Republic of the
DUCES TECUM DATED
A.M. No. 10-1-13-SC
March 2, 2010
R E S O L U T I O N
Before us for consideration are the interrelated matters listed below.
a. The subpoena duces tecum (dated
January 11, 2010 and received by this Court on January 18, 2010), issued
by the Office of the Ombudsman on the Chief, Office of the Administrative
Services or AUTHORIZED REPRESENTATIVE, Supreme Court, Manila, for the submission
to the Office of the Ombudsman of the latest Personal Data Sheets and last
known forwarding address of former Chief Justice Hilario G. Davide, Jr. and
former Associate Justice Ma. Alicia Austria-Martinez. The subpoena duces tecum
was issued in relation to a criminal complaint under (b) below, pursuant to
Section 13, Article XI of the Constitution and Section 15 of Republic Act No.
6770. The Office of the Administrative
Services (OAS) referred the matter to us on
b. Copy of the criminal complaint entitled Oliver O. Lozano and Evangeline Lozano-Endriano v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J, cited by the Ombudsman as basis for the the subpoena duces tecum it issued. We secured a copy of this criminal complaint from the Ombudsman to determine the legality and propriety of the subpoena duces tecum sought.
c. Order dated
I. The Subpoena Duces Tecum
In light of the
Ombudsmans dismissal order of
As guide in the issuance of compulsory processes to Members of this Court, past and present, in relation to complaints touching on the exercise of our judicial functions, we deem it appropriate to discuss for the record the extent of the Ombudsmans authority in these types of complaints.
In the appropriate case, the Office of the Ombudsman has full authority to issue subpoenas, including subpoena duces tecum, for compulsory attendance of witnesses and the production of documents and information relating to matters under its investigation. The grant of this authority, however, is not unlimited, as the Ombudsman must necessarily observe and abide by the terms of the Constitution and our laws, the Rules of Court and the applicable jurisprudence on the issuance, service, validity and efficacy of subpoenas. Under the Rules of Court, the issuance of subpoenas, including a subpoena duces tecum, operates under the requirements of reasonableness and relevance. For the production of documents to be reasonable and for the documents themselves to be relevant, the matter under inquiry should, in the first place, be one that the Ombudsman can legitimately entertain, investigate and rule upon.
In the present case, the matter that gave rise to the issuance of a subpoena duces tecum was a criminal complaint filed by the complainants Lozano for the alleged violation by retired Supreme Court Chief Justice Hilario Davide, Jr. and retired Associate Justice Ma. Alicia Austria-Martinez of Section 3(e) of R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act).
A first step in considering whether a criminal complaint (and its attendant compulsory processes) is within the authority of the Ombudsman to entertain (and to issue), is to consider the nature of the powers of the Supreme Court. This Court, by constitutional design, is supreme in its task of adjudication; judicial power is vested solely in the Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts, not only to settle actual controversies, but also to determine whether grave abuse of discretion amounting to lack or excess of jurisdiction has been committed in any branch or instrumentality of government. As a rule, all decisions and determinations in the exercise of judicial power ultimately go to and stop at the Supreme Court whose judgment is final. This constitutional scheme cannot be thwarted or subverted through a criminal complaint that, under the guise of imputing a misdeed to the Court and its Members, seeks to revive and re-litigate matters that have long been laid to rest by the Court. Effectively, such criminal complaint is a collateral attack on a judgment of this Court that, by constitutional mandate, is final and already beyond question.
A simple jurisprudential research would easily reveal that this Court has had the occasion to rule on the liability of Justices of the Supreme Court for violation of Section 3(e) of R.A. 3019the very same provision that the complainants Lozano invoke in this case.
In In re Wenceslao Laureta, the client of Atty. Laureta filed a complaint with the Tanodbayan charging Members of the Supreme Court with violation of Section 3(e) of Republic Act No. 3019 for having knowingly, deliberately and with bad faith rendered an unjust resolution in a land dispute. The Court unequivocally ruled that insofar as this Court and its Divisions are concerned, a charge of violation of the Anti-Graft and Corrupt Practices Act on the ground that such collective decision is unjust should not prosper; the parties cannot relitigate in another forum the final judgment of the Court, as to do so is to subordinate the Court, in the exercise of its judicial functions, to another body.
