Category: LATEST SUPREME COURT CASES


CASE NO. 2011-0085: PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR) VS. THE BUREAU OF INTERNAL REVENUE (BIR),  REPRESENTED HEREIN BY HON. JOSE MARIO BUÑAG, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF INTERNAL REVENUE, PUBLIC RESPONDENT; JOHN DOE AND JANE DOE, WHO ARE PERSONS ACTING FOR, IN BEHALF, OR UNDER THE AUTHORITY OF RESPONDENT. PUBLIC AND PRIVATE RESPONDENTS. (G.R. NO. 172087, 15 MARCH 2011, PERALTA, J.) SUBJECTS: PAGCOR NOT EXEMPT FROM CORPORATE INCOME TAX BUT EXEMPT FROM VAT; EQUAL PROTECTION CLAUSE; NON-IMPAIRMENT OF CONTRACT CLAUSE. (BRIEF TITLE: PAGCOR VS. BIR)        

 

Republic of the Philippines

Supreme Court

Manila

 

EN BANC

 

PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR),

             Petitioner,

– versus –

 

THE BUREAU OF INTERNAL REVENUE (BIR),  represented herein by HON. JOSE MARIO BUÑAG, in his official capacity as COMMISSIONER OF INTERNAL REVENUE,

             Public Respondent,

JOHN DOE and JANE DOE, who are persons acting for, in behalf, or under the authority of Respondent.

             Public and Private Respondents.        

G.R. No. 172087

 

Present:

CORONA, C.J.,

CARPIO,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,*

LEONARDO-DE CASTRO,

BRION,*

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

  VILLARAMA, JR.,

  PEREZ,

  MENDOZA, and

  SERENO, JJ.

Promulgated:

 

March 15, 2011

x————————————————————————————-x

D E C I S I O N

 

PERALTA, J.:

 For resolution of this Court is the Petition for Certiorari and Prohibition[1] with prayer for the issuance of a Temporary Restraining Order and/or Preliminary Injunction, dated April 17, 2006, of petitioner Philippine Amusement and Gaming Corporation (PAGCOR), seeking the declaration of nullity of Section 1 of Republic Act (R.A.) No. 9337 insofar as it amends Section 27 (c) of the National Internal Revenue Code of 1997, by excluding petitioner from exemption from corporate income tax for being repugnant to Sections 1 and 10 of Article III of the Constitution.  Petitioner further seeks to prohibit the implementation of Bureau of Internal Revenue (BIR) Revenue Regulations No. 16-2005 for being contrary to law.

The undisputed facts follow.

PAGCOR was created pursuant to Presidential Decree (P.D.) No. 1067-A[2] on January 1, 1977.  Simultaneous to its creation, P.D. No. 1067-B[3] (supplementing P.D. No. 1067-A) was issued exempting PAGCOR from the payment of any type of tax, except a franchise tax of five percent (5%) of the gross revenue.[4] Thereafter, on June 2, 1978, P.D. No. 1399 was issued expanding the scope of PAGCOR’s exemption.[5]

To consolidate the laws pertaining to the franchise and powers of PAGCOR, P.D. No. 1869[6] was issued.  Section 13 thereof reads as follows:

Sec. 13. Exemptions. — x x x

(1) Customs Duties, taxes and other imposts on importations. – All importations of equipment, vehicles, automobiles, boats, ships, barges, aircraft and such other gambling paraphernalia, including accessories or related facilities, for the sole and exclusive use of the casinos, the proper and efficient management and administration thereof and such other clubs, recreation or amusement places to be established under and by virtue of this Franchise shall be exempt from the payment of duties, taxes and other imposts, including all kinds of fees, levies, or charges of any kind or nature.

Vessels and/or accessory ferry boats imported or to be imported by any corporation having existing contractual arrangements with the Corporation, for the sole and exclusive use of the casino or to be used to service the operations and requirements of the casino, shall likewise be totally exempt from the payment of all customs duties, taxes and other imposts, including all kinds of fees, levies, assessments or charges of any kind or nature, whether National or Local.

 

(2) Income and other taxes. – (a) Franchise Holder: No tax of any kind or form, income or otherwise, as well as fees, charges, or levies of whatever nature, whether National or Local, shall be assessed and collected under this Franchise from the Corporation; nor shall any form of tax or charge attach in any way to the earnings of the Corporation, except a Franchise Tax of five percent (5%)of the gross revenue or earnings derived by the Corporation from its operation under this Franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description, levied, established, or collected by any municipal, provincial or national government authority.

 

(b) Others: The exemption herein granted for earnings derived from the operations conducted under the franchise, specifically from the payment of any tax, income or otherwise, as well as any form of charges, fees or levies, shall inure to the benefit of and extend to corporation(s), association(s), agency(ies), or individual(s) with whom the Corporation or operator has any contractual relationship in connection with the operations of the casino(s) authorized to be conducted under this Franchise and to those receiving compensation or other remuneration from the Corporation as a result of essential facilities furnished and/or technical services rendered to the Corporation or operator.

The fee or remuneration of foreign entertainers contracted by the Corporation or operator in pursuance of this provision shall be free of any tax.

(3) Dividend Income. − Notwithstanding any provision of law to the contrary, in the event the Corporation should declare a cash dividend income corresponding to the participation of the private sector shall, as an incentive to the beneficiaries, be subject only to a final flat income rate of ten percent (10%) of the regular income tax rates. The dividend income shall not in such case be considered as part of the beneficiaries’ taxable income; provided, however, that such dividend income shall be totally exempted from income or other form of taxes if invested within six (6) months from the date the dividend income is received in the following:

(a) operation of the casino(s) or investments in any affiliate activity that will ultimately redound to the benefit of the Corporation; or any other corporation with whom the Corporation has any existing arrangements in connection with or related to the operations of the casino(s);

(b) Government bonds, securities, treasury notes, or government debentures; or

(c) BOI-registered or export-oriented corporation(s).[7]

PAGCOR’s tax exemption was removed in June 1984 through P.D. No. 1931, but it was later restored by Letter of Instruction No. 1430, which was issued in September 1984.

On January 1, 1998, R.A. No. 8424,[8] otherwise known as the National Internal Revenue Code of 1997, took effect. Section 27 (c) of  R.A. No. 8424 provides that government-owned and controlled corporations (GOCCs) shall pay corporate income tax, except petitioner PAGCOR, the Government Service and Insurance Corporation, the Social Security System, the Philippine Health Insurance Corporation, and the Philippine Charity Sweepstakes Office, thus:

(c) Government-owned or Controlled Corporations, Agencies or Instrumentalities. – The provisions of existing special general laws to the contrary notwithstanding, all corporations, agencies or instrumentalities owned and controlled by the Government, except the Government Service and Insurance Corporation (GSIS), the Social Security System (SSS), the Philippine Health Insurance Corporation (PHIC), the Philippine Charity Sweepstakes Office (PCSO), and the Philippine Amusement and Gaming Corporation (PAGCOR), shall pay such rate of tax upon their taxable income as are imposed by this Section upon corporations or associations engaged in similar business, industry, or activity.[9]

With the enactment of R.A. No. 9337[10] on May 24, 2005, certain sections of the National Internal Revenue Code of 1997 were amended.  The particular amendment that is at issue in this case is Section 1 of R.A. No. 9337, which amended Section 27 (c) of the National Internal Revenue Code of 1997 by excluding PAGCOR from the enumeration of GOCCs that are exempt from payment of corporate income tax, thus:

(c) Government-owned or Controlled Corporations, Agencies or Instrumentalities. – The provisions of existing special general laws to the contrary notwithstanding, all corporations, agencies, or instrumentalities owned and controlled by the Government, except the Government Service and Insurance Corporation (GSIS), the Social Security System (SSS), the Philippine Health Insurance Corporation (PHIC), and the Philippine Charity Sweepstakes Office (PCSO), shall pay such rate of tax upon their taxable income as are imposed by this Section upon corporations or associations engaged in similar business, industry, or activity.

Different groups came to this Court via petitions for certiorari and prohibition[11] assailing the validity and constitutionality of R.A. No. 9337, in particular:

 1) Section 4, which imposes a 10% Value Added Tax (VAT) on sale of goods and properties; Section 5, which imposes a 10% VAT on importation of goods; and Section 6, which imposes a 10% VAT on sale of services and use or lease of properties, all contain a uniform proviso authorizing the President, upon the recommendation of the Secretary of Finance, to raise the VAT rate to 12%.  The said provisions were alleged to be violative of Section 28 (2), Article VI of the Constitution, which section vests in Congress the exclusive authority to fix the rate of taxes, and of Section 1, Article III of the Constitution on due process, as well as of Section 26 (2), Article VI of the Constitution, which section provides for the “no amendment rule” upon the last reading of a bill;

 2) Sections 8 and 12  were alleged to be violative of  Section 1, Article III of the Constitution, or the guarantee of equal protection of the laws, and Section  28 (1), Article VI of the Constitution; and

 3) other technical aspects of the passage of the law, questioning the manner  it was passed.

 On September 1, 2005, the Court dismissed all the petitions and upheld the constitutionality of R.A. No. 9337.[12]

On the same date, respondent BIR issued Revenue Regulations (RR) No. 16-­2005,[13]  specifically identifying PAGCOR as one of the franchisees subject to 10% VAT imposed under Section 108 of the National Internal Revenue Code of 1997, as amended by R.A. No. 9337.  The said revenue regulation, in part, reads:

 

Sec. 4. 108-3. Definitions and Specific Rules on Selected Services. 

x x x x

(h)  x x x

Gross Receipts of all other franchisees, other than those covered by Sec. 119 of the Tax Code, regardless of how their franchisees may have been granted, shall be subject to the 10% VAT imposed under Sec.108 of the Tax Code. This includes, among others, the Philippine Amusement and Gaming Corporation (PAGCOR), and its licensees or franchisees.

Hence, the present petition for certiorari.

PAGCOR raises the following issues:

I

WHETHER OR NOT RA 9337, SECTION 1 (C) IS NULL AND VOID AB INITIO FOR BEING REPUGNANT TO THE EQUAL PROTECTION [CLAUSE] EMBODIED IN SECTION 1, ARTICLE III OF THE 1987 CONSTITUTION.

II

WHETHER OR NOT RA 9337, SECTION 1 (C) IS NULL AND VOID AB INITIO FOR BEING REPUGNANT TO THE NON-IMPAIRMENT [CLAUSE] EMBODIED IN SECTION 10, ARTICLE III OF THE 1987 CONSTITUTION.

III

WHETHER OR NOT RR 16-2005, SECTION 4.108-3, PARAGRAPH (H) IS NULL AND VOID AB INITIO FOR BEING BEYOND THE SCOPE OF THE BASIC LAW, RA 8424, SECTION 108, INSOFAR AS THE SAID REGULATION IMPOSED VAT ON THE SERVICES OF THE PETITIONER AS WELL AS PETITIONER’S LICENSEES OR FRANCHISEES WHEN THE BASIC LAW, AS INTERPRETED BY APPLICABLE JURISPRUDENCE, DOES NOT IMPOSE VAT ON PETITIONER OR ON PETITIONER’S LICENSEES OR FRANCHISEES.[14]

The BIR, in its Comment[15] dated December 29, 2006, counters:

          I

SECTION 1 OF R.A. NO. 9337 AND SECTION 13 (2) OF P.D. 1869 ARE BOTH VALID AND CONSTITUTIONAL PROVISIONS OF LAWS THAT SHOULD BE HARMONIOUSLY CONSTRUED TOGETHER SO AS TO GIVE EFFECT TO ALL OF THEIR PROVISIONS WHENEVER POSSIBLE.

II

SECTION 1 OF R.A. NO. 9337 IS NOT VIOLATIVE OF SECTION 1 AND SECTION 10, ARTICLE III OF THE 1987 CONSTITUTION.

III

BIR REVENUE REGULATIONS ARE PRESUMED VALID AND CONSTITUTIONAL UNTIL STRICKEN DOWN BY LAWFUL AUTHORITIES.

The Office of the Solicitor General (OSG), by way of Manifestation In Lieu of Comment,[16] concurred with the arguments of the petitioner. It added that although the State is free to select the subjects of taxation and that the inequity resulting from singling out a particular class for taxation or exemption is not an infringement of the constitutional limitation, a tax law must operate with the same force and effect to all persons, firms and corporations placed in a similar situation. Furthermore, according to the OSG, public respondent BIR exceeded its statutory authority when it enacted RR No. 16-2005, because the latter’s provisions are contrary to the mandates of P.D. No. 1869 in relation to R.A. No. 9337.

The main issue is whether or not PAGCOR is still exempt from corporate income tax and VAT with the enactment of R.A. No. 9337.

After a careful study of the positions presented by the parties, this Court finds the petition partly meritorious.

Under Section 1 of R.A. No. 9337, amending  Section  27 (c) of the National Internal Revenue Code of 1977,  petitioner is no longer exempt from corporate income tax as it has been effectively omitted from the list of GOCCs that are exempt from it. Petitioner argues that such omission is unconstitutional, as it is violative of its right to equal protection of the laws under Section 1, Article III of the Constitution:

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

.

In City of Manila v. Laguio, Jr.,[17] this Court expounded the meaning and scope of equal protection, thus:

Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances. The “equal protection of the laws is a pledge of the protection of equal laws.” It limits governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their property is concerned.

x x x x

Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause. The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements:

  1) It must be based on substantial distinctions.

2)  It must be germane to the purposes of the law.

3)  It must not be limited to existing conditions only.

4)  It must apply equally to all members of the class.[18]

It is not contested that before the enactment of R.A. No. 9337, petitioner was one of the five GOCCs exempted from payment of corporate income tax as  shown in  R.A. No. 8424, Section 27 (c) of which, reads:

(c) Government-owned or Controlled Corporations, Agencies or Instrumentalities. – The provisions of existing special or general laws to the contrary notwithstanding, all corporations, agencies or instrumentalities owned and controlled by the Government, except the Government Service and Insurance Corporation (GSIS), the Social Security System (SSS), the Philippine Health Insurance Corporation (PHIC), the Philippine Charity Sweepstakes Office (PCSO), and the Philippine Amusement and Gaming Corporation (PAGCOR), shall pay such rate of tax upon their taxable income as are imposed by this Section upon corporations or associations engaged in similar business, industry, or activity.[19]

A perusal of the legislative records of the Bicameral Conference Meeting of the Committee on Ways on Means dated October 27, 1997 would show that the exemption of PAGCOR from the payment of corporate income tax was due to the acquiescence of the Committee on Ways on Means to the request of PAGCOR that it be exempt from such tax.[20]  The records of the Bicameral Conference Meeting reveal:

HON. R. DIAZ.  The other thing, sir, is we — I noticed we imposed a tax on lotto winnings.

CHAIRMAN ENRILE.  Wala na, tinanggal na namin yon.

HON. R. DIAZ.  Tinanggal na ba natin yon?

CHAIRMAN ENRILE. Oo.

HON. R. DIAZ.  Because I was wondering whether we covered the tax on — Whether on a universal basis, we included a tax on cockfighting winnings.

CHAIRMAN ENRILE.  No, we removed the —

HON. R. DIAZ.  I . . . (inaudible) natin yong lotto?

CHAIRMAN ENRILE.  Pati PAGCOR tinanggal upon request.

CHAIRMAN JAVIER.  Yeah, Philippine Insurance Commission.

CHAIRMAN ENRILE.  Philippine Insurance — Health, health ba.  Yon ang request ng Chairman, I will accept.  (laughter)  Pag-Pag-ibig yon, maliliit na sa tao yon.

HON. ROXAS.  Mr. Chairman, I wonder if in the revenue gainers if we factored in an amount that would reflect the VAT and other sales taxes—

CHAIRMAN ENRILE.  No, we’re talking of this measure only.  We will not — (discontinued)

HON. ROXAS.  No, no, no, no, from the — arising from the exemption.  Assuming that when we release the money into the hands of the public, they will not use that to — for wallpaper.  They will spend that eh, Mr. Chairman.  So when they spend that—

CHAIRMAN ENRILE.  There’s a VAT.

HON. ROXAS.  There will be a VAT and there will be other sales taxes no.  Is there a quantification?  Is there an approximation?

CHAIRMAN JAVIER.  Not anything.

HON. ROXAS.  So, in effect, we have sterilized that entire seven billion. In effect, it is not circulating in the economy which is unrealistic.

CHAIRMAN ENRILE.  It does, it does, because this is taken and spent by government, somebody receives it in the form of wages and supplies and other services and other goods.  They are not being taken from the public and stored in a vault.

CHAIRMAN JAVIER.  That 7.7 loss because of tax exemption.  That will be extra income for the taxpayers.

HON. ROXAS.  Precisely, so they will be spending it.[21]  

The discussion above bears out that under R.A. No. 8424, the exemption of PAGCOR from paying corporate income tax was not based on a classification showing substantial distinctions which make for real differences, but to reiterate, the exemption was granted upon the request of PAGCOR that it be exempt from the payment of corporate income tax.

With the subsequent enactment of R.A. No. 9337, amending R.A. No. 8424, PAGCOR has been excluded from the enumeration of GOCCs that are exempt from paying corporate income tax. The records of the Bicameral Conference Meeting dated April 18, 2005, of the Committee on the Disagreeing Provisions of Senate Bill No. 1950 and House Bill No. 3555, show that it is the legislative intent that PAGCOR be subject to the payment of corporate income tax, thus: 

                        THE CHAIRMAN (SEN. RECTO).  Yes, Osmeña, the proponent of the amendment.

 

                        SEN. OSMEÑA.  Yeah. Mr. Chairman, one of the reasons why we’re even considering this VAT bill is we want to show the world who our creditors, that we are increasing official revenues that go to the national budget. Unfortunately today, Pagcor is unofficial.

 

                        Now, in 2003, I took a quick look this morning, Pagcor had a net income of 9.7 billion after paying some small taxes that they are subjected to.  Of the 9.7 billion, they claim they remitted to national government seven billion.  Pagkatapos, there are other specific remittances like to the Philippine Sports Commission, etc., as mandated by various laws, and then about 400 million to the President’s Social Fund.  But all in all, their net profit today should be about 12 billion.  That’s why I am questioning this two billion.  Because while essentially they claim that the money goes to government, and I will accept that just for the sake of argument.  It does not pass through the appropriation process. And I think that at least if we can capture 35 percent or 32 percent through the budgetary process, first, it is reflected in our official income of government which is applied to the national budget, and secondly, it goes through what is constitutionally mandated as Congress appropriating and defining where the money is spent and not through a board of directors that has absolutely no accountability.

 

                        REP. PUENTEBELLA.  Well, with all due respect, Mr. Chairman, follow up lang.

 

                        There is wisdom in the comments of my good friend from Cebu, Senator Osmeña.

 

                        SEN. OSMEÑA.  And Negros.

 

                        REP. PUENTEBELLA.  And Negros at the same time ay Kasimanwa.  But I would not want to put my friends from the Department of Finance in a difficult position, but may we know your comments on this knowing that as Senator Osmeña just mentioned, he said, “I accept that that a lot of it is going to spending for basic services,”  you know, going to most, I think, supposedly a lot or most of it should go to government spending, social services and the like.  What is your comment on this?  This is going to affect a lot of services on the government side.

 

                        THE CHAIRMAN (REP. LAPUS).  Mr. Chair, Mr. Chair.

 

                        SEN. OSMEÑA.  It goes from pocket to the other, Monico.

 

                        REP. PUENTEBELLA.  I know that.  But I wanted to ask them, Mr. Senator, because you may have your own pre-judgment on this and I don’t blame you.  I don’t blame you.  And I know you have your own research.  But will this not affect a lot, the disbursements on social services and other?

 

                        REP. LOCSIN.  Mr. Chairman.  Mr. Chairman, if I can add to that question also.  Wouldn’t it be easier for you to explain to, say, foreign  creditors, how do you explain to them that if there is a fiscal gap some of our richest corporations has [been] spared [from] taxation by the government which is one rich source of revenues.  Now, why do you save, why do you spare certain government corporations on that, like Pagcor?  So, would it be easier for you to make an argument if everything was exposed to taxation?

 

                        REP. TEVES.  Mr. Chair, please.

 

                        THE CHAIRMAN (REP. LAPUS).  Can we ask the DOF to respond to those before we call Congressman Teves?

