Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 9 2005.

A.M. OCA IPI No. 04-2022-RTJ (PC/Insp. Marcelo B. Dayag vs. Judge Ma. Josephine Rosario-Mercado, Br. 55, Judge Herminio Z. Canlas, Br. 54, Judge Teodora R. Gonzales, MCTC, Apalit, Pampanga, and Atty. Araceli S. Crisostoino, Clerk of Court VI, OCC, all of the RTC, Macabebe, Pampanga.)

In a Complaint dated May 31, 2004, PC/Insp. Marcelo B. Dayag charged the respondent Judges with undue delay in rendering resolution, violation of the Code of Judicial Conduct, gross ignorance of the law and incompetence. The antecedents and the subsequent pleadings filed by the parties are summarized by the Court Administrator (OCA) in its Report dated November 26, 2004, as follows:

Complainant, who is the Chief of Police and Station Commander of Apalit, Pampanga, alleges that after the conduct of the 10 May 2004 election, a crowd of persons gathered in front of the municipal building of Apalit awaiting the start of the canvassing. When the ballot boxes from various precincts started to arrive, the crowd became unruly. Employees and other persons going to and from the municipal building were being jeered, heckled and accosted by members of the crowd. The incumbent mayor was advised to leave the building through the back door.

Then, a man with a sledgehammer started banging the aluminum frame and glass door of the main entrance. Several persons including two (2) candidates for Mayor and the incumbent vice-mayor entered the building and proceeded to the Office of the Mayor where they forced open the doors, broke glasses, threw out all the frame pictures hanging on the wall and announced that the incumbent vice-mayor, Alex Manlapaz, was taking over as Municipal Mayor.

Meanwhile, several ballot boxes were forcibly taken by three (3) or four (4) persons but fortunately they were recovered by some policemen. Canvassing of votes had to be transferred to the Provincial PNP Command at Camp Olivas, San Fernando, Pampanga.

It was only in the late morning of 12 May 2004 that the whole unruly crowd was dispersed by the arrival of the elements of the provincial command of the PNP. Thereafter, complainant ordered the gathering of evidence and preparation of the necessary documents for the filing of the appropriate complaints.

Complainant states that from 10 May 2004 until 14 May 2004, the MCTC of Apalit-San Simon, Pampanga was closed. On 13 May 2004, not even the prosecutor was present, hence, complainant, as well as the incumbent mayor and other witnesses, proceeded to RTC of Macabebe to file a complaint for sedition. However, both RTC judges of Macabebe were absent and only respondent Crisostomo, the Clerk of Court, was present.

Respondent Crisostomo refused to receive the criminal complaint allegedly upon instruction of the Executive Judge since the case is cognizable by the MCTC. Complainant pointed out to respondent Crisostomo that it was a matter of extreme urgency that the case be filed. Considering that MCTC Apalit is closed, the Executive Judge should assign the case to a judge from the nearest municipality within the same judicial region as mandated by the rules. Still respondent Crisostomo refused to accept the complaint.

Complainant avers that respondent Judges were remiss in their duty to hold office during working days and thus violated OCA Circular No. 62-2004. Other similar issuances which direct judges to report to their respective courts on the day of the election to be able to act on and resolve all election matters within their jurisdiction with caution and dispatch.

Respondent Judge Gonzales eventually reported for work on 17 May 2004 and the complaint for sedition was filed on the following day. Instead of conducting an Investigation, respondent Judge Gonzales curtly told complainant and the incumbent mayor to wait for her call since she had to first study the case.

It was only in the afternoon of 20 May 2004 that respondent Judge Gonzales conducted a hearing on the case. Despite complainant's request to expedite the investigation due to the prevailing tension in the municipality and the threat against the life of the incumbent mayor, respondent Judge Gonzales reset the investigation for continuation on the following day. However, no further hearing was conducted until 27 May 2004 when the case was set for preliminary investigation. Complainant claims that until the date of the filing of the instant administrative complaint, respondent Judge Gonzales has yet to take further action on the case.

Complainant concedes that the action of respondent Judge Gonzales is still within the period imposed in Sec. 9 (b), Rule 112 of the Rules of Court; however, she committed grave abuse of authority for ignoring the urgency of the matter. Moreover, they were informed that several of the accused in the case are relatives of some of the personnel of the MCTC. Complainant expressed bewilderment over respondent Judge Gonzales's continued inaction and failure to find probable cause despite the very clear circumstances stated in the complaint.

In her COMMENT dated July 16, 2004, respondent Judge Rosario-Mercado denied the allegations against her, explaining that she was on approved official leave of absence when the complaint for sedition was sought to be filed in court on May 13, 2004. Among others, she contends that the complainant's claim that respondent Atty. Crisostomo communicated with her as to whether to receive the complaint or not was a falsity, since her staff did not know her cellular phone and landline numbers. She further pointed out that in the absence of the Executive Judge, the remaining judge in a two-branch station, as in the case in RTC, Macabebe, Pampanga, shall automatically act in the former's stead; in default of both, the Executive Judge of the same level of the court in the nearest station in the province shall act as the executive judge.

Respondent Judge Rosario-Mercado also points out that complainant had other judicial remedies other than the filing of an administrative complaint if he truly believed that the RTC of Macabebe, Pampanga had jurisdiction over the case. The complainant eventually filed the criminal complaint before the MCTC of Apalit-San Simon which court has jurisdiction over the case as admitted by complainant himself.

The OCA recommended that the charges against Judge Rosario-Mercado be dismissed for lack of merit. The OCA confirmed the respondent Judge had an approved application for leave on May 13, 2004, and as such could not be held liable for dereliction of duty for her absence in her station on even date.

Considering the foregoing, the Court resolves to DISMISS the administrative complaint against Judge Ma. Josephine Rosario-Mercado for utter lack of merit.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Clerk of Court