In re Joaquin T. Borromeo reiterates the Laureta ruling, particularly that (1) judgments of the Supreme Court are not reviewable; (2) administrative, civil and criminal complaints against a judge should not be turned into substitutes for appeal; (3) only courts may declare a judgment unjust; and (4) a situation where the Ombudsman is made to determine whether or not a judgment of the Court is unjust is an absurdity. The Court further discussed the requisites for the prosecution of judges, as follows:
That is not to say that it is not possible at all to prosecute judges for this impropriety, of rendering an unjust judgment or interlocutory order; but, taking account of all the foregoing considerations, the indispensable requisites are that there be a final declaration by a competent court in some appropriate proceeding of the manifestly unjust character of the challenged judgment or order, and there be also evidence of malice and bad faith, ignorance or inexcusable negligence on the part of the judge in rendering said judgment or order.
Thus, consistent with the nature of the power of this Court under our constitutional scheme, only this Court not the Ombudsman can declare a Supreme Court judgment to be unjust.
In Alzua v. Arnalot, the Court ruled that judges of superior and general jurisdiction are not liable to respond in civil action for damages, and provided this rationale for this ruling: Liability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom and would destroy that independence without which no judiciary can be either respectable or useful. The same rationale applies to the indiscriminate attribution of criminal liability to judicial officials.
Plainly, under these rulings, a criminal complaint for violation of Section 3(e) of RA 3019, based on the legal correctness of the official acts of Justices of the Supreme Court, cannot prosper and should not be entertained. This is not to say that Members of the Court are absolutely immune from suit during their term, for they are not. The Constitution provides that the appropriate recourse against them is to seek their removal from office if they are guilty of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Only after removal can they be criminally proceeded against for their transgressions. While in office and thereafter, and for their official acts that do not constitute impeachable offenses, recourses against them and their liabilities therefor are as defined in the above rulings.
Section 22 of Republic Act No. 6770, in fact, specifically grants the Ombudsman the authority to investigate impeachable officers, but only when such investigation is warranted:
Section 22. Investigatory Power. The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.
Conversely, if a complaint against an impeachable officer is unwarranted for lack of legal basis and for clear misapplication of law and jurisprudence, the Ombudsman should spare these officers from the harassment of an unjustified investigation. The present criminal complaint against the retired Justices is one such case where an investigation is not warranted, based as it is on the legal correctness of their official acts, and the Ombudsman should have immediately recognized the criminal complaint for what it is, instead of initially proceeding with its investigation and issuing a subpoena duces tecum.
II. The Ombudsmans Dismissal
of the Criminal Complant
As the Ombudsmans dismissal of the criminal complaint (Oliver O. Lozano and Evangeline Lozano-Endriano v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J) clearly implied, no complete dismissal took place as the matter was simply referred to the Supreme Court for appropriate action.
Although it was belatedly made, we cannot fault this Ombudsman action for the reasons we have already discussed above. While both accused are now retired from the service, the complaint against them still qualifies for exclusive consideration by this Court as the acts complained of spring from their judicial actions while they were with the Court. From this perspective, we therefore pass upon the prima facie merits of the complainants Lozanos criminal complaint.
a. Grounds for the Dismissal of the Complaint
By its express terms, the criminal complaint stemmed from the participation of the accused in the Resolution the First Division of this Court issued in Heirs of Antonio Pael v. Court of Appeals, docketed as G.R. Nos. 133547 and 133843. The retired Chief Justice and retired Associate Justice allegedly committed the following unlawful acts:
1) Overturning the findings of fact of the CA;
2) Stating in the Resolution that the Chin-Mallari property overlaps the UP property, when the DENR Survey Report stated that the UP title/property overlaps the Chin-Mallari property;
3) Issuing a Resolution, for which three Justices voted, to set aside a Decision for which five Justices voted.