 

                        MR. PURISIMA.  Thank you, Mr. Chair.

 

                        Yes, from definitely improving the collection, it will help us because it will then enter as an official revenue although when dividends declare it also goes in as other income. (sic)

 

            x x x x

 

                        REP. TEVES.  Mr. Chairman.

x x x x

 

                        THE CHAIRMAN (REP. LAPUS).  Congressman Teves.

 

                        REP. TEVES.  Yeah.  Pagcor is controlled under Section 27, that is on income tax.  Now, we are talking here on value-added tax.  Do you mean to say we are going to amend it from income tax to value-added tax, as far as Pagcor is concerned?

 

                        THE CHAIRMAN (SEN. RECTO).  No. We are just amending that section with regard to the exemption from income tax of Pagcor.

 

                        x x x x

                        REP. NOGRALES.  Mr. Chairman, Mr. Chairman.  Mr. Chairman.

                        THE CHAIRMAN (REP. LAPUS).  Congressman Nograles.

                        REP. NOGRALES.  Just a point of inquiry from the Chair.  What exactly are the functions of Pagcor that are VATable?  What will we VAT in Pagcor?

                        THE CHAIRMAN (REP. LAPUS).  This is on own income tax.  This is Pagcor income tax.

                        REP. NOGRALES.  No, that’s why.  Anong i-va-Vat natin sa kanya. Sale of what?

x x x x

                        REP. VILLAFUERTE.  Mr. Chairman, my question is, what are we VATing Pagcor with, is it the . . .

                        REP. NOGRALES.  Mr. Chairman, this is a secret agreement or the way they craft their contract, which basis?

                        THE CHAIRMAN (SEN. RECTO).  Congressman Nograles, the Senate version does not discuss a VAT on Pagcor but it just takes away their exemption from non-payment of income tax.[22]

 

 

Taxation is the rule and exemption is the exception.[23] The burden of proof rests upon the party claiming exemption to prove that it is, in fact, covered by the exemption so claimed.[24] As a rule, tax exemptions are construed strongly against the claimant.[25]Exemptions must be shown to exist clearly and categorically, and supported by clear legal provision.[26]

In this case, PAGCOR failed to prove that it is still exempt from the payment of corporate income tax, considering that Section 1 of R.A. No. 9337 amended Section 27 (c) of the National Internal Revenue Code of 1997 by omitting PAGCOR from the exemption.  The legislative intent, as shown by the discussions in the Bicameral Conference Meeting, is to require PAGCOR to pay corporate income tax; hence, the omission or removal of PAGCOR from exemption from the payment of corporate income tax.  It is a basic precept of statutory construction that the express mention of one person, thing, act, or consequence excludes all others as expressed in the familiar maxim expressio unius est exclusio alterius.[27]  Thus, the express mention of the GOCCs exempted from payment of corporate income tax excludes all others.  Not being excepted, petitioner PAGCOR must be regarded as coming within the purview of the general rule that GOCCs shall pay corporate income tax, expressed in the maxim: exceptio firmat regulam in casibus non exceptis.[28]

PAGCOR cannot find support in the equal protection clause of the Constitution, as the legislative records of the Bicameral Conference Meeting dated October 27, 1997, of the Committee on Ways and Means, show that PAGCOR’s exemption from payment of corporate income tax, as provided in Section 27 (c) of R.A. No. 8424, or the National Internal Revenue Code of 1997, was not made pursuant to a valid classification based on substantial distinctions and the other requirements of  a reasonable classification by  legislative bodies, so that the law may operate only on some, and not all, without violating the equal protection clause.  The legislative records show that the basis of the grant of exemption to PAGCOR from corporate income tax was PAGCOR’s own request to be exempted.

Petitioner further contends that Section 1 (c) of R.A. No. 9337 is null and void ab initio for violating the non-impairment clause of the Constitution.  Petitioner avers that laws form part of, and is read into, the contract even without the parties expressly saying so.  Petitioner states that the private parties/investors transacting with it considered the tax exemptions, which inure to their benefit, as the main consideration and inducement for their decision to transact/invest with it.  Petitioner argues that the withdrawal of its exemption from corporate income tax by R.A. No. 9337 has the effect of changing the main consideration and inducement for the transactions of private parties with it; thus, the amendatory provision is violative of the non-impairment clause of the Constitution.

Petitioner’s contention lacks merit.

The non-impairment clause is contained in Section 10, Article III of the Constitution, which provides that no law impairing the obligation of contracts shall be passed. The non-impairment clause is limited in application to laws that derogate from prior acts orcontracts by enlarging, abridging or in any manner changing the intention of the parties.[29]  There is impairment if a subsequent law changes the terms of a contract between the parties, imposes new conditions, dispenses with those agreed upon or withdraws remedies for the enforcement of the rights of the parties.[30]

As regards franchises,  Section 11, Article XII of the  Constitution[31] provides that no franchise or right shall be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires.[32]

In Manila Electric Company v. Province of Laguna,[33] the Court held that a franchise partakes the nature of a grant, which is beyond the purview of the non-impairment clause of the Constitution.[34]  The pertinent portion of the case states:

While the Court has, not too infrequently, referred to tax exemptions contained in special franchises as being in the nature of contracts and a part of the inducement for carrying on the franchise, these exemptions, nevertheless, are far from being strictly contractual in nature. Contractual tax exemptions, in the real sense of the term and where the non-impairment clause of the Constitution can rightly be invoked, are those agreed to by the taxing authority in contracts, such as those contained in government bonds or debentures, lawfully entered into by them under enabling laws in which the government, acting in its private capacity, sheds its cloak of authority and waives its governmental immunity. Truly, tax exemptions of this kind may not be revoked without impairing the obligations of contracts. These contractual tax exemptions, however, are not to be confused with tax exemptions granted under franchises.  A franchise partakes the nature of a grant which is beyond the purview of the non-impairment clause of the Constitution. Indeed, Article XII, Section 11, of the 1987 Constitution, like its precursor provisions in the 1935 and the 1973 Constitutions, is explicit that no franchise for the operation of a public utility shall be granted except under the condition that such privilege shall be subject to amendment, alteration or repeal by Congress as and when the common good so requires.[35]

In this case, PAGCOR was granted a franchise to operate and maintain gambling casinos, clubs and other recreation or amusement places, sports, gaming pools, i.e., basketball, football, lotteries, etc., whether on land or sea, within the territorial jurisdiction of the Republic of the Philippines.[36]  Under Section 11, Article XII of the Constitution, PAGCOR’s franchise is subject to amendment, alteration or repeal by Congress such as the amendment under Section 1 of R.A. No. 9377.   Hence, the provision in Section 1 of R.A. No. 9337, amending Section 27 (c) of R.A. No. 8424 by withdrawing the exemption of PAGCOR from corporate income tax, which may affect any benefits to PAGCOR’s transactions with private parties, is not violative of the non-impairment clause of the Constitution.

Anent the validity of RR No. 16-2005, the Court holds that the provision subjecting PAGCOR to 10% VAT is invalid for being contrary to R.A. No. 9337.  Nowhere in R.A. No. 9337 is it provided that petitioner can be subjected to VAT.  R.A. No. 9337 is clear only as to the removal of petitioner’s exemption from the payment of corporate income tax, which was already addressed above by this Court.

As pointed out by the OSG, R.A. No. 9337 itself exempts petitioner from VAT pursuant to Section 7 (k) thereof, which reads:

Sec. 7. Section 109 of the same Code, as amended, is hereby further amended to read as follows:

Section 109. Exempt Transactions. – (1) Subject to the provisions of Subsection (2) hereof, the following transactions shall be exempt from the value-added tax:

x x x x

(k) Transactions which are exempt under international agreements to which the Philippines is a signatory or under special lawsexcept Presidential Decree No. 529.[37]

Petitioner is exempt from the payment of VAT, because PAGCOR’s charter, P.D. No. 1869, is a special law that grants petitioner exemption from taxes.

Moreover, the exemption of PAGCOR from VAT is supported by Section 6 of R.A. No. 9337, which retained Section 108 (B) (3) of R.A. No. 8424, thus:

[R.A. No. 9337], SEC. 6.   Section 108 of the same Code (R.A. No. 8424), as amended, is hereby further amended to read as follows:

SEC. 108.  Value-Added Tax on Sale of Services and Use or Lease of Properties

(A) Rate and Base of Tax. — There shall be levied, assessed and collected, a value-added tax equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of services, including the use or lease of properties: x x x

x x x x

 

(B)  Transactions Subject to Zero Percent (0%) Rate. — The following services performed in the Philippines by VAT-registered persons shall be subject to zero percent (0%) rate;

                        x x x x

(3)  Services rendered to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply of such services to zero percent (0%) rate;

                        x x x x[38]

 As pointed out by petitioner, although R.A. No. 9337 introduced amendments to Section 108 of R.A. No. 8424 by imposing VAT on other services not previously covered, it did not amend the portion of Section 108 (B) (3) that subjects to zero percent rate services performed by VAT-registered persons to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply of such services to 0% rate. 

 Petitioner’s exemption from VAT under Section 108 (B) (3) of R.A. No. 8424 has been thoroughly and extensively discussed in Commissioner of Internal Revenue v. Acesite (Philippines) Hotel Corporation.[39]   Acesite was the owner and operator of the Holiday Inn Manila Pavilion Hotel.  It leased a portion of the hotel’s premises to PAGCOR.  It incurred VAT amounting toP30,152,892.02 from its rental income and sale of food and beverages to PAGCOR  from January 1996 to April 1997.  Acesite tried to shift the said taxes to PAGCOR by incorporating it in the amount assessed to PAGCOR.  However, PAGCOR refused to pay the taxes because of its tax-exempt status.  PAGCOR paid only the amount due to Acesite minus VAT in the sum of P30,152,892.02. Acesite paid VAT in the amount of P30,152,892.02 to the Commissioner of Internal Revenue, fearing the legal consequences of its non-payment.  In May 1998, Acesite sought the refund of the amount it paid  as VAT on the ground that its transaction with PAGCOR was subject to zero rate as it was rendered to a tax-exempt entity.  The Court ruled that PAGCOR and Acesite were both exempt from paying VAT, thus:

x x x x

PAGCOR is exempt from payment of indirect taxes

It is undisputed that P.D. 1869, the charter creating PAGCOR, grants the latter an exemption from the payment of taxes. Section 13 of P.D. 1869 pertinently provides:

Sec. 13. Exemptions. —

x x x x

(2) Income and other taxes. – (a) Franchise Holder: No tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or Local, shall be assessed and collected under this Franchise from the Corporation; nor shall any form of tax or charge attach in any way to the earnings of the Corporation, except a Franchise Tax of five (5%) percent of the gross revenue or earnings derived by the Corporation from its operation under this Franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description, levied, established or collected by any municipal, provincial, or national government authority.

(b) Others: The exemptions herein granted for earnings derived from the operations conducted under the franchise specifically from the payment of any tax, income or otherwise, as well as any form of charges, fees or levies, shall inure to the benefit of and extend to corporation(s), association(s), agency(ies), or individual(s) with whom the Corporation or operator has any contractual relationship in connection with the operations of the casino(s) authorized to be conducted under this Franchise and to those receiving compensation or other remuneration from the Corporation or operator as a result of essential facilities furnished and/or technical services rendered to the Corporation or operator.

Petitioner contends that the above tax exemption refers only to PAGCOR’s direct tax liability and not to indirect taxes, like the VAT.

We disagree.

A close scrutiny of the above provisos clearly gives PAGCOR a blanket exemption to taxes with no distinction on whether the taxes are direct or indirect. We are one with the CA ruling that PAGCOR is also exempt from indirect taxes, like VAT, as follows:

Under the above provision [Section 13 (2) (b) of P.D. 1869], the term “Corporation” or operator refers to PAGCOR. Although the law does not specifically mention PAGCOR’s exemption from indirect taxes, PAGCOR is undoubtedly exempt from such taxes because the law exempts from taxes persons or entities contracting with PAGCOR in casino operations. Although, differently worded, the provision clearly exempts PAGCOR from indirect taxes. In fact, it goes one step further by granting tax exempt status to persons dealing with PAGCOR in casino operations. The unmistakable conclusion is that PAGCOR is not liable for the P30, 152,892.02 VAT and neither is Acesite as the latter is effectively subject to zero percent rate under Sec. 108 B (3), R.A. 8424. (Emphasis supplied.)

Indeed, by extending the exemption to entities or individuals dealing with PAGCOR, the legislature clearly granted exemption also from indirect taxes. It must be noted that the indirect tax of VAT, as in the instant case, can be shifted or passed to the buyer, transferee, or lessee of the goods, properties, or services subject to VAT. Thus, by extending the tax exemption to entities or individuals dealing with PAGCOR in casino operations, it is exempting PAGCOR from being liable to indirect taxes.

 

The manner of charging VAT does not make PAGCOR liable to said tax.

 

It is true that VAT can either be incorporated in the value of the goods, properties, or services sold or leased, in which case it is computed as 1/11 of such value, or charged as an additional 10% to the value. Verily, the seller or lessor has the option to follow either way in charging its clients and customer. In the instant case, Acesite followed the latter method, that is, charging an additional 10% of the gross sales and rentals. Be that as it may, the use of either method, and in particular, the first method, does not denigrate the fact that PAGCOR is exempt from an indirect tax, like VAT.

VAT exemption extends to Acesite

 

Thus, while it was proper for PAGCOR not to pay the 10% VAT charged by Acesite, the latter is not liable for the payment of it as it is exempt in this particular transaction by operation of law to pay the indirect tax. Such exemption falls within the former Section 102 (b) (3) of the 1977 Tax Code, as amended (now Sec. 108 [b] [3] of R.A. 8424), which provides:

Section 102. Value-added tax on sale of services.– (a) Rate and base of tax – There shall be levied, assessed and collected, a value-added tax equivalent to 10% of gross receipts derived by any person engaged in the sale of services x x x; Provided, that the following services performed in the Philippines by VAT­ registered persons shall be subject to 0%.

x x x x

(3) Services rendered to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply of such services to zero (0%) rate (emphasis supplied).

The rationale for the exemption from indirect taxes provided for in P.D. 1869 and the extension of such exemption to entities or individuals dealing with PAGCOR in casino operations are best elucidated from the 1987 case of Commissioner of Internal Revenue v. John Gotamco &Sons, Inc., where the absolute tax exemption of the World Health Organization (WHO) upon an international agreement was upheld. We held in said case that the exemption of contractee WHO should be implemented to mean that the entity or person exempt is the contractor itself who constructed the building owned by contractee WHO, and such does not violate the rule that tax exemptions are personal because the manifest intention of the agreement is to exempt the contractor so that no contractor’s tax may be shifted to the contractee WHO. Thus, the proviso in P.D. 1869, extending the exemption to entities or individuals dealing with PAGCOR in casino operations, is clearly to proscribe any indirect tax, like VAT, that may be shifted to PAGCOR.[40]

Although the basis of the exemption of PAGCOR and Acesite from VAT in the case of The Commissioner of Internal Revenue v. Acesite (Philippines) Hotel Corporation was Section 102 (b) of the 1977 Tax Code, as amended, which section was retained as Section 108 (B) (3) in R.A. No. 8424,[41]  it is still applicable to this case, since the provision relied upon has been retained in R.A. No. 9337.[42]

It is settled rule that in case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails, because the said rule or regulation cannot go beyond the terms and provisions of the basic law.[43]    RR No. 16-2005, therefore, cannot go beyond the provisions of R.A. No. 9337.  Since PAGCOR is exempt from VAT under R.A. No. 9337, the BIR exceeded its authority in subjecting PAGCOR to 10% VAT under RR No. 16-2005; hence, the said regulatory provision is hereby nullified.

WHEREFORE, the petition is PARTLY GRANTED.   Section 1 of Republic Act No. 9337, amending Section 27 (c)  of the National Internal Revenue Code of 1997, by excluding petitioner Philippine Amusement and Gaming Corporation from the enumeration of government-owned and controlled corporations exempted from corporate income tax is valid and constitutional, while BIR Revenue Regulations No. 16-2005 insofar as it subjects PAGCOR to 10% VAT is null and void for being contrary to the National Internal Revenue Code of 1997, as amended by Republic Act No. 9337.

No costs.

SO ORDERED.

 

 

                                                        DIOSDADO M. PERALTA

                                                                   Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

 

           ANTONIO T. CARPIO                CONCHITA CARPIO MORALES                                                                                                             

                  Associate Justice                                       Associate Justice

                                                                                         On Official Leave

    PRESBITERO J. VELASCO, JR.      ANTONIO EDUARDO B. NACHURA

                   Associate Justice                                       Associate Justice

                                                                                          On Official Leave

AN    TERESITA J. LEONARDO-DE CASTRO              ARTURO D. BRION

                              Associate Justice                                                Associate Justice

                               

                 

                 

 

 

                   LUCAS P. BERSAMIN                       MARIANO C. DEL CASTILLO

                         Associate Justice                                           Associate Justice

              

 

                   ROBERTO A. ABAD                           MARTIN S. VILLARAMA, JR.

                         Associate Justice                                           Associate Justice

N                     

              JOSE PORTUGAL PEREZ                        JOSE CATRAL MENDOZA

                        Associate Justice                                            Associate Justice

 

MA. LOURDES P.A. SERENO

Associate Justice

 

CERTIFICATION

          Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

                                                                            RENATO C. CORONA

                                                                                     Chief Justice                

 

 


*              On official leave.

[1]               Under Rule 65 of the Rules of Court.

[2]              CREATING THE PHILIPPINE AMUSEMENTS AND GAMING CORPORATION, DEFINING ITS POWERS AND FUNCTIONS, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES.

[3]              GRANTING THE PAGCOR A FRANCHISE TO ESTABLISH, OPERATE AND MAINTAIN GAMBLING CASINOS ON LAND OR WATER WITHIN THE TERRITORIAL JURISDICTION OF THE REPUBLIC OF THE PHILIPPINES. 

[4]                      Section 4 of P.D. No. 1067-B, provides:

                Section 4. Exemptions. 

                (1) Duties, taxes and other imposts on importations. – All importations of equipment, vehicles, boats, ships, barges, aircraft and other gambling paraphernalia or facilities for the sale and exclusive use of the casinos, clubs and other recreation or amusement places to be established under and by virtue of this Franchise shall be exempt from the payment of duties, taxes and other imports.

(2) Income and other taxes. – No income or any other form shall be assessed and collected under this Franchise from the franchise holder; nor shall any form of tax or charge attach in any way to the earnings of the franchise holder, EXCEPT a Franchise Tax of five percent (5%) of the gross revenue or earnings derived by the franchise holder from its operation under this Franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of all taxes of any kind, nature or description, levied, established, or collected by any municipal, provincial or National authority.  (Emphasis supplied.)

[5]              Section 3, P.D. No. 1399, in part, reads:

                Section 3. Section 4 of Presidential Decree No. 1067-B is hereby amended to read as follows:

Section 4. Exemptions. — x x x

(1)                 Duties, taxes and other imposts on importation. – x x x

(2)                 Income and other taxes. —

(a) Franchise Holder: No tax of any kind or form, income or otherwise, as well as fees, charges, or levies of whatever nature, shall be assessed and collected under this Franchise from the Franchise Holder; nor shall any form of tax or charge attach in any way to the earnings of the Franchise Holder, except a Franchise Tax of five percent (5 %) of the gross revenue or earnings derived by the Franchise Holder form  its operation under this Franchise. Such tax shall be due and payable to the National Government and shall be in lieu of all taxes, levies, fees or assessments of any kind, nature or description, levied, established, or collected by any municipal, provincial or national authority.

(b) Others: The exemption herein granted for earnings derived from the operations conducted under the franchise, specifically from the payment of any tax, income or otherwise, as well as any form of charges, fees or levies, shall inure to the benefit of and extend to corporation/s, association/s, agency/ies, or individual/s with whom the Franchise has any contractual relationship in connection with the operations of the casino/s authorized to be conducted under the franchise and to those receiving compensation or other remuneration from the Franchise Holder as a result of essential facilities furnished and/or technical services rendered to the Franchise Holder. (Emphasis supplied.)

[6]              CONSOLIDATING AND AMENDING PRESIDENTIAL DECREE NOS. 1067-A, 1067-B, 1067-C, 1399 AND 1632, RELATIVE TO THE FRANCHISE AND POWERS OF THE PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR).

