G.R. No. 79690-707 February 1, 1989ENRIQUE A. ZALDIVAR,petitioner,vs.THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M. GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman under the 1987 Constitution,respondents.G.R. No. 80578 February 1, 1989ENRIQUE A. ZALDIVAR,petitioner,vs.HON. RAUL M. GONZALES, claiming to be and acting as Tanodbayan-Ombudsman under the 1987 Constitution,respondent.R E S O L U T I O NPER CURIAM:We have examined carefully the lengthy and vigorously written Motion for Reconsideration dated October 18, 1988 filed by counsel for respondent Raul M. Gonzalez, relating to theper curiamResolution of the Court dated October 7, 1988. We have reviewed once more the Court's extendedper curiamResolution, in the light of the argument adduced in the Motion for Reconsideration, but must conclude that we find no sufficient basis for modifying the conclusions and rulings embodied in that Resolution. The Motion for Reconsideration sets forth copious quotations and references to foreign texts which, however, whatever else they may depict, do not reflect the law in this jurisdiction.Nonetheless, it might be useful to develop further, in some measure, some of the conclusions reached in theper curiamResolution, addressing in the process some of the "Ten (10) Legal Points for Reconsideration," made in the Motion for Reconsideration.1. In respondent's point A, it is claimed that it was error for this Court "to charge respondent [with] indirect contempt and convict him of direct contempt."In theper curiamResolution (page 50), the Court concluded that "respondent Gonzalez is guilty both of contempt of courtinfacie curiaeand of gross misconduct as an officer of the court and member of the bar." The Court did not use the phrase"in facie curiae"as a technical equivalent of "direct contempt," though we are aware that courts in the United States have sometimes used that phrase in speaking of "direct contempts' as "contempts in the face of the courts." Rather, the court sought to convey that it regarded the contumacious acts or statements (which were made both in a pleading filed before the Court and in statements given to the media) and the misconduct of respondent Gonzalez as serious acts flaunted in the face of the Court and constituting afrontal assaultupon the integrity of the Court and, through the Court, the entire judicial system. What the Court would stress is that it required respondent, in its Resolution dated 2 May 1988, to explain "why he should not be punished for contempt of court and/or subjected to administrative sanctions" and in respect of which, respondent was heard and given the most ample opportunity to present all defenses, arguments and evidence that he wanted to present for the consideration of this Court. The Court did not summarily impose punishment upon the respondent which it could have done under Section 1 of Rule 71 of the Revised Rules of Court had it chosen to consider respondent's acts as constituting "direct contempt."2. In his point C, respondent's counsel argues that it was "error for this Court to charge respondent under Rule 139 (b) and not 139 of the Revised Rules of Court."In itsper curiamResolution, the Court referred to Rule 139 (b) of the Revised Rules of Court pointing out that:[R]eference of complaints against attorneys either to the Integrated Bar of the Philippines or to the Solicitor General is not mandatory upon the Supreme Court such reference to the Integrated Bar of the Philippines or to the Solicitor General is certainly not an exclusive procedure under the terms of Rule 139 (b) of the Revised Rules of Court, especially where the charge consists of acts done before the Supreme Court.The above statement was made by the Court in response to respondent's motion for referral of this case either to the Solicitor General or to the Integrated Bar of the Philippines under Rule 139 (b). Otherwise, there would have been no need to refer to Rule 139 (b). It is thus only necessary to point out that under the old rule, Rule 139, referral to the Solicitor General was similarly not an exclusive procedure and was not the only course of action open to the Supreme Court. It is well to recall that under Section 1 (entitled "Motion or complaint") of Rule 139, "Proceedings for the removal or suspension of attorneys may be taken by the Supreme Court, (1) on its own motion, or (2) upon the complaint under oath of another in writing" (Parentheses supplied). The procedure described in Sections 2et seq.of Rule 139 is the procedure provided for suspension or disbarment proceedings initiated upon sworn complaint of another person, rather than a procedure required for proceedings initiated by the Supreme Court on its own motion. It is inconceivable that the Supreme Court would initiatemotu proprioproceedings for which it did not find probable cause to proceed against an attorney. Thus, there is no need to refer a case to the Solicitor General, which referral is made "for investigation to determine if there is sufficient ground to proceed with the prosecution of the respondent" (Section 3, Rule 139), where the Court itself has initiated against the respondent. The Court may, of course, refer a case to the Solicitor General if it feels that, in a particular case, further factual investigation is needed. In the present case, as pointed out in theper curiamResolution of the Court (page 18), there was "no need for further investigation of facts in the present case for it [was] not substantially disputed by respondent Gonzalez that he uttered or wrote certain statements attributed to him" and that "in any case, respondent has had the amplest opportunity to present his defense: his defense is not that he did not make the statements ascribed to him but that those statements give rise to no liability on his part, having been made in the exercise of his freedom of speech. The issues which thus need to be resolved here are issues of law and of basic policy and the Court, not any other agency, is compelled to resolve such issues."In this connection, we note that the quotation in page 7 of the Motion for Reconsideration is from adissentingopinion of Mr. Justice Black inGreen v. United