ-01-1383,
[12] A.M.
No. 09-2-19-SC,
[13]
[14]
Liability of Atty.
Rosendo B. Evangelista
The Committee finds that Atty.
Evangelista, Justice Reyes’ Judicial Staff Head, was remiss in his duties,
which includes the supervision of the operations of the office, particularly
with respect to the promulgation of decisions. While it is incumbent upon him
to devise ways and means to secure the integrity of confidential documents, his
actuations reflected above evinced "a disregard of a duty resulting from
carelessness or indifference."
Atty. Evangelista was admittedly
unmindful of the responsible safekeeping of draft ponencias in an unlocked
drawer of a member of the staff. He failed to make sure that the unused portion
of confidential documents like the second signatory page of the ponencia in
Gilbert form had been properly disposed of or shredded. He was not on top of
things that concerned the promulgation of ponencias, for he failed to ascertain
the status and procedural implication of an "on hold" order after
having been apprised thereof by his subordinate, Del Rosario, on
With these findings, the Court finds
him liable for SIMPLE NEGLECT OF DUTY.
Liability
of Armando Del Rosario
The committee likewise finds Del
Rosario administratively liable for failing to exercise the required degree of
care in the custody of the Gilbert copy. Del Rosario admittedly kept the
Gilbert copy in an unlocked drawer from
Time and again, the Court has
emphasized the heavy burden and responsibility which court officials and
employees are mandated to carry. They are constantly reminded that any
impression of impropriety, misdeed or negligence in the performance of official
functions must be avoided. The Court will never countenance any conduct, act or
omission on the part of all those involved in the administration of justice
which would violate the norm of public accountability and diminish the people’s
faith in the judiciary.
Under Section 23, Rule XIV of the
Omnibus Civil Service Rules and Regulations, (simple) neglect of duty is
punishable by suspension of one month and one day to six months for the first
offense. Under Sec. 19, Rule XIV of the same Rules, the penalty of fine
(instead of suspension) may also be imposed in the alternative. Following the
Court's ruling in several cases involving (simple) neglect of duty, we find the
penalty of fine on Atty. Evangelista and Del Rosario in the amount of P10,000
and P5,000, respectively, just and reasonable. (
[15] People
v. Cabalquinto, G.R. No. 167693,
[16] Vide Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act); Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004); A.M. No. 04-10-11-SC of November 14, 2004 (Rule on Violence against Women and their Children); and A.M. No. 99-7-06-SC, In Re Internet Web page of the Supreme Court, Resolution of February 14, 2006.
[17] In Re: Undated Letter of Mr. Louis
Biraogo, supra at 162, citing Rivera v. Buena, A.M. No. P-07-2394,