[7]              Emphasis supplied.

[8]                      AN ACT AMENDING THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES.

[9]              Emphasis supplied.

[10]                    AN ACT AMENDING SECTIONS 27, 28, 34, 106. 107, 108, 109, 110, 111, 112, 113, 114, 116, 117, 119, 121, 148, 151, 236, 237, AND  288  OF THE NATIONAL INTERNAL REVENUE CODE OF  1997, AS AMENDED, AND FOR OTHER PURPOSES.

[11]                    G.R. Nos. 168056, 168207, 168461, 168463 and 168730.

[12]                    See Abakada Guro Party List v. Ermita, 506 Phil. 1 (2005).

[13]           Revenue Regulations No. 16-2005 states: “Pursuant to the provisions of Secs. 244 and 245 of the National Internal Revenue Code of 1997, as last amended by Republic Act No. 9337 (Tax Code), in relation to Sec. 23 of the said Republic  Act, these Regulations are hereby promulgated to implement Title IV of the Tax Code, as well as other provisions pertaining to Value-Added Tax (VAT).  These Regulations supersedes Revenue Regulations No. 14-2005 dated June 22, 2005.”          

[14]             Rollo,  pp. 18-19; 318-319.

[15]              Id. at 230-260.

[16]              Id. at 190-222.

[17]              495 Phil. 289 (2005).

[18]            Id. at 326, citing Ichong v. Hernandez, 101 Phil. 1155 (1957), 16B Am Jur. 2d § 779 299, citing State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 (1938), reh’g denied, 305 U.S. 676, 59 S. Ct. 356, 83 L. Ed. 437 (1939) and mandate conformed to, 344 Mo. 1238, 131 S.W. 2d 217 (1939), Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855, 109 Ed. Law Rep. 539, 70 Fair Empl. Prac. Cas. (BNA) 1180, 68 Empl. Prac. Dec. (CCH) 44013 (1996), Walker v. Board of Supervisors of Monroe County, 224 Miss. 801, 81 So. 2d 225 (1955), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955); Preisler v. Calcaterra, 362 Mo. 662, 243 S.W. 2d 62 (1951); Smith, Bell & Co. v. Natividad, 40 Phil. 136, 145 (1919):Nuñez v. Sandiganbayan, 197 Phil. 407 (1982); Cruz, Isagani A., Constitutional Law 125 (1998) and People v. Cayat,  68 Phil. 12 (1939).

[19]             Emphasis supplied.

[20]              Emphasis supplied.

[21]              Emphasis supplied.

[22]             Emphasis supplied.

[23]              National Power Corporation  v. Province of Isabela, G.R. No. 165827, June 16, 2006, 491 SCRA 169, 180.

[24]              Id.

[25]              National Power Corporation v. City of Cabanatuan, 449 Phil. 233, 259 (2003).

[26]              Id.

[27]              Id.; Ruben E. Agpalo, Statutory Construction, Fifth Edition, © 2003, p. 222.

[28]              C.N. Hodges v. Municipal Board, Iloilo City,  et al.,125 Phil. 442, 449 (1967); Ruben E. Agpalo, Statutory Construction, Fifth Edition, © 2003, pp. 222-223.

[29]       BANAT Party-list v. COMELEC, G.R. No. 177508, August 7, 2009, 595 SCRA 477, 498, citing Serrano v. Gallant Maritime  Services, Inc., 582 SCRA 254 (2009).

[30]                    Id., citing Clemons v. Nolting, 42 Phil. 702 (1922).

[31]              The Constitution, Art. XII, Sec. 11.  No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years.  Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires.  The State shall encourage equity participation in public utilities by the general public.   The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines. (Emphasis supplied.)

[32]              Emphasis supplied.

[33]              366 Phil. 428 (1999).

[34]              Id. at 438. (Emphasis supplied.)

[35]              Id. at 438-439. (Emphasis supplied.)

[36]              See P.D. No. 1869, Sec. 10.

[37]                    Emphasis supplied.

[38]             Emphasis supplied.

[39]                    G.R. No. 147295, February 16, 2007, 516 SCRA 93, 101, citing Commissioner of Internal Revenue v. John Gotamco Sons, Inc., 148 SCRA 36 (1987).

[40]              Id. at 98-101. (Emphasis supplied.)

[41]             R.A. No. 8424, SEC. 108.  Value-Added Tax on Sale of Services and Use or Lease of Properties x x x

                 Rate and Base of Tax. — There shall be levied, assessed and collected, a value-added tax equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of services, including the use or lease of properties.

The phrase “sale or exchange of services” means the performance of all kinds of services in the Philippines for others for a fee, remuneration or consideration, including those performed or rendered by xxx services of franchise grantees of telephone and telegraph, radio and television broadcasting and all other franchise grantees except those under Section 119 of this Code; x x x

x x x x

(B)  Transactions Subject to Zero Percent (0%) Rate.—The following services performed in the Philippines by VAT-registered persons shall be subject to zero percent (0%) rate;

x x x x

(3)  Services rendered to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply of such services to zero percent (0%) rate;

x x x x (Emphasis supplied.)

[42]             Section 6  of R.A. No. 9337states:

                SEC. 6.   Section 108 of the same Code, as amended, is hereby further amended to read as follows:

SEC. 108.  Value-Added Tax on Sale of Services and Use or Lease of Properties

(A) Rate and Base of Tax— There shall be levied, assessed and collected, a value-added tax equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of services, including the use or lease of properties x x x

  x x x x

(B)  Transactions Subject to Zero percent (0%) Rate.—The following services performed in the Philippines by VAT-registered persons shall be subject to zero percent (0%) rate;

  x x x x

(3)  Services rendered to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply of such services to zero percent (0%) rate;

x x x x (Emphasis supplied.)

[43]             Hijo Plantation, Inc.  v. Central Bank, 247 Phil. 154, 162 (1988), citing People v. Lim, 108 Phil. 1091 (1960).

CASE  2011-0084: DAVAO FRUITS CORPORATION VS. LAND BANK OF THE PHILIPPINES (G.R. NOS. 181566, 9 MARCH 2011, CARPIO, J.) SUBJECT: LAND BANK CAN INSTITUTE ACTION FOR DETERMINATION OF JUST COMPENSATION BEFORE THE SPECIAL AGRARIAN COURT. (BRIEF TITLE: DAVAO FRUITS VS. LAND BANK).

SECOND DIVISION

DAVAO FRUITS CORPORATION,                    G.R. Nos. 181566

Petitioner, and 181570

Present:

CARPIO, J., Chairperson,

– versus – VELASCO, JR.,*

PERALTA,

ABAD, and

MENDOZA, JJ.

LAND BANK OF THE PHILIPPINES,                Promulgated:

Respondent.                                                          March 9, 2011

x—————————————————————————————–x

D E C I S I O N

CARPIO, J.:

The Case

This petition for review1 assails the 28 August 2007 Consolidated Decision2 and 17 December 2007 Resolution3 of the Court of Appeals in CA-G.R. SP Nos. 75473 and 01008. In the 28 August 2007 Consolidated Decision, the Court of Appeals (1) set aside the 26 December 20024 and 28 January 2003 Orders5 of the Regional Trial Court, Tagum City, Davao del Norte (Branch 2), sitting as Special Agrarian Court (SAC) and remanded the case to the SAC for trial on the merits; and (2) denied the contempt petition filed by petitioner Davao Fruits Corporation against Land Bank of the Philippines and its counsel. The 17 December 2007 Resolution denied the motion for reconsideration.

The Antecedents

Davao Fruits Corporation (DFC) owns a bamboo plantation consisting of ten (10) parcels of land with a total area of 101.4416 hectares located in Montevista, Province of Compostela Valley.6 DFC voluntarily offered such lands for sale to the government under Republic Act No. (RA) 6657 or the Comprehensive Agrarian Reform Law of 1988 at not less than P300,000 per hectare or P30,432,480 for the entire property.

After DFC’s submission of the transfer certificates of title covering the lands and other documents, the Department of Agrarian Reform (DAR) initiated the survey, subdivision, and cancellation of the individual titles in favor of the government.

Land Bank of the Philippines (LBP) is a government banking institution designated under Section 647 of RA 6657 as the financial intermediary of the agrarian reform program of the government. The DAR and LBP computed the value of the property atP4,055,402.85 for 101.4416 hectares.8

DFC rejected the valuation. Consequently, the Provincial Agrarian Reform Officer of Davao del Norte referred the issue on just compensation to the Department of Agrarian Reform Adjudication Board (DARAB), Office of the Regional Adjudicator for summary administrative proceedings.

During the proceedings, it was established that of 101.4416 hectares only 92.0625 hectares were planted with bamboo and the rest (9.371 hectares) was brush land. In his Decision of 26 April 2002,9 DARAB Regional Adjudicator Norberto P. Sinsona fixed the price of the bamboo area at P300,000 per hectare because it was DFC’s quoted price. For the brush land, the DARAB Regional Adjudicator fixed the value at P17,154.30 per hectare. Both DFC and LBP moved for reconsideration, which the DARAB Regional Adjudicator denied in an Order dated 30 September 2002.10

On 11 October 2002, LBP filed a petition11 for the fixing of just compensation with the Regional Trial Court of Tagum City, Davao delNorte (Branch 2) sitting as SAC.

DFC moved to dismiss the petition,12 arguing among others that LBP has no authority to sue on behalf of the Republic of the Philippines and question the valuation made by the DAR. LBP opposed the motion to dismiss.13

In an Order dated 26 December 2002, the SAC dismissed LBP’s petition, reasoning that:

It appears that the two agencies do not work in harmony with each other because the petitioner questions the decision of an agency, which is also under the umbrella of the PARC. The lack of coordination between the two (2) agencies, which may frustrate the implementation program of the government, sends a wrong message to landowners and CARP beneficiaries. It could have been more logical if the landowners were the ones questioning the decision of the DAR Adjudicator. To say the least, the intention of the petition is to delay payment of just compensation, which has been properly adjudicated by the DAR Adjudicator.14

In an Order dated 28 January 2003,15 the SAC denied LBP’s motion for reconsideration.

On 11 February 2003, LBP filed a petition for review with the Court of Appeals,16 docketed as CA-G.R. SP No. 75473, questioning the dismissal of its petition before the SAC. This case was consolidated with CA-G.R. SP No. 01008 involving a petition filed by DFC to cite LBP and its counsel in contempt for LBP’s alleged violation of the rule against forum-shopping.

In its 28 August 2007 Consolidated Decision, the Court of Appeals set aside the SAC’s dismissal of LBP’s petition for determination of just compensation and at the same time denied the contempt petition against LBP and its counsel. The dispositive portion of the Court of Appeals’ decision reads:

WHEREFORE, premises considered, the Petition for Review (CA-G.R. SP No. 75473) is GRANTED. The assailed December 26, 2002 and January 28, 2003 Orders of the Special Agrarian Court are hereby SET ASIDE. Let this case be REMANDED to the Special Agrarian Court for trial on the merits.

The Petition to Cite Petitioner Land Bank of the Philippines and Counsel Danilo B. Beramo in Contempt of Court (CA-G.R. SP No. 01008) is DENIED and ordered DISMISSED.

SO ORDERED.17

In its 17 December 2007 Resolution, the Court of Appeals denied reconsideration.

Hence, DFC filed the instant petition assailing only the Court of Appeals’ ruling in CA-G.R. SP No. 75473, and not the portion dismissing the contempt petition subject of CA-G.R. SP No. 01008.

The Court of Appeals’ Ruling

The Court of Appeals found no factual basis to support SAC’s ruling that the conflicting views of the LBP and the DAR on the value of compensation “may frustrate the implementation of agrarian reform” and that the filing of the petition was intended to delay payment of just compensation. Further, the Court of Appeals rejected DFC’s contention that LBP has no personality to sue and question the valuation fixed by the RARAD. The Court of Appeals cited Section 74 of RA 384418 and Section 64 of RA 665719 and the case ofGabatin v. LBP20 in pointing out that LBP has the personality to file a petition for fixing of just compensation.

The Issue

The sole issue in this case is whether the LBP has the personality to file a petition for determination of just compensation before the SAC.

The Court’s Ruling

The petition lacks merit.

DFC contends that in filing the petition for determination of just compensation, “the LBP acted as the expropriator [and] the dispenser of police power which are the sovereign powers of the State.” DFC argues that the LBP has no authority to file an action for determination of just compensation “much less for the purpose of invalidating the finding of [the DAR] tasked to determine the initial valuation of lands covered by land reform.”

We disagree.

The LBP is an agency created primarily to provide financial support in all phases of agrarian reform pursuant to Section 74 of RA 3844 or the Agricultural Reform Code and Section 64 of RA 6657 or the Comprehensive Agrarian Reform Law of 1988.21 These provisions respectively state:

Section 74. Creation – To finance the acquisition by the Government of landed estates for division and resale to small landholders, as well as the purchase of the landholding by the agricultural lessee from the landowner, there is hereby established a body corporate to be known as the “Land Bank of the Philippines”, hereinafter called the “Bank”, which shall have its principal place of business in Manila. x x x

SEC. 64. Financial intermediary for the CARP.—The Land Bank of the Philippines shall be the financial intermediary for the CARP, and shall insure that the social justice objectives of the CARP shall enjoy a preference among its priorities.

We stated in Heirs of Roque F. Tabuena v. Land Bank of the Philippines22 that “once an expropriation proceeding for the acquisition of private agricultural lands is commenced by the DAR, the indispensable role of LBP begins.”23 In Heirs of Lorenzo and Carmen Vidad v. Land Bank of the Philippines,24 we thoroughly explained the important role of LBP in expropriation proceedings under RA 6657. We held that LBP is not merely a nominal party in the determination of just compensation, but an indispensable participant in such proceedings. As such, LBP possessed the legal personality to institute a petition for determination of just compensation in the SAC. We ruled:

There is likewise no merit in petitioners’ allegation that LBP lacks locus standi to file a case with the SAC, separate and independent from the DAR. In Heirs of Roque F. Tabuena v. Land Bank of the Philippines, we ruled that the LBP is an indispensable party in expropriation proceedings under RA 6657, and thus, has the legal personality to question the determination of just compensation, independent of the DAR. x x x

LBP is an agency created primarily to provide financial support in all phases of agrarian reform pursuant to Section 74 of Republic Act (RA) No. 3844 and Section 64 of RA No. 6657. It is vested with the primary responsibility and authority in the valuation and compensation of covered landholdings to carry out the full implementation of the Agrarian Reform Program. It may agree with the DAR and the land owner as to the amount of just compensation to be paid to the latter and may also disagree with them and bring the matter to court for judicial determination.

Once an expropriation proceeding for the acquisition of private agricultural lands is commenced by the DAR, the indispensable role of LBP begins, which clearly shows that there would never be a judicial determination of just compensation absent respondent LBP’s participation. Logically, it follows that respondent [LBP] is an indispensable party in an action for the determination of just compensation in cases arising from agrarian reform program; as such, it can file an appeal independently of DAR.

x x x

It is evident from the afore-quoted jurisprudence that the role of LBP in the CARP is more than just the ministerial duty of keeping and disbursing the Agrarian Reform Funds. As the Court had previously declared, the LBP is primarily responsible for the valuation and determination of compensation for all private lands. It has the discretion to approve or reject the land valuation and just compensation for a private agricultural land placed under the CARP. In case the LBP disagrees with the valuation of land and determination of just compensation by a party, the DAR, or even the courts, the LBP not only has the right, but the duty, to challenge the same, by appeal to the Court of Appeals or to this Court, if appropriate.25 (Emphasis supplied; citations omitted)

It is therefore beyond dispute that LBP has the legal personality to institute the petition for determination of just compensation before the SAC. Hence, the Court of Appeals did not err in setting aside the dismissal of LBP’s petition for determination of just compensation and remanding the instant case to the SAC for trial on the merits.

WHEREFORE, we DENY the petition and AFFIRM the 28 August 2007 Consolidated Decision and 17 December 2007 Resolution of the Court of Appeals in CA-G.R. SP Nos. 75473 and 01008.

Costs against petitioner.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE C. MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice

* Designated additional member per Special Order No. 933 dated 24 January 2011.

1 Under Rule 45 of the Rules of Court.

2 Rollo, pp. 7-21. Penned by Associate Justice Teresita Dy-Liacco Flores with Associate Justices Rodrigo F. Lim, Jr. and Michael P. Elbinias concurring.

3 Id. at 23-25.

4 Id. at 174. Penned by Acting Presiding Judge Erasto D. Salcedo.

5 Id. at 193-194. Penned by Acting Presiding Judge Erasto D. Salcedo.

6 Covered by the following certificates of title: T-35846 (New Visayas), T-40570 (Tagbanao), T- 40835 (Linoan), T-35850 (Linoan), T-35851 (Linoan), T-35849 (Linoan), T-35852 (Linoan), T- 35848 (Linoan), T-35847 (Linoan), and T-40836 (Bankerohan).

7 This provision states:

SEC. 64. Financial intermediary for the CARP.—The Land Bank of the Philippines shall be the financial intermediary for the CARP, and shall insure that the social justice objectives of the CARP shall enjoy a preference among its priorities.

8 Rollo, p. 8.

9 Id. at 103-106.

10 Id. at 156-159.

11 Id. at 160-164.

12 Id. at 165-169.

13 Id. at 171-173.

14 Id. at 174.

15 Id. at 193-194.

16 Id. at 12.

17 Id. at 21.

18 Otherwise known as Agricultural Land Reform Code. Section 74 thereof provides:

Section 74. Creation – To finance the acquisition by the Government of landed estates for division and resale to small landholders, as well as the purchase of the landholding by the agricultural lessee from the landowner, there is hereby established a body corporate to be known as the “Land Bank of the Philippines”, hereinafter called the “Bank”, which shall have its principal place of business in Manila. The legal existence of the Bank shall be for a period of fifty years counting from the date of the approval hereof. The Bank shall be subject to such rules and regulations as the Central Bank may from time to time promulgate.

19 This provision states:

SEC. 64. Financial intermediary for the CARP.—The Land Bank of the Philippines shall be the financial intermediary for the CARP, and shall insure that the social justice objectives of the CARP shall enjoy a Preference among its priorities.

20486 Phil. 366 (2004). In this case, the Court held that “there would never be a judicial determination of just compensation absent respondent Land Bank’s participation. Logically, it follows that respondent [Land Bank] is an indispensable party in an action for the determination of just compensation in cases arising from agrarian reform program.”

21 Heirs of Roque F. Tabuena v. Land Bank of the PhilippinesG.R. No. 180557, 26 September 2008, 566 SCRA 557, 565-566.

22 Id. at 566.

23 Id.

24 G.R. No. 166461, 30 April 2010, 619 SCRA 609.

25 Id. at 631-634.

CASE 2011-0083: RE: LETTER OF THE UP LAW FACULTY    ENTITLED “RESTORING INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION IN THE SUPREME    COURT” (A.M. NO. 10-10-4-SC, 8 MARCH 2011, LEONARDO-DE CASTRO, J.)

 

  

Republic of the Philippines

Supreme Court

Manila

 

 

EN BANC

 

RE: LETTER OF THE UP LAW FACULTY    ENTITLED “RESTORING INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION IN THE SUPREME    COURT”      A.M. No. 10-10-4-SC  

Present:

CORONA, C.J.,

CARPIO,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,*

LEONARDO-DE CASTRO,

BRION,*

PERALTA,

BERSAMIN,

DEL CASTILLO,**

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA, and

SERENO, JJ.

Promulgated:

March 8, 2011

x – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

  

DECISION

 

 

LEONARDO-DE CASTRO, J.:

 

 

          For disposition of the Court are the various submissions of the 37 respondent law professors[1] in response to the Resolution dated October 19, 2010 (the Show Cause Resolution), directing them to show cause why they should not be disciplined as members of the Bar for violation of specific provisions of the Code of Professional Responsibility enumerated therein.

          At the outset, it must be stressed that the Show Cause Resolution clearly dockets this as an administrative matter, not a special civil action for indirect contempt under Rule 71 of the Rules of Court, contrary to the dissenting opinion of Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the said October 19, 2010 Show Cause Resolution.  Neither is this a disciplinary proceeding grounded on an allegedly irregularly concluded finding of indirect contempt as intimated by Associate Justice Conchita Carpio Morales (Justice Morales) in her dissenting opinions to both the October 19, 2010 Show Cause Resolution and the present decision. 