By these acts, the retired Members of this Court are being held criminally accountable on the theory that they violated the Constitution and the law in their ruling in the cited cases, thereby causing undue injury to the parties to these cases.
After due consideration, we dismiss the criminal complaint against retired Chief Justice Hilario G. Davide, Jr. and retired Associate Justice Ma. Alicia Austria-Martinez under Section 3(e) of RA 3019. We fully expound on the reasons for this conclusion in the discussions below.
a. Contrary to the complainants position,
the Supreme Court has the power to review
the lower courts findings of fact.
The Supreme Court is the highest court of the land with the power to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of the lower courts. It has the authority to promulgate rules on practice, pleadings and admission to the bar, and suspend the operation of these rules in the interest of justice. Jurisprudence holds, too, that the Supreme Court may exercise these powers over the factual findings of the lower courts, among other prerogatives, in the following instances: (1) when the findings are grounded entirely on speculations, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd of impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misappreciation of facts; (5) when the findings of fact are conflicting; (6) when, in making its findings, the same are contrary to the admissions of both appellant and appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record. Thus, contrary to the complainants Lozano assertions in their complaint, the Supreme Court, in the proper cases, can and does rule on factual submissions before it, and even reverses the lower courts factual findings when the circumstances call for this action.
b. Constitutional Provisions were misused.
The complainants Lozano appear to us to have brazenly misquoted and misused applicable constitutional provisions to justify their case against the retired Justices. We refer particularly to their use (or strictly, misuse) of Article X, Section 2(3) of the 1973 Constitution which they claim to be the governing rule that the retired Justices should have followed in acting on Pael. This constitutional provision states:
Cases heard by a division shall be decided with the concurrence of at least five Members, but if such required number is not obtained the case shall be decided en banc; Provided, that no doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc.
For failure of the retired Justices to act according to these terms, the complainants claim that the former subverted the Constitution by reversing, by a vote of a majority of only three members, the decision of the First Division unanimously approved by its full membership of five members.
Had the complainants bothered to carefully consider the facts and developments in Pael and accordingly related these to the applicable constitutional provision, they would have discovered that Pael was decided in 2003 when the 1987 Constitution, not the 1973 Constitution, was the prevailing Charter. They then would have easily learned of the manner cases are heard and decided by Division before the Supreme Court under the 1987 Constitution. Section 4(3), Article VIII of this Constitution provides:
Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc; Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. (Emphasis supplied.)
This was the provision that governed in 2003 and still governs to this day. Thus, the complainants argument and basis for their criminal complaint that in ruling on a motion for reconsideration, all five members of the Division should concur is totally wrong.
c. The elements of the offense charged are
not sufficiently alleged in the complaint
A public official can violate Section 3(e) of Republic Act No. 3019 in two ways: (1) by causing undue injury to any party, including the Government; or (2) by giving any private party any unwarranted benefit, advantage or preference; in either case, these acts must be committed with manifest partiality, evident bad faith, or gross and inexcusable negligence.
Partiality is defined as a bias or disposition to see and report matters as wished for, rather than as they are. Bad faith connotes not only bad judgment or negligence, but also a dishonest purpose, a conscious wrongdoing, or a breach of duty amounting to fraud. Gross negligence, on the other hand, is characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences as far as other persons are concerned.
The criminal complaint in this case failed to allege the facts and circumstances showing that the retired Justices acted with partiality, bad faith or negligence. A judicial officers act in reviewing the findings of fact in a decision and voting for its reversal cannot by itself constitute a violation of Section 3(e) of Republic Act No. 3019 in the absence of facts, alleged and proven, demonstrating a dishonest purpose, conscious partiality, extrinsic fraud, or any wrongdoing on his or her part. A complainants mere disagreement with the magistrates own conclusions, to be sure, does not justify a criminal charge under Section 3(e) against the latter. In the absence of alleged and proven particular acts of manifest partiality, evident bad faith or gross inexcusable negligence, good faith and regularity are generally presumed in the performance of official duties by public officers.