State.1It may be pointed out that the majority inGreen v. United States,through Mr. Justice Harlan, held, among other things, that: Federal courts do not lack power to impose sentences in excess of one year for criminal contempt; that criminal contempts are not subject to jury trial as a matter of constitutional right; nor does the (US) Constitution require that contempt subject to prison terms of more than one year be based on grand jury indictments.In his concurring opinion in the same case, Mr. Justice Frankfurter said:Whatever the conflicting views of scholars in construing more or less dubious manuscripts of the Fourteenth Century,what is indisputable is that from the foundation of the United States the constitutionality of the power to punish for contempt without the intervention of a jury has not been doubted.The First Judiciary Act conferred such a power on the federal courts in the very act of their establishment, 1 State 73, 83, and of the Judiciary Committee of eight that reported the bill to the Senate, five member including the chairman, Senator, later to be Chief Justice, Ellsworth, had been delegates to the Constitutional Convention (Oliver Ellsworth, Chairman, William Paterson, Caleb Strong, Ricard Basett, William Few. 1 Annals of Cong 17). In the First Congress itself no less than nineteen member including Madison who contemporaneously introduced the Bill of Rights, had been delegates to the Convention. And when an abuse under this power manifested itself, and led Congress to define more explicitly the summary power vested in the courts, it did not remotely deny the existence of the power but merely defined the conditions for its exercise more clearly, in an Act "declaratory of the law concerning contempts of court." Act of Mar. 2, 1831, 4 Stat 487.x x x x x x x x xNor has the constitutionality of the power been doubted by this Court throughout its existence . In at least two score cases in this Court, not to mention the vast mass of decisions in the lower federal courts, the power to punish summarily has been accepted without question. ...2To say that a judge who punishes a contemnor judges his own cause, is simplistic at best. The judge who finds himself compelled to exercise the power to punish for contempt does so not really to avenge a wrong inflicted upon his own person; rather he upholds and vindicates the authority, dignity and integrity of the judicial institution and its claim to respectful behaviour on the part of all persons who appears before it, and most especially from those who are officers of the court.3. In his point D, respondent counsel urges that it is error "for this Court to apply the "visible tendency" rule rather than the "clear and present danger" rule in disciplinary and contempt charges."The Court did not purport to announce a new doctrine of "visible tendency," it was, more modestly, simply paraphrasing Section 3 (d) of Rule 71 of the Revised Rules of Court which penalizes a variety of contumacious conduct including: "any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice."The "clear and present danger" doctrine invoked by respondent's counsel is not a magic incantation which dissolves all problems and dispenses with analysis and judgment in the testing of the legitimacy of claims to free speech, and which compels a court to exonerate a defendant the moment the doctrine is invoked, absent proof of impending apocalypse. The clear and present danger" doctrine has been an accepted method for marking out the appropriate limits of freedom of speech and of assembly in certain contexts. It is not, however, the only test which has been recognized and applied by courts. InLogunzad v. Vda. de Gonzales,3this Court, speaking through Mme. Justice Melencio-Herrera said:...The right of freedom of expression indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963].It is not, however, without limitations.As held in Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]:"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 all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition."The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and of the press,which includes such vehicles of the mass media as radio, television and the movies, is the"balancing-of-interests test"(Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed., p. 79).The principle "requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation(Separate Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections,supra, p. 899). (Emphasis Supplied)4Under either the "clear and present danger" test or the "balancing-of-interest test," we believe that the statements here made by respondent Gonzalez are of such a nature and were made in such a manner and under such circumstances, as to transcend the permissible limits of free speech. This conclusion was implicit in theper curiamResolution of October 7, 1988. It is important to point out that the "substantive evil" which the Supreme Court has a right and a duty to prevent does not, in the instant case, relate to threats of physical disorder or overt violence or similar disruptions of public order.5What is here at stake is the authority of the Supreme Court to confront and prevent a "substantive evil" consisting not only of the obstruction of a free and fair hearing of a particular case but also the avoidance of the broader evil of the degradation of the judicial system of a country and the destruction of the standards of professional conduct required from members of the bar and officers of the courts. The "substantive evil" here involved, in other words, is not as palpable as a threat of public disorder or rioting but is certainly no less deleterious and more far reaching in its implications for society.4. In his point H, respondent's counsel argues that it is error "for this Court to hold that intent is irrelevant in charges of misconduct." What the Court actually said on this point was:Respondent Gonzalez disclaims an intent to attack and denigrate the Court. The subjectivities of the respondent are irrelevant so far as characterization of his conduct or misconduct is concerned. He will not, however, be allowed to disclaim the natural