With the nature of this case as purely a bar disciplinary proceeding firmly in mind, the Court finds that with the exception of one respondent whose compliance was adequate and another who manifested he was not a member of the Philippine Bar, the submitted explanations, being mere denials and/or tangential to the issues at hand, are decidedly unsatisfactory. The proffered defenses even more urgently behoove this Court to call the attention of respondent law professors, who are members of the Bar, to the relationship of their duties as such under the Code of Professional Responsibility to their civil rights as citizens and academics in our free and democratic republic.

          The provisions of the Code of Professional Responsibility involved in this case are as follows:

CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes.

RULE 1.02 – A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

CANON 10 – A lawyer owes candor, fairness and good faith to the court.

Rule 10.01 – A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the Court to be misled by any artifice.

Rule 10.02 – A lawyer shall not knowingly misquote or misrepresent the contents of 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.

Rule 10.03 – A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.

CANON 11 — A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.

RULE 11.05 A lawyer shall submit grievances against a Judge to the proper authorities only.

CANON 13 — A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.

          Established jurisprudence will undeniably support our view that when lawyers speak their minds, they must ever be mindful of their sworn oath to observe ethical standards of their profession, and in particular, avoid foul and abusive language to condemn the Supreme Court, or any court for that matter, for a decision it has rendered, especially during the pendency of a motion for such decision’s reconsideration.  The accusation of plagiarism against a member of this Court is not the real issue here but rather this plagiarism issue has been used to deflect everyone’s attention from the actual concern of this Court to determine by respondents’ explanations whether or not respondent members of the Bar have crossed the line of decency and acceptable professional conduct and speech and violated the Rules of Court through improper intervention or interference as third parties to a pending case. Preliminarily, it should be stressed that it was respondents themselves who called upon the Supreme Court to act on their Statement,[2] which they formally submitted, through Dean Marvic M.V.F. Leonen (Dean Leonen), for the Court’s proper disposition.  Considering the defenses of freedom of speech and academic freedom invoked by the respondents, it is worth discussing here that the legal reasoning used in the past by this Court to rule that freedom of expression is not a defense in administrative cases against lawyers for using intemperate speech in open court or in court submissions can similarly be applied to respondents’ invocation of academic freedom.  Indeed, it is precisely because respondents are not merely lawyers but lawyers who teach law and mould the minds of young aspiring attorneys that respondents’ own non-observance of the Code of Professional Responsibility, even if purportedly motivated by the purest of intentions, cannot be ignored nor glossed over by this Court.

          To fully appreciate the grave repercussions of respondents’ actuations, it is apropos to revisit the factual antecedents of this case.

BACKGROUND OF THE CASE

Antecedent Facts and Proceedings

 

          On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230) was promulgated.  On May 31, 2010, the counsel[3] for Vinuya, et al. (the “Malaya Lolas”), filed a Motion for Reconsideration of the Vinuya decision, raising solely the following grounds:

I.  OUR OWN CONSTITUTIONAL AND JURISPRUDENTIAL HISTORIES REJECT THIS HONORABLE COURTS’ (SIC) ASSERTION THAT THE EXECUTIVE’S FOREIGN POLICY PREROGATIVES ARE VIRTUALLY UNLIMITED; PRECISELY, UNDER THE RELEVANT JURISPRUDENCE AND CONSTITUTIONAL PROVISIONS, SUCH PREROGATIVES ARE PROSCRIBED BY INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN STANDARDS, INCLUDING THOSE PROVIDED FOR IN THE RELEVANT INTERNATIONAL CONVENTIONS OF WHICH THE PHILIPPINES IS A PARTY.[4]

II.  THIS HONORABLE COURT HAS CONFUSED DIPLOMATIC PROTECTION WITH THE BROADER, IF FUNDAMENTAL, RESPONSIBILITY OF STATES TO PROTECT THE HUMAN RIGHTS OF ITS CITIZENS – ESPECIALLY WHERE THE RIGHTS ASSERTED ARE SUBJECT OF ERGA OMNES OBLIGATIONS AND PERTAIN TO JUS COGENS NORMS.[5]

          On July 19, 2010,[6] counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty. Roque) and Romel Regalado Bagares (Atty. Bagares), filed a Supplemental Motion for Reconsideration in G.R. No. 162230, where they posited for the first time their charge of plagiarism as one of the grounds for reconsideration of the Vinuya decision.  Among other arguments, Attys. Roque and Bagares asserted that:

I.

IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT’S JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES – AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW – AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT’S ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE PETITION’S CLAIMS.[7]

They also claimed that “[i]n this controversy, the evidence bears out the fact not only of extensive plagiarism but of (sic) also oftwisting the true intents of the plagiarized sources by the ponencia to suit the arguments of the assailed Judgment for denying the Petition.”[8]

          According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-Decent’s article “A Fiduciary Theory of Jus Cogens;”[9] (2) Christian J. Tams’ book Enforcing Erga Omnes Obligations in International Law;[10] and (3) Mark Ellis’ article “Breaking the Silence: On Rape as an International Crime.”[11]

          On the same day as the filing of the Supplemental Motion for Reconsideration on July 19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an article, entitled “SC justice plagiarized parts of ruling on comfort women,” on the Newsbreak website.[12]  The same article appeared on the GMA News TV website also on July 19, 2010.[13]

          On July 22, 2010, Atty. Roque’s column, entitled “Plagiarized and Twisted,” appeared in the Manila Standard Today.[14]  In the said column, Atty. Roque claimed that Prof. Evan Criddle, one of the authors purportedly not properly acknowledged in theVinuya decision, confirmed that his work, co-authored with Prof. Evan Fox-Decent, had been plagiarized.  Atty. Roque quoted Prof. Criddle’s response to the post by Julian Ku regarding the news report[15] on the alleged plagiarism in the international law blog,Opinio Juris.  Prof. Criddle responded to Ku’s blog entry in this wise:

The newspaper’s[16] [plagiarism] claims are based on a motion for reconsideration filed yesterday with the Philippine Supreme Court yesterday. The motion is available here:

http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/

The motion suggests that the Court’s decision contains thirty-four sentences and citations that are identical to sentences and citations in my 2009 YJIL article (co-authored with Evan Fox-Decent). Professor Fox-Decent and I were unaware of the petitioners’ [plagiarism] allegations until after the motion was filed today.

Speaking for myself, the most troubling aspect of the court’s jus cogens discussion is that it implies that the prohibitions against crimes against humanity, sexual slavery, and torture are not jus cogens norms. Our article emphatically asserts the opposite. The Supreme Court’s decision is available here:http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm[17]

          On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the Court in reply to the charge of plagiarism contained in the Supplemental Motion for Reconsideration.[18]

          In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya decision, Dr. Mark Ellis, wrote the Court, to wit:

Your Honours:

I write concerning a most delicate issue that has come to my attention in the last few days.

Much as I regret to raise this matter before your esteemed Court, I am compelled, as a question of the integrity of my work as an academic and as an advocate of human rights and humanitarian law, to take exception to the possible unauthorized use of my law review article on rape as an international crime in your esteemed Court’s Judgment in the case of Vinuya et al. v. Executive Secretary et al. (G.R. No. 162230, Judgment of 28 April 2010).

My attention was called to the Judgment and the issue of possible plagiarism by the Philippine chapter of the Southeast Asia Media Legal Defence Initiative (SEAMLDI),[19] an affiliate of the London-based Media Legal Defence Initiative (MLDI), where I sit as trustee.

In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28, of the said Judgment of your esteemed Court. I am also concerned that your esteemed Court may have misread the arguments I made in the article and employed them for cross purposes. This would be ironic since the article was written precisely to argue for the appropriate legal remedy for victims of war crimes, genocide, and crimes against humanity.

I believe a full copy of my article as published in the Case Western Reserve Journal of International Law in 2006 has been made available to your esteemed Court. I trust that your esteemed Court will take the time to carefully study the arguments I made in the article.

I would appreciate receiving a response from your esteemed Court as to the issues raised by this letter.

With respect,

      (Sgd.)

Dr. Mark Ellis[20]

In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee on Ethics and Ethical Standards (the Ethics Committee) pursuant to Section 13, Rule 2 of the Internal Rules of the Supreme Court.  In an En BancResolution also dated July 27, 2010, the Court referred the July 22, 2010 letter of Justice Del Castillo to the Ethics Committee.  The matter was subsequently docketed as A.M. No. 10-7-17-SC.

On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to comment on the letter of Justice Del Castillo.[21]

On August 9, 2010, a statement dated July 27, 2010, entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court” (the Statement), was posted in Newsbreak’s website[22] and on Atty. Roque’s blog.[23]  A report regarding the statement also appeared on various on-line news sites, such as the GMA News TV[24] and the Sun Star[25] sites, on the same date.  The statement was likewise posted at the University of the Philippines College of Law’s bulletin board allegedly on August 10, 2010[26] and at said college’s website.[27]

On August 11, 2010, Dean Leonen submitted a copy of the Statement of the University of the Philippines College of Law Faculty (UP Law faculty) to the Court, through Chief Justice Renato C. Corona (Chief Justice Corona).  The cover letter dated August 10, 2010 of Dean Leonen read:

The Honorable

Supreme Court of the Republic of the Philippines

Through:          Hon. Renato C. Corona

                        Chief Justice

Subject:           Statement of faculty

                        from the UP College of Law

                        on the Plagiarism in the case of

                        Vinuya v Executive Secretary

Your Honors:

We attach for your information and proper disposition a statement signed by thirty[-]eight (38)[28] members of the faculty of the UP College of Law. We hope that its points could be considered by the Supreme Court en banc.

                                                Respectfully,

                                                      (Sgd.)

                                                Marvic M.V.F. Leonen

                                                Dean and Professor of Law

(Emphases supplied.)

The copy of the Statement attached to the above-quoted letter did not contain the actual signatures of the alleged signatories but only stated the names of 37 UP Law professors with the notation (SGD.) appearing beside each name.  For convenient reference, the text of the UP Law faculty Statement is reproduced here:

RESTORING INTEGRITY

A STATEMENT BY THE FACULTY OF

THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW

ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION

IN THE SUPREME COURT

An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war.  After they courageously came out with their very personal stories of abuse and suffering as “comfort women”, waited for almost two decades for any meaningful relief from their own government as well as from the government of Japan, got their hopes up for a semblance of judicial recourse in the case ofVinuya v. Executive Secretary, G.R. No. 162230 (28 April 2010), they only had these hopes crushed by a singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land.

It is within this frame that the Faculty of the University of the Philippines College of Law views the charge that an Associate Justice of the Supreme Court committed plagiarism and misrepresentation in Vinuya v. Executive Secretary.  The plagiarism and misrepresentation are not only affronts to the individual scholars whose work have been appropriated without correct attribution, but also a serious threat to the integrity and credibility of the Philippine Judicial System.

In common parlance, ‘plagiarism’ is the appropriation and misrepresentation of another person’s work as one’s own.  In the field of writing, it is cheating at best, and stealing at worst.  It constitutes a taking of someone else’s ideas and expressions, including all the effort and creativity that went into committing such ideas and expressions into writing, and then making it appear that such ideas and expressions were originally created by the taker.  It is dishonesty, pure and simple.  A judicial system that allows plagiarism in any form is one that allows dishonesty.  Since all judicial decisions form part of the law of the land, to allow plagiarism in the Supreme Court is to allow the production of laws by dishonest means.  Evidently, this is a complete perversion and falsification of the ends of justice.

A comparison of the Vinuya decision and the original source material shows that the ponente merely copied select portions of other legal writers’ works and interspersed them into the decision as if they were his own, original work.  Under the circumstances, however, because the Decision has been promulgated by the Court, the Decision now becomes the Court’s and no longer just the ponente’s.  Thus the Court also bears the responsibility for the Decision.  In the absence of any mention of the original writers’ names and the publications from which they came, the thing speaks for itself.

So far there have been unsatisfactory responses from the ponente of this case and the spokesman of the Court.

It is argued, for example, that the inclusion of the footnotes from the original articles is a reference to the ‘primary’ sources relied upon.  This cursory explanation is not acceptable, because the original authors’ writings and the effort they put into finding and summarizing those primary sources are precisely the subject of plagiarism.  The inclusion of the footnotes together with portions of their writings in fact aggravates, instead of mitigates, the plagiarism since it provides additional evidence of a deliberate intention to appropriate the original authors’ work of organizing and analyzing those primary sources.

It is also argued that the Members of the Court cannot be expected to be familiar with all legal and scholarly journals.  This is also not acceptable, because personal unfamiliarity with sources all the more demands correct and careful attribution and citation of the material relied upon.  It is a matter of diligence and competence expected of all Magistrates of the Highest Court of the Land.

But a far more serious matter is the objection of the original writers, Professors Evan Criddle and Evan Fox-Descent, that the High Court actually misrepresents the conclusions of their work entitled “A Fiduciary Theory of Jus Cogens,” the main source of the plagiarized text.  In this article they argue that the classification of the crimes of rape, torture, and sexual slavery as crimes against humanity have attained the status of jus cogens, making it obligatory upon the State to seek remedies on behalf of its aggrieved citizens.  Yet, the Vinuya decision uses parts of the same article to arrive at the contrary conclusion.  This exacerbates the intellectual dishonesty of copying works without attribution by transforming it into an act of intellectual fraud by copying works in order to mislead and deceive.

The case is a potential landmark decision in International Law, because it deals with State liability and responsibility for personal injury and damage suffered in a time of war, and the role of the injured parties’ home States in the pursuit of remedies against such injury or damage.  National courts rarely have such opportunities to make an international impact.  That the petitioners were Filipino “comfort women” who suffered from horrific abuse during the Second World War made it incumbent on the Court of last resort to afford them every solicitude.  But instead of acting with urgency on this case, the Court delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court decided this case based on polluted sources.  By so doing, the Supreme Court added insult to injury by failing to actually exercise its “power to urge and exhort the Executive Department to take up the claims of the Vinuya petitioners.  Its callous disposition, coupled with false sympathy and nonchalance, belies a more alarming lack of concern for even the most basic values of decency and respect.  The reputation of the Philippine Supreme Court and the standing of the Philippine legal profession before other Judiciaries and legal systems are truly at stake.

The High Court cannot accommodate less than absolute honesty in its decisions and cannot accept excuses for failure to attain the highest standards of conduct imposed upon all members of the Bench and Bar because these undermine the very foundation of its authority and power in a democratic society.  Given the Court’s recent history and the controversy that surrounded it, it cannot allow the charges of such clear and obvious plagiarism to pass without sanction as this would only further erode faith and confidence in the judicial system.  And in light of the significance of this decision to the quest for justice not only of Filipino women, but of women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and misinterpreted texts.

The Court cannot regain its credibility and maintain its moral authority without ensuring that its own conduct, whether collectively or through its Members, is beyond reproach.  This necessarily includes ensuring that not only the content, but also the processes of preparing and writing its own decisions, are credible and beyond question.  The Vinuya Decision must be conscientiously reviewed and not casually cast aside, if not for the purpose of sanction, then at least for the purpose of reflection and guidance.  It is an absolutely essential step toward the establishment of a higher standard of professional care and practical scholarship in the Bench and Bar, which are critical to improving the system of administration of justice in the Philippines.  It is also a very crucial step in ensuring the position of the Supreme Court as the Final Arbiter of all controversies:  a position that requires competence and integrity completely above any and all reproach, in accordance with the exacting demands of judicial and professional ethics.

With these considerations, and bearing in mind the solemn duties and trust reposed upon them as teachers in the profession of Law, it is the opinion of the Faculty of the University of the Philippine College of Law that:

(1)         The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable, unethical and in breach of the high standards of moral conduct and judicial and professional competence expected of the Supreme Court;

(2)         Such a fundamental breach endangers the integrity and credibility of the entire Supreme Court and undermines the foundations of the Philippine judicial system by allowing implicitly the decision of cases and the establishment of legal precedents through dubious means;

(3)         The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein;

(4)         In light of the extremely serious and far-reaching nature of the dishonesty and to save the honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions that the Court may consider appropriate;

(5)         The Supreme Court must take this opportunity to review the manner by which it conducts research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in pleadings, practice, and adjudication.

Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010.

(SGD.) MARVIC M.V.F. LEONEN

Dean and Professor of Law

(SGD.) FROILAN M. BACUNGAN     Dean (1978-1983) (SGD.) PACIFICO A. AGABIN             Dean (1989-1995)
(SGD.) MERLIN M. MAGALLONA     Dean (1995-1999) (SGD.) SALVADOR T. CARLOTA             Dean (2005-2008)

            and Professor of Law

 

REGULAR FACULTY

(SGD.) CARMELO V. SISONProfessor (SGD.) JAY L. BATONGBACALAssistant Professor
(SGD.) PATRICIA R.P. SALVADOR DAWAYAssociate Dean and Associate Professor (SGD.) EVELYN (LEO) D. BATTAD Assistant Professor
(SGD.) DANTE B. GATMAYTANAssociate Professor (SGD.) GWEN G. DE VERAAssistant Professor
(SGD.) THEODORE O. TEAssistant Professor (SGD.) SOLOMON F. LUMBAAssistant Professor
(SGD.) FLORIN T. HILBAYAssistant Professor (SGD.) ROMMEL J. CASISAssistant Professor

LECTURERS

(SGD.) JOSE GERARDO A. ALAMPAY                 (SGD.) JOSE C. LAURETA

 

(SGD.) ARTHUR P. AUTEA                                     (SGD.) DINA D. LUCENARIO

 

(SGD.) ROSA MARIA J. BAUTISTA                                   (SGD.) OWEN J. LYNCH

 

(SGD.) MARK R. BOCOBO                                     (SGD.) ANTONIO M. SANTOS

 

(SGD.) DAN P. CALICA                                           (SGD.) VICENTE V. MENDOZA

 

(SGD.) TRISTAN A. CATINDIG                              (SGD.) RODOLFO NOEL S. QUIMBO

 

(SGD.) SANDRA MARIE O. CORONEL                 (SGD.) GMELEEN FAYE B. TOMBOC

 

(SGD.) ROSARIO O. GALLO                                              (SGD.) NICHOLAS FELIX L. TY

 

(SGD.) CONCEPCION L. JARDELEZA                 (SGD.) EVALYN G. URSUA

 

(SGD.) ANTONIO G.M. LA VIÑA                           (SGD.) RAUL T. VASQUEZ

 

(SGD.) CARINA C. LAFORTEZA                           (SGD.) SUSAN D. VILLANUEVA[29]

                                                                                                            (Underscoring supplied.)

Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made known his sentiments on the alleged plagiarism issue to the Court.[30]  We quote Prof. Tams’ letter here:

Glasgow, 18 August 2010

Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)

Hon. Renato C. Corona, Chief Justice

Your Excellency,

My name is Christian J. Tams, and I am a professor of international law at the University of Glasgow. I am writing to you in relation to the use of one of my publications in the above-mentioned judgment of your Honourable Court.

The relevant passage of the judgment is to be found on p. 30 of your Court’s Judgment, in the section addressing the concept of obligations erga omnes. As the table annexed to this letter shows, the relevant sentences were taken almost word by word from the introductory chapter of my bookEnforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005). I note that there is a generic reference to my work in footnote 69 of the Judgment, but as this is in relation to a citation from another author (Bruno Simma) rather than with respect to the substantive passages reproduced in the Judgment, I do not think it can be considered an appropriate form of referencing.

I am particularly concerned that my work should have been used to support the Judgment’s cautious approach to the erga omnes concept. In fact, a most cursory reading shows that my book’s central thesis is precisely the opposite: namely that the erga omnes concept has been widely accepted and has a firm place in contemporary international law. Hence the introductory chapter notes that “[t]he present study attempts to demystify aspects of the ‘very mysterious’ concept and thereby to facilitate its implementation” (p. 5). In the same vein, the concluding section notes that “the preceding chapters show that the concept is now a part of the reality of international law, established in the jurisprudence of courts and the practice of States” (p. 309).

With due respect to your Honourable Court, I am at a loss to see how my work should have been cited to support – as it seemingly has – the opposite approach. More generally, I am concerned at the way in which your Honourable Court’s Judgment has drawn on scholarly work without properly acknowledging it.