For the criminal complaints fatal omissions and resultant failure to allege a prima facie case, it rightfully deserves immediate dismissal.
III. The Complainants Potential Liability
for Filing the Ombudsman Complaint
In light of the above conclusions and under the attendant circumstances of the criminal complaints, we cannot avoid considering whether the complainants Lozano acted properly as members of the Bar, as officers of this Court, and as professionals governed by norms of ethical behavior, in filing their complaint.
In their criminal complaint, the complainants gave a slanted view of the powers of this Court to suit their purposes; for these same purposes, they wrongly cited and misapplied the provisions of the Constitution, not just any ordinary statute. As lawyers, the complainants must be familiar and well acquainted with the fundamental law of the land, and are charged with the duty to apply the constitutional provisions in light of their prevailing jurisprudential interpretation. As law practitioners active in the legal and political circles, the complainants can hardly be characterized as unknowing in their misuse and misapplication of constitutional provisions. They should, at the very least, know that the 1973 Constitution and its provisions have been superseded by the 1987 Constitution, and that they cannot assail invoking the 1973 Constitution the judicial acts of members of the Supreme Court carried out in 2003 when the 1987 Constitution was in effect. Their misuse of the Constitution is made more reprehensible when the overriding thrust of their criminal complaint is considered; they used the 1973 provisions to falsely attribute malice and injustice to the Supreme Court and its Members.
In our view, the complainants errors do not belong to the genre of plain and simple errors that lawyers commit in the practice of their profession. Their plain disregard, misuse and misrepresentation of constitutional provisions constitute serious misconduct that reflects on their fitness for continued membership in the Philippine Bar. At the very least, their transgressions are blatant violations of Rule 10.02 of the Code of Professional Responsibility, which provides:
Rule 10.02. A lawyer 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 a law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. (Emphasis provided.)
To emphasize the importance of requiring lawyers to act candidly and in good faith, an identical provision is found in Cannon 22 of the Canons of Professional Ethics. Moreover, lawyers are sworn to do no falsehood, nor consent to the doing of any in court before they are even admitted to the Bar. All these the complainants appear to have seriously violated.
In the interest of due process and fair play, the complainants Lozano should be heard, in relation to their criminal complaint before the Ombudsman against retired Chief Justice Hilario G. Davide, Jr. and retired Associate Justice Ma. Alicia Austria-Martinez, on why they should not be held accountable and accordingly penalized for violations of their duties as members of the Bar and officers of this Court, and of the ethics of the legal profession.
WHEREFORE, premises considered, we DISMISS the criminal complaint entitled
Oliver O. Lozano, et al. v. Hilario G. Davide, Jr., et al.,
OMB-C-C-09-0527-J for utter lack of merit, and DECLARE as MOOT and ACADEMIC the question of
compliance with the subpoena duces tecum
We hereby ORDER the complainants Atty. Oliver O. Lozano and Atty. Evangeline Lozano-Endriano to EXPLAIN IN WRITING to this Court, within a non-extendible period of 15 days from receipt of this Resolution, why they should not be penalized as members of the Bar and as officers of this Court, for their open disregard of the plain terms of the Constitution and the applicable laws and jurisprudence, and their misuse and misrepresentation of constitutional provisions in their criminal complaint before the Office of the Ombudsman, entitled Oliver O. Lozano, et al. v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J.
ANTONIO T. CARPIO
CONCHITA CARPIO MORALES
ANTONIO EDUARDO B. NACHURA
ARTURO D. BRION
LUCAS P. BERSAMIN
ROBERTO A. ABAD
RENATO C. CORONA
PRESBITERO J. VELASCO, JR.