On both aspects, I would appreciate a prompt response from your Honourable Court.

I remain

Sincerely yours

                                                                        (Sgd.)

                                                            Christian J. Tams[31]

In the course of the submission of Atty. Roque and Atty. Bagares’ exhibits during the August 26, 2010 hearing in the ethics case against Justice Del Castillo, the Ethics Committee noted that Exhibit “J” (a copy of the Restoring Integrity Statement) was not signed but merely reflected the names of certain faculty members with the letters (SGD.) beside the names. Thus, the Ethics Committee directed Atty. Roque to present the signed copy of the said Statement within three days from the August 26 hearing.[32]

It was upon compliance with this directive that the Ethics Committee was given a copy of the signed UP Law Faculty Statement that showed on the signature pages the names of the full roster of the UP Law Faculty, 81 faculty members in all. Indubitable from the actual signed copy of the Statement was that only 37 of the 81 faculty members appeared to have signed the same.  However, the 37 actual signatories to the Statement did not include former Supreme Court Associate Justice Vicente V. Mendoza (Justice Mendoza) as represented in the previous copies of the Statement submitted by Dean Leonen and Atty. Roque.  It also appeared that Atty. Miguel R. Armovit (Atty. Armovit) signed the Statement although his name was not included among the signatories in the previous copies submitted to the Court.  Thus, the total number of ostensible signatories to the Statement remained at 37.

The Ethics Committee referred this matter to the Court en banc since the same Statement, having been formally submitted by Dean Leonen on August 11, 2010, was already under consideration by the Court.[33]

     

In a Resolution dated October 19, 2010, the Court en banc made the following observations regarding the UP Law Faculty Statement:

Notably, while the statement was meant to reflect the educators’ opinion on the allegations of plagiarism against Justice Del Castillo, they treated such allegation not only as an established fact, but a truth. In particular, they expressed dissatisfaction over Justice Del Castillo’s explanation on how he cited the primary sources of the quoted portions and yet arrived at a contrary conclusion to those of the authors of the articles supposedly plagiarized.

Beyond this, however, the statement bore certain remarks which raise concern for the Court. The opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:

An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war.

  The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.  

 The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of “polluted sources,” the Court’s alleged indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect.[34] x x x. (Underscoring ours.)

In the same Resolution, the Court went on to state that:

While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must “insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice.

The Court could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort women’s claims is not controversial enough, the UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneysand not to promote distrust in the administration of justice.[35] x x x. (Citations omitted; emphases and underscoring supplied.)

Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, Susan D. Villanueva and Dina D. Lucenario to show cause, within ten (10) days from receipt of the copy of the Resolution, why they should not be disciplined as members of the Bar for violation of Canons 1,[36] 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.[37]

Dean Leonen was likewise directed to show cause within the same period why he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting through his letter dated August 10, 2010, during the pendency of G.R. No. 162230 and of the investigation before the Ethics Committee, for the consideration of the Court en banc, a dummy which is not a true and faithful reproduction of the UP Law Faculty Statement.[38]

In the same Resolution, the present controversy was docketed as a regular administrative matter.

Summaries of the Pleadings Filed by Respondents in Response to the October 19, 2010 Show Cause Resolution

          On November 19, 2010, within the extension for filing granted by the Court, respondents filed the following pleadings:

(1)    Compliance dated November 18, 2010 by counsels for 35 of the 37 respondents, excluding Prof. Owen Lynch and Prof. Raul T. Vasquez, in relation to the charge of violation of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility;

(2)    Compliance and Reservation dated November 18, 2010 by Prof. Rosa Maria T. Juan-Bautista in relation to the same charge in par. (1);

(3)    Compliance dated November 19, 2010 by counsel for Prof. Raul T. Vasquez in relation to the same charge in par. (1);

(4)    Compliance dated November 19, 2010 by counsels for Dean Leonen, in relation to the charge of violation of Canon 10, Rules 10.01, 10.02 and 10.03; and

(5)    Manifestation dated November 19, 2010 by counsel for Prof. Owen Lynch.

Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and Prof. Raul Vasquez)

          Thirty-five (35) of the respondent UP Law professors filed on November 19, 2010 a common compliance which was signed by their respective counsels (the Common Compliance).  In the “Preface” of said Common Compliance, respondents stressed that “[they] issued the Restoring Integrity Statement in the discharge of the ‘solemn duties and trust reposed upon them as teachers in the profession of law,’ and as members of the Bar to speak out on a matter of public concern and one that is of vital interest to them.”[39]  They likewise alleged that “they acted with the purest of intentions” and pointed out that “none of them was involved either as party or counsel”[40] in the Vinuya case.  Further, respondents “note with concern” that the Show Cause Resolution’s findings and conclusions were “a prejudgment – that respondents indeed are in contempt, have breached their obligations as law professors and officers of the Court, and have violated ‘Canons [1], 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.”[41]

          By way of explanation, the respondents emphasized the following points:

(a) Respondents’ alleged noble intentions

In response to the charges of failure to observe due respect to legal processes[42] and the courts[43] and of tending to influence, or giving the appearance of influencing the Court[44] in the issuance of their Statement, respondents assert that their intention was not to malign the Court but rather to defend its integrity and credibility and to ensure continued confidence in the legal system.  Their noble motive was purportedly evidenced by the portion of their Statement “focusing on constructive action.”[45] Respondents’ call in the Statement for the Court “to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in adjudication,” was reputedly “in keeping with strictures enjoining lawyers to ‘participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice’” (under Canon 4 of the Code of Professional Responsibility) and to “promote respect for the law and legal processes” (under Canon 1, id.).[46]  Furthermore, as academics, they allegedly have a “special interest and duty to vigilantly guard against plagiarism and misrepresentation because these unwelcome occurrences have a profound impact in the academe, especially in our law schools.”[47]

Respondents further “[called] on this Court not to misconstrue the Restoring Integrity Statement as an ‘institutional attack’ x x x on the basis of its first and ninth paragraphs.”[48]  They further clarified that at the time the Statement was allegedly drafted and agreed upon, it appeared to them the Court “was not going to take any action on the grave and startling allegations of plagiarism and misrepresentation.”[49]  According to respondents, the bases for their belief were (i) the news article published on July 21, 2010 in the Philippine Daily Inquirer wherein Court Administrator Jose Midas P. Marquez was reported to have said that Chief Justice Corona would not order an inquiry into the matter;[50] and (ii) the July 22, 2010 letter of Justice Del Castillo which they claimed “did nothing but to downplay the gravity of the plagiarism and misrepresentation charges.”[51]  Respondents claimed that it was their perception of the Court’s indifference to the dangers posed by the plagiarism allegations against Justice Del Castillo that impelled them to urgently take a public stand on the issue.

(b) The “correctness” of respondents’ position that Justice Del Castillo committed plagiarism and should be held accountable in accordance with the standards of academic writing

A significant portion of the Common Compliance is devoted to a discussion of the merits of respondents’ charge of plagiarism against Justice Del Castillo.  Relying on University of the Philippines Board of Regents v. Court of Appeals[52] and foreign materials and jurisprudence, respondents essentially argue that their position regarding the plagiarism charge against Justice Del Castillo is the correct view and that they are therefore justified in issuing their Restoring Integrity Statement.  Attachments to the Common Compliance included, among others: (i) the letter dated October 28, 2010 of Peter B. Payoyo, LL.M, Ph.D.,[53] sent to Chief Justice Corona through Justice Sereno, alleging that the Vinuya decision likewise lifted without proper attribution the text from a legal article by Mariana Salazar Albornoz that appeared in the Anuario Mexicano De Derecho Internacional and from an International Court of Justice decision; and (ii) a 2008 Human Rights Law Review Article entitled “Sexual Orientation, Gender Identity and International Human Rights Law” by Michael O’Flaherty and John Fisher, in support of their charge that Justice Del Castillo also lifted passages from said article without proper attribution, but this time, in his ponencia in Ang Ladlad LGBT Party v. Commission on Elections.[54]

(c) Respondents’ belief that they are being “singled out” by the Court when others have likewise spoken on the “plagiarism issue

In the Common Compliance, respondents likewise asserted that “the plagiarism and misrepresentation allegations are legitimate public issues.”[55] They identified various published reports and opinions, in agreement with and in opposition to the stance of respondents, on the issue of plagiarism, specifically:

(i)                Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero;[56]

(ii)             Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on July 24, 2010;[57]

(iii)           Editorial of the Philippine Daily Inquirer published on July 25, 2010;[58]

(iv)           Letter dated July 22, 2010 of Justice Del Castillo published in the Philippine Star on July 30, 2010;[59]

(v)             Column of Former Intellectual Property Office Director General Adrian Cristobal, Jr. published in the Business Mirror on August 5, 2010;[60]

(vi)           Column of Former Chief Justice Artemio Panganiban published in the Philippine Daily Inquirer on August 8, 2010;[61]

(vii)        News report regarding Senator Francis Pangilinan’s call for the resignation of Justice Del Castillo published in the Daily Tribune and the Manila Standard Today on July 31, 2010;[62]  

(viii)      News reports regarding the statement of Dean Cesar Villanueva of the Ateneo de Manila University School of Law on the calls for the resignation of Justice Del Castillo published in The Manila Bulletin, the Philippine Star and the Business Mirror on August 11, 2010;[63] 

(ix)           News report on expressions of support for Justice Del Castillo from a former dean of the Pamantasan ng Lungsod ng Maynila, the Philippine Constitutional Association, the Judges Association of Bulacan and the Integrated Bar of the Philippines – Bulacan Chapter published in the Philippine Star on August 16, 2010;[64] and

(x)             Letter of the Dean of the Liceo de Cagayan University College of Law published in the Philippine Daily Inquirer on August 10, 2010.[65]   

In view of the foregoing, respondents alleged that this Court has singled them out for sanctions and the charge in the Show Cause Resolution dated October 19, 2010 that they may have violated specific canons of the Code of Professional Responsibility is unfair and without basis.

(d) Freedom of expression

In paragraphs 28 to 30 of the Common Compliance, respondents briefly discussed their position that in issuing their Statement, “they should be seen as not only to be performing their duties as members of the Bar, officers of the court, and teachers of law, but also as citizens of a democracy who are constitutionally protected in the exercise of free speech.”[66]  In support of this contention, they cited United States v. Bustos,[67] In re: Atty. Vicente Raul Almacen, [68] and In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections.[69]

(e) Academic freedom

          In paragraphs 31 to 34 of the Common Compliance, respondents asserted that their Statement was also issued in the exercise of their academic freedom as teachers in an institution of higher learning.  They relied on Section 5 of the University of the Philippines Charter of 2008 which provided that “[t]he national university has the right and responsibility to exercise academic freedom.”  They likewise adverted to Garcia v. The Faculty Admission Committee, Loyola School of Theology[70] which they claimed recognized the extent and breadth of such freedom as to encourage a free and healthy discussion and communication of a faculty member’s field of study without fear of reprisal.  It is respondents’ view that had they remained silent on the plagiarism issue in the Vinuya decision they would have “compromised [their] integrity and credibility as teachers; [their silence] would have created a culture and generation of students, professionals, even lawyers, who would lack the competence and discipline for research and pleading; or, worse, [that] their silence would have communicated to the public that plagiarism and misrepresentation are inconsequential matters and that intellectual integrity has no bearing or relevance to one’s conduct.”[71]

          In closing, respondents’ Common Compliance exhorted this Court to consider the following portion of the dissenting opinion of Justice George A. Malcolm in Salcedo v. Hernandez,[72] to wit:

Respect for the courts can better be obtained by following a calm and impartial course from the bench than by an attempt to compel respect for the judiciary by chastising a lawyer for a too vigorous or injudicious exposition of his side of a case. The Philippines needs lawyers of independent thought and courageous bearing, jealous of the interests of their clients and unafraid of any court, high or low, and the courts will do well tolerantly to overlook occasional intemperate language soon to be regretted by the lawyer which affects in no way the outcome of a case.[73]

          On the matter of the reliefs to which respondents believe they are entitled, the Common Compliance stated, thus:

WHEREFORE:

A.        Respondents, as citizens of a democracy, professors of law, members of the Bar and officers of the Court, respectfully pray that:

 

1.      the foregoing be noted; and

2.      the Court reconsider and reverse its adverse findings in the Show Cause Resolution, including its conclusions that respondents have:  [a] breached their “obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, … and not to promote distrust in the administration of justice;” and [b] committed “violations of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.”

B.        In the event the Honorable Court declines to grant the foregoing prayer, respondents respectfully pray, in the alternative, and in assertion of their due process rights, that before final judgment be rendered:

 

1.      the Show Cause Resolution be set for hearing;

2.  respondents be given a fair and full opportunity to refute and/or address the findings and conclusions of fact in the Show Cause Resolution (including especially the finding and conclusion of a lack of malicious intent), and in that connection, that appropriate procedures and schedules for hearing be adopted and defined that will allow them the full and fair opportunity to require the production of and to present testimonial, documentary, and object evidence bearing on the plagiarism and misrepresentation issues in Vinuya v. Executive Secretary (G.R. No. 162230, April 28, 2010) and In the Matter of the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC); and

3.   respondents be given fair and full access to the transcripts, records, drafts, reports and submissions in or relating to, and accorded the opportunity to cross-examine the witnesses who were or could have been called in In The Matter of the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC).[74]

 

Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista

 

 

Although already included in the Common Compliance, Prof. Rosa Maria T. Juan-Bautista (Prof. Juan-Bautista) filed a separate Compliance and Reservation (the Bautista Compliance), wherein she adopted the allegations in the Common Compliance with some additional averments.

Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her to challenge the findings and conclusions in the Show Cause Resolution.  Furthermore, “[i]f the Restoring Integrity Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be punished only after charge and hearing.”[75]

Prof. Juan-Bautista stressed that respondents signed the Statement “in good faith and with the best intentions to protect the Supreme Court by asking one member to resign.”[76]  For her part, Prof. Juan-Bautista intimated that her deep disappointment and sadness for the plight of the Malaya Lolas were what motivated her to sign the Statement.

On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence[77] which in her view highlighted that academic freedom is constitutionally guaranteed to institutions of higher learning such that schools have the freedom to determine for themselves who may teach, what may be taught, how lessons shall be taught and who may be admitted to study and that courts have no authority to interfere in the schools’ exercise of discretion in these matters in the absence of grave abuse of discretion.  She claims the Court has encroached on the academic freedom of the University of the Philippines and other universities on their right to determine how lessons shall be taught.

Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of respondents’ constitutional right to freedom of expression that can only be curtailed when there is grave and imminent danger to public safety, public morale, public health or other legitimate public interest.[78]

Compliance of Prof. Raul T. Vasquez

 

 

          On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate Compliance by registered mail (the Vasquez Compliance).  In said Compliance, Prof. Vasquez narrated the circumstances surrounding his signing of the Statement.  He alleged that the Vinuya decision was a topic of conversation among the UP Law faculty early in the first semester (of academic year 2010-11) because it reportedly contained citations not properly attributed to the sources; that he was shown a copy of the Statement by a clerk of the Office of the Dean on his way to his class; and that, agreeing in principle with the main theme advanced by the Statement, he signed the same in utmost good faith.[79]

          In response to the directive from this Court to explain why he should not be disciplined as a member of the Bar under the Show Cause Resolution, Prof. Vasquez also took the position that a lawyer has the right, like all citizens in a democratic society, to comment on acts of public officers.  He invited the attention of the Court to the following authorities: (a) In re: Vicente Sotto;[80] (b)In re: Atty. Vicente Raul Almacen;[81] and (c) a discussion appearing in American Jurisprudence (AmJur) 2d.[82]  He claims that he “never had any intention to unduly influence, nor entertained any illusion that he could or should influence, [the Court] in its disposition of the Vinuya case”[83] and that “attacking the integrity of [the Court] was the farthest thing on respondent’s mind when he signed the Statement.”[84]  Unlike his colleagues, who wish to impress upon this Court the purported homogeneity of the views on what constitutes plagiarism, Prof. Vasquez stated in his Compliance that:

            13.       Before this Honorable Court rendered its Decision dated 12 October 2010, some espoused the view that willful and deliberate intent to commit plagiarism is an essential element of the same. Others, like respondent, were of the opinion that plagiarism is committed regardless of the intent of the perpetrator, the way it has always been viewed in the academe. This uncertainty made the issue a fair topic for academic discussion in the College. Now, this Honorable Court has ruled that plagiarism presupposes deliberate intent to steal another’s work and to pass it off as one’s own.[85] (Emphases supplied.)

Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he “might have been remiss in correctly assessing the effects of such language [in the Statement] and could have been more careful.”[86]  He ends his discussion with a respectful submission that with his explanation, he has faithfully complied with the Show Cause Resolution and that the Court will rule that he had not in any manner violated his oath as a lawyer and officer of the Court.

Separate Compliance of Dean Leonen regarding the charge of violation of Canon 10 in relation to his submission of a “dummy” of the UP Law Faculty Statement to this Court

          In his Compliance, Dean Leonen claimed that there were three drafts/versions of the UP Law Faculty Statement, which he described as follows:

  • “Restoring Integrity I” which bears the entire roster of the faculty of the UP College of Law in its signing pages, and the actual signatures of the thirty-seven (37) faculty members subject of the Show Cause Resolution. A copy was filed with the Honorable Court by Roque and Butuyan on 31 August 2010 in A.M. No. 10-7-17-SC.

 

  • “Restoring Integrity II” which does not bear any actual physical signature, but which reflects as signatories the names of thirty-seven (37) members of the faculty with the notation “(SGD.)”. A copy of Restoring Integrity II was publicly and physically posted in the UP College of Law on 10 August 2010. Another copy of Restoring Integrity II was also officially received by the Honorable Court from the Dean of the UP College of Law on 11 August 2010, almost three weeks before the filing of Restoring Integrity I.

 

  • “Restoring Integrity III” which is a reprinting of Restoring Integrity II, and which presently serves as the official file copy of the Dean’s Office in the UP College of Law that may be signed by other faculty members who still wish to. It bears the actual signatures of the thirty- seven original signatories to Restoring Integrity I above their printed names and the notation “(SGD.”) and, in addition, the actual signatures of eight (8) other members of the faculty above their handwritten or typewritten names.[87]

 

For purposes of this discussion, only Restoring Integrity I and Restoring Integrity II are relevant since what Dean Leonen has been directed to explain are the discrepancies in the signature pages of these two documents. Restoring Integrity III was never submitted to this Court. 

On how Restoring Integrity I and Restoring Integrity II were prepared and came about, Dean Leonen alleged, thus:

2.2       On 27 July 2010, sensing the emergence of a relatively broad agreement in the faculty on a draft statement, Dean Leonen instructed his staff to print the draft and circulate it among the faculty members so that those who wished to may sign. For this purpose, the staff encoded the law faculty roster to serve as the printed draft’s signing pages. Thus did the first printed draft of the Restoring Integrity Statement, Restoring Integrity I, come into being.  

2.3.      As of 27 July 2010, the date of the Restoring Integrity Statement, Dean Leonen was unaware that a Motion for Reconsideration of the Honorable Court’s Decision in Vinuya vs. Executive Secretary (G.R. No. 162230, 28 April 2010) had already been filed, or that the Honorable Court was in the process of convening its Committee on Ethics and Ethical Standards in A.M. No. 10-7-17-SC.

2.4.      Dean Leonen’s staff then circulated Restoring Integrity I among the members of the faculty. Some faculty members visited the Dean’s Office to sign the document or had it brought to their classrooms in the College of Law, or to their offices or residences. Still other faculty members who, for one reason or another, were unable to sign Restoring Integrity I at that time, nevertheless conveyed to Dean Leonen their assurances that they would sign as soon as they could manage.

2.5.      Sometime in the second week of August, judging that Restoring Integrity I had been circulated long enough, Dean Leonen instructed his staff to reproduce the statement in a style and manner appropriate for posting in the College of Law. Following his own established practice in relation to significant public issuances, he directed them to reformat the signing pages so that only the names of those who signed the first printed draft would appear, together with the corresponding “(SGD.)” note following each name. Restoring Integrity II thus came into being.[88]

According to Dean Leonen, the “practice of eliminating blanks opposite or above the names of non-signatories in the final draft of significant public issuances, is meant not so much for aesthetic considerations as to secure the integrity of such documents.”[89]  He likewise claimed that “[p]osting statements with blanks would be an open invitation to vandals and pranksters.”[90]

          With respect to the inclusion of Justice Mendoza’s name as among the signatories in Restoring Integrity II when in fact he did not sign Restoring Integrity I, Dean Leonen attributed the mistake to a miscommunication involving his administrative officer.  In his Compliance, he narrated that:

            2.7.      Upon being presented with a draft of Restoring Integrity II with the reformatted signing pages, Dean Leonen noticed the inclusion of the name of Justice Mendoza among the “(SGD.)” signatories. As Justice Mendoza was not among those who had physically signed Restoring Integrity I when it was previously circulated, Dean Leonen called the attention of his staff to the inclusion of the Justice’s name among the “(SGD.)” signatories in Restoring Integrity II.

            2.8.      Dean Leonen was told by his administrative officer that she had spoken to Justice Mendoza over the phone on Friday, 06 August 2010. According to her, Justice Mendoza had authorized the dean to sign the Restoring Integrity Statement for him as he agreed fundamentally with its contents. Also according to her, Justice Mendoza was unable at that time to sign the Restoring Integrity Statement himself as he was leaving for the United States the following week. It would later turn out that this account was not entirely accurate.[91] (Underscoring and italics supplied.)

 

 

            Dean Leonen claimed that he “had no reason to doubt his administrative officer, however, and so placed full reliance on her account”[92] as “[t]here were indeed other faculty members who had also authorized the Dean to indicate that they were signatories, even though they were at that time unable to affix their signatures physically to the document.”[93]

          However, after receiving the Show Cause Resolution, Dean Leonen and his staff reviewed the circumstances surrounding their effort to secure Justice Mendoza’s signature.  It would turn out that this was what actually transpired:

          2.22.1.      On Friday, 06 August 2010, when the dean’s staff talked to Justice Mendoza on the phone, he [Justice Mendoza] indeed initially agreed to sign the Restoring Integrity Statement as he fundamentally agreed with its contents. However, Justice Mendoza did not exactly say that he authorized the dean to sign the Restoring Integrity Statement. Rather, he inquired if he could authorize the dean to sign it for him as he was about to leave for the United States. The dean’s staff informed him that they would, at any rate, still try to bring the Restoring Integrity Statement to him.

            2.22.2.     Due to some administrative difficulties, Justice Mendoza was unable to sign the Restoring Integrity Statement before he left for the U.S. the following week.

2.22.3.      The staff was able to bring Restoring Integrity III to Justice Mendoza when he went to the College to teach on 24 September 2010, a day after his arrival from the U.S. This time, Justice Mendoza declined to sign.[94]

          According to the Dean:

2.23.        It was only at this time that Dean Leonen realized the true import of the call he received from Justice Mendoza in late September.  Indeed, Justice Mendoza confirmed that by the time the hard copy of the Restoring Integrity Statement was brought to him shortly after his arrival from the U.S., he declined to sign it because it had already become controversial. At that time, he predicted that the Court would take some form of action against the faculty. By then, and under those circumstances, he wanted to show due deference to the Honorable Court, being a former Associate Justice and not wishing to unduly aggravate the situation by signing the Statement.[95] (Emphases supplied.)

             With respect to the omission of Atty. Armovit’s name in the signature page of Restoring Integrity II when he was one of the signatories of Restoring Integrity I and the erroneous description in Dean Leonen’s August 10, 2010 letter that the version of the Statement submitted to the Court was signed by 38 members of the UP Law Faculty, it was explained in the Compliance that:

Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it was circulated to him. However, his name was inadvertently left out by Dean Leonen’s staff in the reformatting of the signing pages in Restoring Integrity II. The dean assumed that his name was still included in the reformatted signing pages, and so mentioned in his cover note to Chief Justice Corona that 38 members of the law faculty signed (the original 37 plus Justice Mendoza.)[96]

Dean Leonen argues that he should not be deemed to have submitted a dummy of the Statement that was not a true and faithful reproduction of the same.  He emphasized that the main body of the Statement was unchanged in all its three versions and only the signature pages were not the same.  This purportedly is merely “reflective of [the Statement’s] essential nature as a ‘live’ public manifesto meant to continuously draw adherents to its message, its signatory portion is necessarily evolving and dynamic x x x many other printings of [the Statement] may be made in the future, each one reflecting the same text but with more and more signatories.”[97]  Adverting to criminal law by analogy, Dean Leonen claims that “this is not an instance where it has been made to appear in a document that a person has participated in an act when the latter did not in fact so participate”[98] for he “did not misrepresent which members of the faculty of the UP College of Law had agreed with the Restoring Integrity Statement proper and/or had expressed their desire to be signatories thereto.”[99]      

In this regard, Dean Leonen believes that he had not committed any violation of Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor misrepresent to the Court the contents of the Statement or the identities of the UP Law faculty members who agreed with, or expressed their desire to be signatories to, the Statement.  He also asserts that he did not commit any violation of Rule 10.03 as he “coursed [the Statement] through the appropriate channels by transmitting the same to Honorable Chief Justice Corona for the latter’s information and proper disposition with the hope that its points would be duly considered by the Honorable Court en banc.[100]  Citing Rudecon Management Corporation v. Camacho,[101] Dean Leonen posits that the required quantum of proof has not been met in this case and that no dubious character or motivation for the act complained of existed to warrant an administrative sanction for violation of the standard of honesty provided for by the Code of Professional Responsibility.[102]

Dean Leonen ends his Compliance with an enumeration of nearly identical reliefs as the Common Compliance, including the prayers for a hearing and for access to the records, evidence and witnesses allegedly relevant not only in this case but also in A.M. No. 10-7-17-SC, the ethical investigation involving Justice Del Castillo.

Manifestation of Prof. Owen Lynch (Lynch Manifestation)

 

 

For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is not a member of the Philippine bar; but he is a member of the bar of the State of Minnesota.  He alleges that he first taught as a visiting professor at the UP College of Law in 1981 to 1988 and returned in the same capacity in 2010.  He further alleges that “[h]e subscribes to the principle, espoused by this Court and the Supreme Court of the United States, that ‘…[d]ebate on public issues should be uninhibited, robust and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[103]  In signing the Statement, he believes that “the right to speak means the right to speak effectively.”[104]  Citing the dissenting opinions in Manila Public School Teachers Association v. Laguio, Jr.,[105] Prof. Lynch argued that “[f]or speech to be effective, it must be forceful enough to make the intended recipients listen”[106] and “[t]he quality of education would deteriorate in an atmosphere of repression, when the very teachers who are supposed to provide an example of courage and self-assertiveness to their pupils can speak only in timorous whispers.”[107]  Relying on the doctrine in In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections,[108] Prof. Lynch believed that the Statement did not pose any danger, clear or present, of any substantive evil so as to remove it from the protective mantle of the Bill of Rights (i.e., referring to the constitutional guarantee on free speech).[109]  He also stated that he “has read the Compliance of the other respondents to the Show Cause Resolution” and that “he signed the Restoring Integrity Statement for the same reasons they did.”[110]                       

 

ISSUES

 

          Based on the Show Cause Resolution and a perusal of the submissions of respondents, the material issues to be resolved in this case are as follows:

1.)              Does the Show Cause Resolution deny respondents their freedom of expression?

2.)              Does the Show Cause Resolution violate respondents’ academic freedom as law professors?

3.)               Do the submissions of respondents satisfactorily explain why they should not be disciplined as Members of the Bar under Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility?

4.)              Does the separate Compliance of Dean Leonen satisfactorily explain why he should not be disciplined as a Member of the Bar under Canon 10, Rules 10.01, 10.02 and 10.03?

5.)              Are respondents entitled to have the Show Cause Resolution set for hearing and in relation to such hearing, are respondents entitled to require the production or presentation of evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records and transcripts of, and the witnesses and evidence presented, or could have been presented, in the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC)?

 

DISCUSSION

 

The Show Cause Resolution does not deny respondents their freedom of expression.

 

 

          It is respondents’ collective claim that the Court, with the issuance of the Show Cause Resolution, has interfered with respondents’ constitutionally mandated right to free speech and expression.  It appears that the underlying assumption behind respondents’ assertion is the misconception that this Court is denying them the right to criticize the Court’s decisions and actions, and that this Court seeks to “silence” respondent law professors’ dissenting view on what they characterize as a “legitimate public issue.”  

          This is far from the truth. A reading of the Show Cause Resolution will plainly show that it was neither the fact that respondents had criticized a decision of the Court nor that they had charged one of its members of plagiarism that motivated the said Resolution.  It was the manner of the criticism and the contumacious language by which respondents, who are not parties nor counsels in the Vinuya case, have expressed their opinion in favor of the petitioners in the said pending case for the “proper disposition” and consideration of the Court that gave rise to said Resolution.  The Show Cause Resolution painstakingly enumerated the statements that the Court considered excessive and uncalled for under the circumstances surrounding the issuance, publication, and later submission to this Court of the UP Law faculty’s Restoring Integrity Statement.

           To reiterate, it was not the circumstance that respondents expressed a belief that Justice Del Castillo was guilty of plagiarism but rather their expression of that belief as “not only as an established fact, but a truth”[111] when it was “[o]f public knowledge [that there was] an ongoing investigation precisely to determine the truth of such allegations.”[112]  It was also pointed out in the Show Cause Resolution that there was a pending motion for reconsideration of the Vinuya decision.[113]  The Show Cause Resolution made no objections to the portions of the Restoring Integrity Statement that respondents claimed to be “constructive” but only asked respondents to explain those portions of the said Statement that by no stretch of the imagination could be considered as fair or constructive, to wit: 

Beyond this, however, the statement bore certain remarks which raise concern for the Court. The opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:

An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war.

  The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.  

 The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of “polluted sources,” the Court’s alleged indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect.[114] x x x. (Underscoring ours.)

          To be sure, the Show Cause Resolution itself recognized respondents’ freedom of expression when it stated that:

 While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must “insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice.

The Court could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort women’s claims is not controversial enough, the UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneysand not to promote distrust in the administration of justice.[115] x x x. (Citations omitted; emphases and underscoring supplied.)

          Indeed, in a long line of cases, including those cited in respondents’ submissions, this Court has held that the right to criticize the courts and judicial officers must be balanced against the equally primordial concern that the independence of the Judiciary be protected from due influence or interference.  In cases where the critics are not only citizens but members of the Bar, jurisprudence has repeatedly affirmed the authority of this Court to discipline lawyers whose statements regarding the courts and fellow lawyers, whether judicial or extrajudicial, have exceeded the limits of fair comment and common decency.

          As early as the 1935 case of Salcedo v. Hernandez,[116] the Court found Atty. Vicente J. Francisco both guilty of contempt and liable administratively for the following paragraph in his second motion for reconsideration:

We should like frankly and respectfully to make it of record that the resolution of this court, denying our motion for reconsideration, is absolutely erroneous and constitutes an outrage to the rights of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls in the municipality of Tiaong, Tayabas. We wish to exhaust all the means within our power in order that this error may be corrected by the very court which has committed it, because we should not want that some citizen, particularly some voter of the municipality of Tiaong, Tayabas, resort to the press publicly to denounce, as he has a right to do, the judicial outrage of which the herein petitioner has been the victim, and because it is our utmost desire to safeguard the prestige of this honorable court and of each and every member thereof in the eyes of the public. But, at the same time we wish to state sincerely that erroneous decisions like these, which the affected party and his thousands of voters will necessarily consider unjust, increase the proselytes of ‘sakdalism’ and make the public lose confidence in the administration of justice.[117] (Emphases supplied.)

The highlighted phrases were considered by the Court as neither justified nor necessary and further held that:

[I]n order to call the attention of the court in a special way to the essential points relied upon in his argument and to emphasize the force thereof, the many reasons stated in his said motion were sufficient and the phrases in question were superfluous. In order to appeal to reason and justice, it is highly improper and amiss to make trouble and resort to threats, as Attorney Vicente J. Francisco has done, because both means are annoying and good practice can never sanction them by reason of their natural tendency to disturb and hinder the free exercise of a serene and impartial judgment, particularly in judicial matters, in the consideration of questions submitted for resolution.

There is no question that said paragraph of Attorney Vicente J. Francisco’s motion contains a more or less veiled threat to the court because it is insinuated therein, after the author shows the course which the voters of Tiaong should follow in case he fails in his attempt, that they will resort to the press for the purpose of denouncing, what he claims to be a judicial outrage of which his client has been the victim; and because he states in a threatening manner with the intention of predisposing the mind of the reader against the court, thus creating an atmosphere of prejudices against it in order to make it odious in the public eye, that decisions of the nature of that referred to in his motion promote distrust in the administration of justice and increase the proselytes of sakdalism, a movement with seditious and revolutionary tendencies the activities of which, as is of public knowledge, occurred in this country a few days ago. This cannot mean otherwise than contempt of the dignity of the court and disrespect of the authority thereof on the part of Attorney Vicente J. Francisco, because he presumes that the court is so devoid of the sense of justice that, if he did not resort to intimidation, it would maintain its error notwithstanding the fact that it may be proven, with good reasons, that it has acted erroneously.[118] (Emphases supplied.)

          Significantly, Salcedo is the decision from which respondents culled their quote from the minority view of Justice Malcolm. Moreover, Salcedo concerned statements made in a pleading filed by a counsel in a case, unlike the respondents here, who are neither parties nor counsels in the Vinuya case and therefore, do not have any standing at all to interfere in the Vinuya case.  Instead of supporting respondents’ theory, Salcedo is authority for the following principle:      

       

As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any attorney, is in duty bound to uphold its dignity and authority and to defend its integrity, not only because it has conferred upon him the high privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he now is: a priest of justice (In re Thatcher, 80 Ohio St. Rep., 492, 669), but also because in so doing, he neither creates nor promotes distrust in the administration of justice, and prevents anybody from harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark called judicial power to which those who are aggrieved turn for protection and relief.[119] (Emphases supplied.)

Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious statements in his pleading, by accusing the Court of “erroneous ruling.”  Here, the respondents’ Statement goes way beyond merely ascribing error to the Court.

Other cases cited by respondents likewise espouse rulings contrary to their position.  In re: Atty. Vicente Raul Almacen,[120]cited in the Common Compliance and the Vasquez Compliance, was an instance where the Court indefinitely suspended a member of the Bar for filing and releasing to the press a “Petition to Surrender Lawyer’s Certificate of Title” in protest of what he claimed was a great injustice to his client committed by the Supreme Court. In the decision, the petition was described, thus:

He indicts this Court, in his own phrase, as a tribunal “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.” In the same breath that he alludes to the classic symbol of justice, he ridicules the members of this Court, saying “that justice as administered by the present members of the Supreme Court is not only blind, but also deaf and dumb.” He then vows to argue the cause of his client “in the people’s forum,” so that “the 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

“x x x a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned attorney and counsellor-at-law IN TRUST with reservation 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.”[121]

It is true that in Almacen the Court extensively discussed foreign jurisprudence on the principle that a lawyer, just like any citizen, has the right to criticize and comment upon actuations of public officers, including judicial authority.  However, the real doctrine in Almacen is that such criticism of the courts, whether done in court or outside of it, must conform to standards of fairness and propriety.  This case engaged in an even more extensive discussion of the legal authorities sustaining this view.  To quote from that decision:

But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other.Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such a misconduct that subjects a lawyer to disciplinary action.

For, membership in the Bar imposes upon a person obligations and duties which are not mere flux and ferment. His investiture into the legal profession places upon his shoulders no burden more basic, more exacting and more imperative than that of respectful behavior toward the courts. He vows solemnly to conduct himself “with all good fidelity x x x to the courts;” and the Rules of Court constantly remind him “to observe and maintain the respect due to courts of justice and judicial officers.” The first canon of legal ethics enjoins him “to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance.

As Mr. Justice Field puts it:

“x x x the obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the Bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but includes abstaining out of court from all insulting language and offensive conduct toward judges personally for their judicial acts.” (Bradley, v. Fisher, 20 Law. 4d. 647, 652)

The lawyer’s duty to render respectful subordination to the courts is essential to the orderly administration of justice. Hence, in the assertion of their clients’ rights, lawyers — even those gifted with superior intellect — are enjoined to rein up their tempers.

“The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may tax his patience and temper to submit to rulings which he regards as incorrect, but discipline and self-respect are as necessary to the orderly administration of justice as they are to the effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal appointed to decide, and the bar should at all times be the foremost in rendering respectful submission.” (In Re Scouten, 40 Atl. 481)

x x x x

In his relations with the courts, a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another. Thus, statements made by an attorney in private conversations or communications or in the course of a political campaign, if couched in insulting language as to bring into scorn and disrepute the administration of justice, may subject the attorney to disciplinary action.[122] (Emphases and underscoring supplied.)

          In a similar vein, In re: Vicente Sotto,[123] cited in the Vasquez Compliance, observed that:

[T]his Court, in In re Kelly, held the following:

The publication of a criticism of a party or of the court to a pending cause, respecting the same, has always been considered as misbehavior, tending to obstruct the administration of justice, and subjects such persons to contempt proceedings. Parties have a constitutional right to have their causes tried fairly in court, by an impartial tribunal, uninfluenced by publications or public clamor. Every citizen has a profound personal interest in the enforcement of the fundamental right to have justice administered by the courts, under the protection and forms of law, free from outside coercion or interference. x x x.

Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the decision of the court in a pending case made in good faith may be tolerated; because if well founded it may enlighten the court and contribute to the correction of an error if committed; but if it is not well taken and obviously erroneous, it should, in no way, influence the court in reversing or modifying its decision. x x x.

x x x x

To hurl the false charge that this Court has been for the last years committing deliberately “so many blunders and injustices,”that is to say, that it has been deciding in favor of one party knowing that the law and justice is on the part of the adverse party and not on the one in whose favor the decision was rendered, in many cases decided during the last years, would tend necessarily to undermine the confidence of the people in the honesty and integrity of the members of this Court, and consequently to lower or degrade the administration of justice by this Court. The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos might be the resultAs a member of the bar and an officer of the courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity according to the oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation.[124] (Emphases and underscoring supplied.)

That the doctrinal pronouncements in these early cases are still good law can be easily gleaned even from more recent jurisprudence.

In Choa v. Chiongson,[125] the Court administratively disciplined a lawyer, through the imposition of a fine, for making malicious and unfounded criticisms of a judge in the guise of an administrative complaint and held, thus:

As an officer of the court and its indispensable partner in the sacred task of administering justice, graver responsibility is imposed upon a lawyer than any other to uphold the integrity of the courts and to show respect to its officers. This does not mean, however, that a lawyer cannot criticize a judge. As we stated in Tiongco vs. Hon. Aguilar:

It does not, however, follow that just because a lawyer is an officer of the court, he cannot criticize the courts. That is his right as a citizen, and it is even his duty as an officer of the court to avail of such right. Thus, in In Re: Almacen (31 SCRA 562, 579-580 [1970]), this Court explicitly declared:

Hence, 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 to a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen.” (Case of Austin, 28 Am Dec. 657, 665).

x x x x

Nevertheless, such a right is not without limit. For, as this Court warned in Almacen:

But it is a cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such a misconduct, that subjects a lawyer to disciplinary action.

x x x x

Elsewise stated, the right to criticize, which is guaranteed by the freedom of speech and of expression in the Bill of Rights of the Constitution, must be exercised responsibly, for every right carries with it a corresponding obligation. Freedom is not freedom from responsibility, but freedom with responsibility. x x x.

x x x x

Proscribed then are, inter alia, the use of unnecessary language which jeopardizes high esteem in courts, creates or promotes distrust in judicial administration (Rheem, supra), or tends necessarily to undermine the confidence of people in the integrity of the members of this Court and to degrade the administration of justice by this Court (In re: Sotto, 82 Phil. 595 [1949]); or of offensive and abusive language (In re: Rafael Climaco, 55 SCRA 107 [1974]); or abrasive and offensive language (Yangson vs. Salandanan, 68 SCRA 42 [1975]; or of disrespectful, offensive, manifestly baseless, and malicious statements in pleadings or in a letter addressed to the judge (Baja vs. Macandog, 158 SCRA [1988], citing the resolution of 19 January 1988 in Phil. Public Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and Ceniza vs. Sebastian, 130 SCRA 295 [1984]); or of disparaging, intemperate, and uncalled-for remarks (Sangalang vs. Intermediate Appellate Court, 177 SCRA 87 [1989]).