TERESITA J. LEONARDO-DE CASTRO
DIOSDADO M. PERALTA
 The pertinent part of the Memorandum reads:
Henceforth, on the basis of the foregoing, and in keeping with the spirit of the stated doctrine, all criminal complaints against judged and other members of the Supreme Court shall be immediately DISMISSED and REFERRED to the Supreme Court for appropriate action. The dismissal shall not in any manner touch on the merits of the complaint, and shall be made for the sole purpose of referring the same to the Supreme Court. (emphasis found in the original.)
 Section 15 of Rep. Act No. 6770 reads:
Section 15. Powers, Functions and Duties.The Office of the Ombudsman shall have the following powers functions and duties:
x x x x
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in its rules of procedure, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action;
(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.
Paragraphs 4 and 5 of Section 13, Rule XI of the Constitution are similarly phrased:
Section 13. The Office of the Ombudsman shall have the following functions and duties:
x x x x
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.
(5) Request any government agency for assistance and information in the discharge of its responsibilities, and to examine, if necessary, pertinent records and information.
 See: Sections 3 and 4, Rule 21, Rules of Court.
 CONSTITUTION, Article VIII, Section 1.
 232 Phil 353 (1987).
 To quote the pertinent portions of Laureta, pp. 384-388:
declared in the Chief Justices Statement of
Respondents should have known that the provisions of Article 204 of the Revised Penal Code as to rendering knowingly unjust judgment refer to an individual judge who does so in any case submitted to him for decision and even then, it is not the prosecutor who would pass judgment on the unjustness of the decision rendered by him but the proper appellate court with jurisdiction to review the same, either of the Court of Appeals and/or the Supreme Court. Respondents should likewise know that said penal article has no application to the members of a collegiate court such as this Court or its Divisions who reach their conclusions in consultation and accordingly render their collective judgment after due deliberation. It also follows, consequently, that a charge of violation of the Anti-Graft and Corrupt Practices Act on the ground that such a collective decision is unjust cannot prosper. (emphasis supplied)
To subject to the threat and ordeal of investigation and prosecution, a judge, more so a member of the Supreme Court for official acts done by him in good faith and in regular exercise of official duty and judicial functions is to subvert and undermine the very independence of the judiciary, and subordinate the judiciary to the executive. xxxx
To allow litigants to go beyond the Courts resolution and claim that the members acted with deliberate bad faith and rendered an unjust resolution in disregard or violation of the duty of their high office to act upon their own independent consideration and judgment of the matter at hand would be to destroy the authenticity, integrity and conclusiveness of such collegiate acts and resolution and to disregard utterly the presumption of regular performance of official duty. To allow such collateral attack would destroy the separation of powers and undermine the role of the Supreme Court as the final arbiter of all justiciable disputes.
Dissatisfied litigants and/or their counsels cannot without violating the separation of powers mandated by the Constitution relitigate in another forum the final judgment of this Court on legal issues submitted by them and their adversaries for final determination to and by the Supreme Court and which fall within judicial power to determine and adjudicate exclusively vested by the Constitution in the Supreme Court and in such inferior courts as may be established by law.
 311 Phil 441, 509 (1995).
 21 Phil 308, 326 (1912).
 CONSTITUTION, Article XI, Section 2.
 CONSTITUTION, Article VIII, Section 5(2).
 Reyes v. Montemayor, G.R. No. 166516,
September 3, 2009; Uy v. Villanueva,
G.R. No. 157851, June 29, 2007, 526 SCRA 73, 83-84; Malison v. Court of Appeals,
G.R. No. 147776,
Part of the Criminal Complaint-Affidavit for Corrupt Practices, signed by Atty.
Oliver O. Lozano and Atty. Evangeline Lozano-Endriano, received by the
 Section 3. Corrupt practices of public officers.In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of the offices or government corporations charged with the grant of licenses or permits or other concessions.
x x x x
 Velasco v. Sandiganbayan, 492 Phil 669, 677 (2005).
 Dela Chica v. Sandiganbayan, 462 Phil 712, 721 (2003); and Mendoza-Arce v. Office of the Ombudsman, 430 Phil 101, 115 (2002).
 Dela Chica v. Sandiganbayan, 462 Phil 712, 722 (2003).