Any criticism against a judge made in the guise of an administrative complaint which is clearly unfounded and impelled by ulterior motive will not excuse the lawyer responsible therefor under his duty of fidelity to his client. x x x.[126] (Emphases and underscoring supplied.)

In Saberon v. Larong,[127] where this Court found respondent lawyer guilty of simple misconduct for using intemperate language in his pleadings and imposed a fine upon him, we had the occasion to state:

The Code of Professional Responsibility mandates:

CANON 8 – A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel.

Rule 8.01 – A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.

CANON 11 – A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.

 

Rule 11.03 – A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.

 

To be sure, the adversarial nature of our legal system has tempted members of the bar to use strong language in pursuit of their duty to advance the interests of their clients.

            However, while a lawyer is entitled to present his case with vigor and courage, such enthusiasm does not justify the use of offensive and abusive language. Language abounds with countless possibilities for one to be emphatic but respectful, convincing but not derogatory, illuminating but not offensive.

 

            On many occasions, the Court has reminded members of the Bar to abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged. In keeping with the dignity of the legal profession, a lawyer’s language even in his pleadings must be dignified.[128]

Verily, the accusatory and vilifying nature of certain portions of the Statement exceeded the limits of fair comment and cannot be deemed as protected free speech.  Even In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections,[129] relied upon by respondents in the Common Compliance, held that:

From the language of the specific constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. x x x.[130] (Emphasis supplied.)

One such societal value that presses for recognition in the case at bar is the threat to judicial independence and the orderly administration of justice that immoderate, reckless and unfair attacks on judicial decisions and institutions pose.  This Court held as much in Zaldivar v. Sandiganbayan and Gonzales,[131] where we indefinitely suspended a lawyer from the practice of law for issuing to the media statements grossly disrespectful towards the Court in relation to a pending case, to wit:

Respondent Gonzales is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all this Court. What respondent seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interestOne of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community.  x x x.[132](Emphases supplied.)

For this reason, the Court cannot uphold the view of some respondents[133] that the Statement presents no grave or imminent danger to a legitimate public interest.

The Show Cause Resolution does not interfere with respondents’ academic freedom.

 

 

          It is not contested that respondents herein are, by law and jurisprudence, guaranteed academic freedom and undisputably, they are free to determine what they will teach their students and how they will teach. We must point out that there is nothing in the Show Cause Resolution that dictates upon respondents the subject matter they can teach and the manner of their instruction.  Moreover, it is not inconsistent with the principle of academic freedom for this Court to subject lawyers who teach law to disciplinary action forcontumacious conduct and speech, coupled with undue intervention in favor of a party in a pending case, without observing proper procedure, even if purportedly done in their capacity as teachers.  

          A novel issue involved in the present controversy, for it has not been passed upon in any previous case before this Court, is the question of whether lawyers who are also law professors can invoke academic freedom as a defense in an administrative proceeding for intemperate statements tending to pressure the Court or influence the outcome of a case or degrade the courts.

Applying by analogy the Court’s past treatment of the “free speech” defense in other bar discipline cases, academic freedom cannot be successfully invoked by respondents in this case.           The implicit ruling in the jurisprudence discussed above is that the constitutional right to freedom of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the public’s faith in the legal profession and the justice system.  To our mind, the reason that freedom of expression may be so delimited in the case of lawyers applies with greater force to the academic freedom of law professors.

It would do well for the Court to remind respondents that, in view of the broad definition in Cayetano v. Monsod,[134]lawyers when they teach law are considered engaged in the practice of law.  Unlike professors in other disciplines and more than lawyers who do not teach law, respondents are bound by their oath to uphold the ethical standards of the legal profession.  Thus, their actions as law professors must be measured against the same canons of professional responsibility applicable to acts of members of the Bar as the fact of their being law professors is inextricably entwined with the fact that they are lawyers.

Even if the Court was willing to accept respondents’ proposition in the Common Compliance that their issuance of the Statement was in keeping with their duty to “participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice” under Canon 4 of the Code of Professional Responsibility, we cannot agree that they have fulfilled that same duty in keeping with the demands of Canons 1, 11 and 13 to give due respect to legal processes and the courts, and to avoid conduct that tends to influence the courts. Members of the Bar cannot be selective regarding which canons to abide by given particular situations. With more reason that law professors are not allowed this indulgence, since they are expected to provide their students exemplars of the Code of Professional Responsibility as a whole and not just their preferred portions thereof.

The Court’s rulings on the submissions regarding the charge of violation of Canons 1, 11 and 13.

 

          Having disposed of respondents’ main arguments of freedom of expression and academic freedom, the Court considers here the other averments in their submissions.   

          With respect to good faith, respondents’ allegations presented two main ideas: (a) the validity of their position regarding the plagiarism charge against Justice Del Castillo, and (b) their pure motive to spur this Court to take the correct action on said issue.

          The Court has already clarified that it is not the expression of respondents’ staunch belief that Justice Del Castillo has committed a misconduct that the majority of this Court has found so unbecoming in the Show Cause Resolution.  No matter how firm a lawyer’s conviction in the righteousness of his cause there is simply no excuse for denigrating the courts and engaging in public behavior that tends to put the courts and the legal profession into disrepute.  This doctrine, which we have repeatedly upheld in such cases as Salcedo, In re Almacen and Saberong, should be applied in this case with more reason, as the respondents, not parties to the Vinuya case, denounced the Court and urged it to change its decision therein, in a public statement using contumacious language, which with temerity they subsequently submitted to the Court for “proper disposition.”

That humiliating the Court into reconsidering the Vinuya Decision in favor of the Malaya Lolas was one of the objectives of the Statement could be seen in the following paragraphs from the same:

And in light of the significance of this decision to the quest for justice not only of Filipino women, but of women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and misinterpreted texts.

 

            x x x x

 

(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein.[135](Emphases and underscoring supplied.)

            Whether or not respondents’ views regarding the plagiarism issue in the Vinuya case had valid basis was wholly immaterial to their liability for contumacious speech and conduct.  These are two separate matters to be properly threshed out in separate proceedings.  The Court considers it highly inappropriate, if not tantamount to dissembling, the discussion devoted in one of the compliances arguing the guilt of Justice Del Castillo.  In the Common Compliance, respondents even go so far as to attach documentary evidence to support the plagiarism charges against Justice Del Castillo in the present controversy.  The ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with the filing of a motion for reconsideration, was still pending at the time of the filing of respondents’ submissions in this administrative case. As respondents themselves admit, they are neither parties nor counsels in the ethics case against Justice Del Castillo. Notwithstanding their professed overriding interest in said ethics case, it is not proper procedure for respondents to bring up their plagiarism arguments here especially when it has no bearing on their own administrative case.

          Still on motive, it is also proposed that the choice of language in the Statement was intended for effective speech; that speech must be “forceful enough to make the intended recipients listen.”[136]  One wonders what sort of effect respondents were hoping for in branding this Court as, among others, callous, dishonest and lacking in concern for the basic values of decency and respect.  The Court fails to see how it can ennoble the profession if we allow respondents to send a signal to their students that the only way to effectively plead their cases and persuade others to their point of view is to be offensive.   

 

            This brings to our mind the letters of Dr. Ellis and Prof. Tams which were deliberately quoted in full in the narration of background facts to illustrate the sharp contrast between the civil tenor of these letters and the antagonistic irreverence of the Statement. In truth, these foreign authors are the ones who would expectedly be affected by any perception of misuse of their works.  Notwithstanding that they are beyond the disciplinary reach of this Court, they still obviously took pains to convey their objections in a deferential and scholarly manner.  It is unfathomable to the Court why respondents could not do the same.  These foreign authors’ letters underscore the universality of the tenet that legal professionals must deal with each other in good faith and due respect.  The mark of the true intellectual is one who can express his opinions logically and soberly without resort to exaggerated rhetoric and unproductive recriminations. 

As for the claim that the respondents’ noble intention is to spur the Court to take “constructive action” on the plagiarism issue, the Court has some doubts as to its veracity.  For if the Statement was primarily meant for this Court’s consideration, why was the same published and reported in the media first before it was submitted to this Court?  It is more plausible that the Statement was prepared for consumption by the general public and designed to capture media attention as part of the effort to generate interest in the most controversial ground in the Supplemental Motion for Reconsideration filed in the Vinuya case by Atty. Roque, who is respondents’ colleague on the UP Law faculty. 

In this regard, the Court finds that there was indeed a lack of observance of fidelity and due respect to the Court, particularly when respondents knew fully well that the matter of plagiarism in the Vinuya decision and the merits of the Vinuya decision itself, at the time of the Statement’s issuance, were still both sub judice or pending final disposition of the Court.  These facts have been widely publicized. On this point, respondents allege that at the time the Statement was first drafted on July 27, 2010, they did not know of the constitution of the Ethics Committee and they had issued the Statement under the belief that this Court intended to take no action on the ethics charge against Justice Del Castillo.  Still, there was a significant lapse of time from the drafting and printing of the Statement on July 27, 2010 and its publication and submission to this Court in early August when the Ethics Committee had already been convened.  If it is true that the respondents’ outrage was fueled by their perception of indifference on the part of the Court then, when it became known that the Court did intend to take action, there was nothing to prevent respondents from recalibrating the Statement to take this supervening event into account in the interest of fairness.

Speaking of the publicity this case has generated, we likewise find no merit in the respondents’ reliance on various news reports and commentaries in the print media and the internet as proof that they are being unfairly “singled out.”  On the contrary, these same annexes to the Common Compliance show that it is not enough for one to criticize the Court to warrant the institution of disciplinary[137] or contempt[138] action.  This Court takes into account the nature of the criticism and weighs the possible repercussions of the same on the Judiciary.  When the criticism comes from persons outside the profession who may not have a full grasp of legal issues or from individuals whose personal or other interests in making the criticism are obvious, the Court may perhaps tolerate or ignore them.  However, when law professors are the ones who appear to have lost sight of the boundaries of fair commentary and worse, would justify the same as an exercise of civil liberties, this Court cannot remain silent for such silence would have a grave implication on legal education in our country.

With respect to the 35 respondents named in the Common Compliance, considering that this appears to be the first time these respondents have been involved in disciplinary proceedings of this sort, the Court is willing to give them the benefit of the doubt that they were for the most part well-intentioned in the issuance of the Statement.  However, it is established in jurisprudence that where the excessive and contumacious language used is plain and undeniable, then good intent can only be mitigating.  As this Court expounded in Salcedo:

In his defense, Attorney Vicente J. Francisco states that it was not his intention to offend the court or to be recreant to the respect thereto but, unfortunately, there are his phrases which need no further comment. Furthermore, it is a well settled rule in all places where the same conditions and practice as those in this jurisdiction obtain, that want of intention is no excuse from liability (13 C. J., 45). Neither is the fact that the phrases employed are justified by the facts a valid defense:

“Where the matter is abusive or insulting, evidence that the language used was justified by the facts is not admissible as a defense. Respect for the judicial office should always be observed and enforced.” (In re Stewart, 118 La., 827; 43 S., 455.)  Said lack or want of intention constitutes at most an extenuation of liability in this case, taking into consideration Attorney Vicente J. Francisco’s state of mind, according to him when he prepared said motion. This court is disposed to make such concession. However, in order to avoid a recurrence thereof and to prevent others, by following the bad example, from taking the same course, this court considers it imperative to treat the case of said attorney with the justice it deserves.[139] (Emphases supplied.)

           Thus, the 35 respondents named in the Common Compliance should, notwithstanding their claim of good faith, be reminded of their lawyerly duty, under Canons 1, 11 and 13, to give due respect to the courts and to refrain from intemperate and offensive language tending to influence the Court on pending matters or to denigrate the courts and the administration of justice.

          With respect to Prof. Vasquez, the Court favorably notes the differences in his Compliance compared to his colleagues. In our view, he was the only one among the respondents who showed true candor and sincere deference to the Court.  He was able to give a straightforward account of how he came to sign the Statement.  He was candid enough to state that his agreement to the Statement was in principle and that the reason plagiarism was a “fair topic of discussion” among the UP Law faculty prior to the promulgation of the October 12, 2010 Decision in A.M. No. 10-7-17-SC was the uncertainty brought about by a division of opinion on whether or not willful or deliberate intent was an element of plagiarism.  He was likewise willing to acknowledge that he may have been remiss in failing to assess the effect of the language of the Statement and could have used more care.  He did all this without having to retract his position on the plagiarism issue, without demands for undeserved reliefs (as will be discussed below) and without baseless insinuations of deprivation of due process or of prejudgment.  This is all that this Court expected from respondents, not for them to sacrifice their principles but only that they recognize that they themselves may have committed some ethical lapse in this affair. We commend Prof. Vaquez for showing that at least one of the respondents can grasp the true import of the Show Cause Resolution involving them. For these reasons, the Court finds Prof. Vasquez’s Compliance satisfactory.

As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar of the State of Minnesota and, therefore, not under the disciplinary authority of this Court, he should be excused from these proceedings.  However, he should be reminded that while he is engaged as a professor in a Philippine law school he should strive to be a model of responsible and professional conduct to his students even without the threat of sanction from this Court.  For even if one is not bound by the Code of Professional Responsibility for members of the Philippine Bar, civility and respect among legal professionals of any nationality should be aspired for under universal standards of decency and fairness.

The Court’s ruling on Dean Leonen’s Compliance regarding the charge of violation of Canon 10.

 

 

          To recall, the Show Cause Resolution directed Dean Leonen to show cause why he should not be disciplinary dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 and for submitting a “dummy” that was not a true and faithful reproduction of the signed Statement.

In his Compliance, Dean Leonen essentially denies that Restoring Integrity II was not a true and faithful reproduction of the actual signed copy, Restoring Integrity I, because looking at the text or the body, there were no differences between the two.  He attempts to downplay the discrepancies in the signature pages of the two versions of the Statement (i.e., Restoring Integrity I andRestoring Integrity II) by claiming that it is but expected in “live” public manifestos with dynamic and evolving pages as more and more signatories add their imprimatur thereto. He likewise stresses that he is not administratively liable because he did not misrepresent the members of the UP Law faculty who “had agreed with the Restoring Integrity Statement proper and/or who had expressed their desire to be signatories thereto.”[140]

 

To begin with, the Court cannot subscribe to Dean Leonen’s implied view that the signatures in the Statement are not as significant as its contents.  Live public manifesto or not, the Statement was formally submitted to this Court at a specific point in time and it should reflect accurately its signatories at that point.  The value of the Statement as a UP Law Faculty Statement lies precisely in the identities of the persons who have signed it, since the Statement’s persuasive authority mainly depends on the reputation and stature of the persons who have endorsed the same. Indeed, it is apparent from respondents’ explanations that their own belief in the “importance” of their positions as UP law professors prompted them to publicly speak out on the matter of the plagiarism issue in the Vinuya case.

Further, in our assessment, the true cause of Dean Leonen’s predicament is the fact that he did not from the beginning submit the signed copy, Restoring Integrity I, to this Court on August 11, 2010 and, instead, submitted Restoring Integrity II with its retyped or “reformatted” signature pages.  It would turn out, according to Dean Leonen’s account, that there were errors in the retyping of the signature pages due to lapses of his unnamed staff. First, an unnamed administrative officer in the dean’s office gave the dean inaccurate information that led him to allow the inclusion of Justice Mendoza as among the signatories of Restoring Integrity II.  Second, an unnamed staff also failed to type the name of Atty. Armovit when encoding the signature pages ofRestoring Integrity II when in fact he had signed Restoring Integrity I.

The Court can understand why for purposes of posting on a bulletin board or a website a signed document may have to be reformatted and signatures may be indicated by the notation (SGD).  This is not unusual.  We are willing to accept that the reformatting of documents meant for posting to eliminate blanks is necessitated by vandalism concerns.

However, what is unusual is the submission to a court, especially this Court, of a signed document for the Court’s consideration that did not contain the actual signatures of its authors.  In most cases, it is the original signed document that is transmitted to the Court or at the very least a photocopy of the actual signed document.  Dean Leonen has not offered any explanation why he deviated from this practice with his submission to the Court of Restoring Integrity II on August 11, 2010. There was nothing to prevent the dean from submitting Restoring Integrity I to this Court even with its blanks and unsigned portions. Dean Leonen cannot claim fears of vandalism with respect to court submissions for court employees are accountable for the care of documents and records that may come into their custody.  Yet, Dean Leonen deliberately chose to submit to this Court the facsimile that did not contain the actual signatures and his silence on the reason therefor is in itself a display of lack of candor.

Still, a careful reading of Dean Leonen’s explanations yield the answer.  In the course of his explanation of his willingness to accept his administrative officer’s claim that Justice Mendoza agreed to be indicated as a signatory, Dean Leonen admits in a footnote that other professors had likewise only authorized him to indicate them as signatories and had not in fact signed the Statement.  Thus, at around the time Restoring Integrity II was printed, posted and submitted to this Court, at least one purported signatory thereto had not actually signed the same.  Contrary to Dean Leonen’s proposition, that is precisely tantamount to making it appear to this Court that a person or persons participated in an act when such person or persons did not. 

We are surprised that someone like Dean Leonen, with his reputation for perfection and stringent standards of intellectual honesty, could proffer the explanation that there was no misrepresentation when he allowed at least one person to be indicated as having actually signed the Statement when all he had was a verbal communication of an intent to sign.  In the case of Justice Mendoza, what he had was only hearsay information that the former intended to sign the Statement.  If Dean Leonen was truly determined to observe candor and truthfulness in his dealings with the Court, we see no reason why he could not have waited until all the professors who indicated their desire to sign the Statement had in fact signed before transmitting the Statement to the Court as a duly signed document.  If it was truly impossible to secure some signatures, such as that of Justice Mendoza who had to leave for abroad, then Dean Leonen should have just resigned himself to the signatures that he was able to secure.

We cannot imagine what urgent concern there was that he could not wait for actual signatures before submission of the Statement to this Court.  As respondents all asserted, they were neither parties to nor counsels in the Vinuya case and the ethics case against Justice Del Castillo.  The Statement was neither a pleading with a deadline nor a required submission to the Court; rather, it was a voluntary submission that Dean Leonen could do at any time.

In sum, the Court likewise finds Dean Leonen’s Compliance unsatisfactory.  However, the Court is willing to ascribe these isolated lapses in judgment of Dean Leonen to his misplaced zeal in pursuit of his objectives.  In due consideration of Dean Leonen’s professed good intentions, the Court deems it sufficient to admonish Dean Leonen for failing to observe full candor and honesty in his dealings with the Court as required under Canon 10.

Respondents’ requests for a hearing, for production/presentation of evidence bearing on the plagiarism and misrepresentation issues in G.R. No. 162230 and A.M. No. 10-7-17-SC, and for access to the records of A.M. No. 10-7-17-SC are unmeritorious.

 

 

In the Common Compliance, respondents named therein asked for alternative reliefs should the Court find their Compliance unsatisfactory, that is, that the Show Cause Resolution be set for hearing and for that purpose, they be allowed to require the production or presentation of witnesses and evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the plagiarism case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records of, and evidence that were presented or may be presented in the ethics case against Justice Del Castillo.  The prayer for a hearing and for access to the records of A.M. No. 10-7-17-SC was substantially echoed in Dean Leonen’s separate Compliance.  In Prof. Juan-Bautista’s Compliance, she similarly expressed the sentiment that “[i]f the Restoring Integrity Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be punished only after charge and hearing.”[141]  It is this group of respondents’ premise that these reliefs are necessary for them to be accorded full due process.

The Court finds this contention unmeritorious.

Firstly, it would appear that the confusion as to the necessity of a hearing in this case springs largely from its characterization as a special civil action for indirect contempt in the Dissenting Opinion of Justice Sereno (to the October 19, 2010 Show Cause Resolution) and her reliance therein on the majority’s purported failure to follow the procedure in Rule 71 of the Rules of Court as her main ground for opposition to the Show Cause Resolution. 

However, once and for all, it should be clarified that this is not an indirect contempt proceeding and Rule 71 (which requires a hearing) has no application to this case.  As explicitly ordered in the Show Cause Resolution this case was docketed as an administrative matter.

The rule that is relevant to this controversy is Rule 139-B, Section 13, on disciplinary proceedings initiated motu proprio by the Supreme Court, to wit:

SEC. 13. Supreme Court Investigators.—In proceedings initiated motu proprio by the Supreme Court or in other proceedings when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in which case the investigation shall proceed in the same manner provided in sections 6 to 11 hereof, save that the review of the report of investigation shall be conducted directly by the Supreme Court. (Emphasis supplied.)

From the foregoing provision, it cannot be denied that a formal investigation, through a referral to the specified officers, is merely discretionary, not mandatory on the Court.  Furthermore, it is only if the Court deems such an investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A will be followed.

As respondents are fully aware, in general, administrative proceedings do not require a trial type hearing.  We have held that:

The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of. What the law prohibits is absoluteabsence of the opportunity to be heard, hence, a party cannot feign denial of due process where he had been afforded the opportunity to present his side. A formal or trial type hearing is not at all times and in all instances essential to due process, the requirements of which are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy.[142] (Emphases supplied.)

In relation to bar discipline cases, we have had the occasion to rule in Pena v. Aparicio[143] that:

Disciplinary proceedings against lawyers are sui generisNeither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor.[144]  (Emphases supplied.)

In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court – Br. 81, Romblon – On the Prohibition from Engaging in the Private Practice of Law,[145] we further observed that:

[I]n several cases, the Court has disciplined lawyers without further inquiry or resort to any formal investigation where the facts on record sufficiently provided the basis for the determination of their administrative liability.

In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any further investigation after considering his actions based on records showing his unethical misconduct; the misconduct not only cast dishonor on the image of both the Bench and the Bar, but was also inimical to public interest and welfare. In this regard, the Court took judicial notice of several cases handled by the errant lawyer and his cohorts that revealed their modus operandi in circumventing the payment of the proper judicial fees for the astronomical sums they claimed in their cases. The Court held that those cases sufficiently provided the basis for the determination of respondents’ administrative liability, without need for further inquiry into the matter under the principle of res ipsa loquitur

Also on the basis of this principle, we ruled in Richards v. Asoy, that no evidentiary hearing is required before the respondent may be disciplined for professional misconduct already established by the facts on record.

 

x x x x

These cases clearly show that the absence of any formal charge against and/or formal investigation of an errant lawyer do not preclude the Court from immediately exercising its disciplining authority, as long as the errant lawyer or judge has been given the opportunity to be heard. As we stated earlier, Atty. Buffe has been afforded the opportunity to be heard on the present matter through her letter-query and Manifestation filed before this Court.[146] (Emphases supplied.)

Under the rules and jurisprudence, respondents clearly had no right to a hearing and their reservation of a right they do not have has no effect on these proceedings.  Neither have they shown in their pleadings any justification for this Court to call for a hearing in this instance.  They have not specifically stated what relevant evidence, documentary or testimonial, they intend to present in their defense that will necessitate a formal hearing.

Instead, it would appear that they intend to present records, evidence, and witnesses bearing on the plagiarism and misrepresentation issues in the Vinuya case and in A.M. No. 10-7-17-SC on the assumption that the findings of this Court which were the bases of the Show Cause Resolution were made in A.M. No. 10-7-17-SC, or were related to the conclusions of the Court in the Decision in that case.  This is the primary reason for their request for access to the records and evidence presented in A.M. No. 10-7-17-SC.

This assumption on the part of respondents is erroneous.  To illustrate, the only incident in A.M. No. 10-7-17-SC that is relevant to the case at bar is the fact that the submission of the actual signed copy of the Statement (or Restoring Integrity I, as Dean Leonen referred to it) happened there.  Apart from that fact, it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics case against Justice Del Castillo, is a separate and independent matter from this case.

To find the bases of the statements of the Court in the Show Cause Resolution that the respondents issued a Statement with language that the Court deems objectionable during the pendency of the Vinuya case and the ethics case against Justice Del Castillo, respondents need to go no further than the four corners of the Statement itself, its various versions, news reports/columns (many of which respondents themselves supplied to this Court in their Common Compliance) and internet sources that are already of public knowledge.

 Considering that what respondents are chiefly required to explain are the language of the Statement and the circumstances surrounding the drafting, printing, signing, dissemination, etc., of its various versions, the Court does not see how any witness or evidence in the ethics case of Justice Del Castillo could possibly shed light on these facts.  To be sure, these facts are within the knowledge of respondents and if there is any evidence on these matters the same would be in their possession.

We find it significant that in Dean Leonen’s Compliance he narrated how as early as September 2010, i.e., before the Decision of this Court in the ethics case of Justice Del Castillo on October 12, 2010 and before the October 19, 2010 Show Cause Resolution, retired Supreme Court Justice Vicente V.  Mendoza, after being shown a copy of the Statement upon his return from abroad, predicted that the Court would take some form of action on the Statement.  By simply reading a hard copy of the Statement, a reasonable person, even one who “fundamentally agreed” with the Statement’s principles, could foresee the possibility of court action on the same on an implicit recognition that the Statement, as worded, is not a matter this Court should simply let pass.  This belies respondents’ claim that it is necessary for them to refer to any record or evidence in A.M. No. 10-7-17-SC in order to divine the bases for the Show Cause Resolution.

If respondents have chosen not to include certain pieces of evidence in their respective compliances or chosen not to make a full defense at this time, because they were counting on being granted a hearing, that is respondents’ own look-out.  Indeed, law professors of their stature are supposed to be aware of the above jurisprudential doctrines regarding the non-necessity of a hearing in disciplinary cases.  They should bear the consequence of the risk they have taken.

Thus, respondents’ requests for a hearing and for access to the records of, and evidence presented in, A.M. No. 10-7-17-SC should be denied for lack of merit.

A final word 

          In a democracy, members of the legal community are hardly expected to have monolithic views on any subject, be it a legal, political or social issue.  Even as lawyers passionately and vigorously propound their points of view they are bound by certain rules of conduct for the legal profession.  This Court is certainly not claiming that it should be shielded from criticism. All the Court demands is the same respect and courtesy that one lawyer owes to another under established ethical standards.  All lawyers, whether they are judges, court employees, professors or private practitioners, are officers of the Court and have voluntarily taken an oath, as an indispensable qualification for admission to the Bar, to conduct themselves with good fidelity towards the courts.  There is no exemption from this sworn duty for law professors, regardless of their status in the academic community or the law school to which they belong.

 

WHEREFORE, this administrative matter is decided as follows:

(1)             With respect to Prof. Vasquez, after favorably noting his submission, the Court finds his Compliance to beSATISFACTORY.

(2)             The Common Compliance of 35 respondents, namely, Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D. Villanueva and Dina D. Lucenario, is foundUNSATISFACTORY.  These 35 respondent law professors are REMINDED of their lawyerly duty, under Canons 1, 11 and 13 of the Code of Professional Responsibility, to give due respect to the Court and to refrain from intemperate and offensive language tending to influence the Court on pending matters or to denigrate the Court and the administration of justice and warned that the same or similar act in the future shall be dealt with more severely.

(3)             The separate Compliance of Dean Marvic M.V.F. Leonen regarding the charge of violation of Canon 10 is foundUNSATISFACTORY.  He is further ADMONISHED to be more mindful of his duty, as a member of the Bar, an officer of the Court, and a Dean and professor of law, to observe full candor and honesty in his dealings with the Court and warned that the same or similar act in the future shall be dealt with more severely.

(4)             Prof. Lynch, who is not a member of the Philippine bar, is EXCUSED from these proceedings.  However, he is reminded that while he is engaged as a professor in a Philippine law school he should strive to be a model of responsible and professional conduct to his students even without the threat of sanction from this Court.

(5)             Finally, respondents’ requests for a hearing and for access to the records of A.M. No. 10-7-17-SC are DENIED for lack of merit.

SO ORDERED.

 

   TERESITA J. LEONARDO-DE CASTRO

Associate Justice

 

WE CONCUR:

RENATO C. CORONA

Chief Justice

 

See Dissenting Opinion
ANTONIO T. CARPIO
Associate Justice

Please see Dissenting Opinion
CONCHITA CARPIO MORALES

Associate Justice

 

 

 

 

 

 

 

 

 

 

 

On leave

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURAAssociate Justice

 

 

 

 

 

 

 

 

 

 

I certify the Mr. Justice Brion left his concurring vote
On leave

 

ARTURO D. BRIONAssociate Justice DIOSDADO M. PERALTAAssociate Justice

 

 

 

 

 

 

 

 

 

 

 

 

LUCAS P. BERSAMIN

Associate Justice

(No Part)
MARIANO C. DEL CASTILLO

Associate Justice

   

 

 

 

 

 

 

 

 

 

 
ROBERTO A. ABAD 

Associate Justice

Pls see Separate Opinion
MARTIN S. VILLARAMA, JR.
Associate Justice
   
   
   
   
   
   
                   JOSE PORTUGAL PEREZAssociate Justice JOSE CATRAL MENDOZA

Associate Justice

 

I dissent and reserve the right to issue a Separate Opinion
MARIA LOURDES P. A. SERENO

Associate Justice


* On leave.

** No part.

[1] Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, Susan D. Villanueva and Dina D. Lucenario; rollo, pp. 24-25.

[2] Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court; rollo, pp. 4-9. 

[3] Counsel of record for the Malaya Lolas (petitioners in G.R. No. 162230) is the Roque & Butuyan Law Offices.

[4] Malaya Lolas’ Motion for Reconsideration dated May 31, 2010, p. 1.

[5]  Id. at 8.

[6] The contents of the Supplemental Motion for Reconsideration were posted on Atty. Roque’s blog on July 18, 2010, the day before its filing. Seehttp://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/ (last accessed on January 20, 2011).

[7]Malaya Lolas’ Supplemental Motion for Reconsideration dated July 19, 2010, p. 8.

[8] Id. at 36. (Emphasis supplied.)

[9] Which appeared in the Yale Law Journal in 2009.

[10] Cambridge University Press, 2005.

[11] Published in the Case Western Reserve Journal of International Law in 2006.

[12] See Annex 4 of the 35 respondents’ Common Compliance filed on November 19, 2010. The article’s time of posting was indicated as 7:00 a.m.; rollo, p. 304.

[13] The article was posted on July 19, 2010 at 12:02 a.m.  See http://www.gmanews.tv/story/196407/sc-justice-plagiarized-parts-of-ruling-on-comfort-women  (Last accessed on January 20, 2011).

[14] See http://www.manilastandardtoday.com/insideOpinion.htm?f=2010/july/22/harryroque.isx&d=2010/july/22 (Last accessed January 24, 2011).

[15] The link indicated in Julian Ku’s blog entry was not a newspaper report but the Newsbreak article posted in GMA News TV’s website.

[16] Id.

[17] Prof. Criddle’s response was posted on July 19, 2010 at 2:44 EST. See link below:

http://opiniojuris.org/2010/07/19/international-law-plagiarism-charge-bedevils-philippines-supreme-court-justice/ (Last accessed on January 20, 2011).

[18] This letter was subsequently published in the Philippine Star as shown by Annex 7 of the 35 respondents’ Common Compliance filed on November 19, 2010; rollo, pp. 309-310.  

[19] Atty. Roque and Atty. Bagares, through the Center for International Law, have collaborated in the past with the SEAMLDI. The Center for International Law, which has Atty. Roque as Chairman and Atty. Bagares as Executive Director, hosted the 2nd  South East Asia Media Legal Defense Conference held in October 2009 in Cebu City. Seehttp://www.roquebutuyan.com/centerlaw/index.html and http://jmsc.asia/seasiamediadefense2009/program/ (Both last accessed on January 20, 2011).

[20] http://www.scribd.com/doc/39856111/Letter-to-Republic-of-the-Philippines-Supreme-Court-Ellis  (Last accessed on January 20, 2011).

[21] Per Curiam Decision, In the Matter of Charges of Plagiarism, etc., against Associate Justice Mariano C. del Castillo, A.M. No. 10-7-17-SC, October 12, 2010.  

[22] http://www.newsbreak.ph/2010/08/09/restoring-integrity/ (Last accessed on January 24, 2011).

[23] http://harryroque.com/2010/08/09/restoring-integritya-statement-by-the-faculty-of/ (Last accessed on January 20, 2011).

[24] http://www.gmanews.tv/story/198182/resignation-of-sc-justice-in-plagiarism-issue-sought (Last accessed on January 20, 2011).

[25] http://www.sunstar.com.ph/manila/faculties-hit-plagiarized-ruling  (Last accessed on January 20, 2011).

[26] See paragraph 2.9, Dean Leonen Compliance dated November 19, 2010; rollo, p. 327.

[27]The date of posting of the Statement is not indicated on the UP Law website. See http://law.upd.edu.ph/index.php?option=com_content&view=article&id=166:restoring-integrity-a-statement-by-the-faculty-of-the-up-college-of-law&catid=52:faculty-news&Itemid=369  (Last accessed on January 20, 2011).

[28] Although the Dean’s letter indicated that 38 faculty members signed the statement, an examination of the attachment showed that the number of purported signatories was only 37.

[29] Rollo, pp. 4-9.

[30] This was received by the Court on August 20, 2010. It was also reported on Newsbreak that same day. See (http://www.newsbreak.ph/2010/08/20/third-author-plagiarized-by-sc-justice-complains/).

[31] See Annex 2 of the 35 respondents’ Compliance dated November 19, 2010.  A full-color PDF replica of Prof. Tams’ letter was also linked on Atty. Roque’s blog entry dated August 22, 2010. See blog entry here – http://harryroque.com/2010/08/22/third-author-plagiarized-by-sc-justice- complains-from-newsbreak/ (last accessed on January 20, 2011)  and the letter here –http://harryroque.files.wordpress.com/2010/08/tams-letter-to-supreme-court.pdf  (last accessed on January 21, 2011).

[32] Per Curiam Decision in A.M. No. 10-7-17-SC, October 12, 2010.

[33] Id.

[34] Resolution dated October 19, 2010; rollo, pp. 23-29.

[35] Id. at 26-27.

[36] The Show Cause Resolution inadvertently referred to Canon 10 but should refer to Canon 1.

[37] Show Cause Resolution; rollo, pp. 27-28.

[38] Id. at 28.

[39] Common Compliance; rollo, p. 201.

[40] Id.

[41] Id. at 201-202. (Emphases supplied.)

[42] Code of Professional Responsibility, Canon 1.

[43] Id., Canon 11.

[44] Id., Canon 13.

[45] Common Compliance; rollo, p. 203.

[46] Id. at 204.

[47] Id. at 205.

[48] Id. at 208.

[49] Id  at 208-209.

[50] Respondents were referring to the article by Donna Pazzibugan entitled “High Court Not Probing ‘Plagiarism,’” which according to footnote 28 of the Common Compliance may be accessed at <http://newsinfo.inquirer.net/inquirerheadlines/nation/view/2010072182283/High-court-not-probing-plagiarism&gt; as of November 12, 2010.

[51] Common Compliance; rollo, p. 209.

[52] 372 Phil. 287 (1999).

[53]  According to his letter, Atty. Payoyo is a former UP Law Professor, former chief editor of the Philippine Law Journal and a recipient of the Court’s centennial award in international law.

[54] G.R. No. 190582, April 8, 2010.

[55] Common Compliance; rollo, p. 211.

[56] Annex 4; id. at 304-306.

[57] Annex 5; id. at 307.  

[58] Annex 6; id. at 308.

[59] Annex 7; id. at 309-310.

[60] Annex 8; id. at 311.

[61] Annex 9; id. at 312.

[62] Annexes 10 and 11; id. at 313-314.

[63] Annexes 12, 13 and 14; id. at 315-317.

[64] Annex 15; id. at 318-319.

[65] Annex 16; id. at 320.

[66] Id. at 215.

[67] 37 Phil. 731 (1918).

[68] G.R. No. L-27654, February 18, 1970, 31 SCRA 562.

[69] 137 Phil. 471 (1969).

[70] 160-A Phil. 929 (1975).

[71] Common Compliance; rollo, p. 217.

[72] 61 Phil 724 (1935).

[73] Id. at 733-734, cited in the Common Compliance; rollo, p. 219.

[74] Common Compliance; rollo, pp. 219-220.

[75] Bautista Compliance; id. at 179. (Emphasis supplied.)

[76] Id. at 180. (Emphasis supplied.)

[77] Mercado v. AMA Computer College–Parañaque City, Inc., G.R. No. 183572, April 13, 2010; Morales v. Board of Regents of the University of the Philippines, G.R. No. 161172,December 13, 2004, 446 SCRA 227; University of the Philippines Board of Regents v. Court of Appeals, supra note 49; Arokiaswamy William Margaret Celine v. University of the Philippines Board of Regents, G.R. No. 152309, Resolution, September 18, 2002.

[78] Bautista Compliance; rollo, p. 185; citing Integrated Bar of the Philippines v. Atienza, G.R. No. 175241, February 24, 2010.

[79] See Vasquez Compliance; rollo, p. 428.

[80] 82 Phil. 595 (1949).

[81] Supra note 68.

[82] AmJur 2d §52.

[83] Vasquez Compliance; rollo, p. 430.

[84] Id. at 431.

[85] Id. at 430.

[86] Id.

[87] Dean Leonen Compliance; rollo, pp. 324-325.

[88] Id. at 325-326.

[89] Id. at 326.

[90] Id., in Footnote 2.

[91] Id. at 326-327.

[92] Id. at 327.

[93] Id., in Footnote 3.

[94] Id. at 331-332.

[95] Id. at 332.

[96] Id. at 328, in footnote 4.

[97] Id. at 334, in footnote 7.

[98] Id. at 335.

[99] Id. at 335-336.

[100] Id. at 338.

[101] 480 Phil. 652 (2004).

[102] Dean Leonen Compliance; rollo, p. 338.

[103] Lynch Manifestation; rollo, p. 188; citing New York Times, Co. v. Sullivan, 376 US 254 (1964) quoted with approval by the Court in Lopez v. Court of Appeals, 145 Phil. 219 (1970).

[104] Id.

[105] G.R. No. 95445, August 6, 1991, 200 SCRA 323.

[106] Quoted by Prof. Lynch from the Dissenting Opinion of Justice Gutierrez, Jr. in the Manila Public School Teachers Association case (id. at 338).

[107] Quoted by Prof. Lynch from the Dissenting Opinion of Justice Cruz in the Manila Public School Teachers Association case (id. at 343).

[108] Supra note 69.

[109] Lynch Manifestation; rollo, p. 189.

[110] Id.

[111] Show Cause Resolution; rollo, p. 25.

[112] Id. at 26.

[113] To date, said motion for reconsideration of the Vinuya decision is still pending resolution by the Court.

[114] Show Cause Resolution; rollo, pp. 25-26.

[115] Id. at 26-27.

[116] Supra note 72.

[117] Id. at 726.

[118] Id. at 727-728.

[119] Id. at 728.

[120] Supra note 68.

 

[121] Id. at 564-565.

[122] Id. at 580-582.

[123] Supra note 80.

[124] Id. at 599-602.

[125] 329 Phil. 270 (1996).

[126] Id. at 276-279.

[127] A.C. No. 6567, April 16, 2008, 551 SCRA 359.

[128] Id. at 367-368.

[129] Supra note 69.

[130] Id. at 494.       

[131] 248 Phil. 542 (1988).

[132] Id. at 579.

[133] Prof. Juan-Bautista and Prof. Lynch. 

[134] G.R. No. 100113, September 3, 1991, 201 SCRA 210, 214, where the Court ruled that:

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. “To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill.” (Citing 111 ALR 23.)

[135] Rollo, pp. 6-7.

[136] Lynch Manifestation; rollo, p. 188.

[137] In the case of members of the Bar.

[138] In the case of members of the Bar and/or non-lawyers.

[139] Salcedo v. Hernandez, supra note 72 at 729-730.

[140] Dean Leonen Compliance; rollo, p. 336.

[141] Bautista Complaince; rollo, p. 179.

[142] Placido v. National Labor Relations Commission, G.R. No. 180888, September 18, 2009, 600 SCRA 697, 704-705.

[143] A.C. No. 7298, June 25, 2007, 525 SCRA 444, citing In re: Atty. Vicente Raul Almacen, supra note 68.

[144] Id. at 453.

[145] A.M. No. 08-6-352-RTC, August 19, 2009, 596 SCRA 378.

[146] Id. at 396-398.

Follow

Get every new post delivered to your Inbox.

Join 210 other followers