and plain import of his words and acts. It is, upon the other hand, not irrelevant to point out that the respondent offered no apology in his two (2) explanations and exhibited no repentance (Resolution, p. 7; footnotes omitted).The actual subjectivities of the respondent are irrelevant because such subjectivities (understood as pyschological phenomena) cannot be ascertained and reached by the processes of this Court. Human intent can only be shown derivatively and implied from an examination of acts and statements. Thus, what the Court was saying was that respondent's disclaimer of an intent to attack and denigrate the Court, cannot prevail over the plain import of what he did say and do. Respondent cannot negate the clear import of his acts and statements by simply pleading a secret intent or state of mind incompatible with those acts or statements. It is scarcely open to dispute that, e.g., one accused of homicide cannot successfully deny his criminal intent by simply asserting that while he may have inserted a knife between the victim's ribs, he actually acted from high motives and kind feelings for the latter.5 In his point 1, respondent's counsel argues that it is error "for this Court to punish respondent for contempt of court for out of court publications."Respondent's counsel asks this Court to follow what he presents as alleged modern trends in the United Kingdom and in the United States concerning the law of contempt. We are, however, unable to regard the texts that he cites as binding or persuasive in our jurisdiction. The Court went to some length to document the state of our case law on this matter in itsper curiamResolution. There is nothing in the circumstances of this case that would suggest to this Court that that case law, which has been followed for at least half a century or so, ought to be reversed.6. In his point J, respondent's counsel pleads that the imposition of indefinite suspension from the practice of law constitutes "cruel, degrading or inhuman punishment". The Court finds it difficult to consider this a substantial constitutional argument. The indefiniteness of the respondent's suspension, far from being "cruel" or "degrading" or "inhuman," has the effect of placing, as it were, the key to the restoration of his rights and privileges as a lawyer in his own hands. That sanction has the effect of giving respondent the chance to purge himself in his own good time of his contempt and misconduct by acknowledging such misconduct, exhibiting appropriate repentance and demonstrating his willingness and capacity to live up to the exacting standards of conduct rightly demanded from every member of the bar and officer of the courts.ACCORDINGLY, the Court Resolved to DENY the Motion for Reconsideration for lack of merit. The denial is FINAL.The Court also NOTED the Ex-Parte Manifestation and Motion, dated October 25, 1988 and the Supplemental Manifestation, dated October 27, 1988, filed by respondentDIGEST166 SCRA 316 Legal Ethics Contemptuous Language Duty of a LawyerZaldivar was the governor of Antique. He was charged before the Sandiganbayan for violations of the Anti-Graft and Corrupt Practices Act. Gonzales was the then Tanodbayan who was investigating the case. Zaldivar then filed with the Supreme Court a petition for Certiorari, Prohibition and Mandamus assailing the authority of the Tanodbayan to investigate graft cases under the 1987 Constitution. The Supreme Court, acting on the petition issued a Cease and Desist Order against Gonzalez directing him to temporarily restrain from investigating and filing informations against Zaldivar.Gonzales however proceeded with the investigation and he filed criminal informations against Zaldivar. Gonzalez even had a newspaper interview where he proudly claims that he scored one on the Supreme Court; that the Supreme Courts issuance of the TRO is a manifestation theta the rich and influential persons get favorable actions from the Supreme Court, [while] it is difficult for an ordinary litigant to get his petition to be given due course.Zaldivar then filed a Motion for Contempt against Gonzalez. The Supreme Court then ordered Gonzalez to explain his side. Gonzalez stated that the statements in the newspapers were true; that he was only exercising his freedom of speech; that he is entitled to criticize the rulings of the Court, to point out where he feels the Court may have lapsed into error.He also said, even attaching notes, that not less than six justices of the Supreme Court have approached him to ask him to go slow on Zaldivar and to not embarrass the Supreme Court.ISSUE:Whether or not Gonzalez is guilty of contempt.HELD:Yes. The statements made by respondent Gonzalez clearly constitute contempt and call for the exercise of the disciplinary authority of the Supreme Court. His statements necessarily imply that the justices of the Supreme Court betrayed their oath of office. Such statements constitute the grossest kind of disrespect for the Supreme Court. Such statements very clearly debase and degrade the Supreme Court and, through the Court, the entire system of administration of justice in the country.Gonzalez is entitled to the constitutional guarantee of free speech. What Gonzalez 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 interests. One 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.Gonzalez, apart from being a lawyer and an officer of the court, is also a Special Prosecutor who owes duties of fidelity and respect to the Republic and to the Supreme Court as the embodiment and the repository of the judicial power in the government of the Republic. The responsibility of Gonzalez to uphold the dignity and authority of the Supreme Court and not to promote distrust in the administration of justiceis heavier than that of a private practicing lawyer.Gonzalez is also entitled to criticize the rulings of the court but his criticisms must be bona fide. In the case at bar, his statements, particularly the one where he alleged that members of the Supreme Court approached him, are of no relation to the Zaldivar case.The Supreme Court suspended Gonzalez indefinitely from the practice of law.

ROSAURO PARAGAS,Petitioner, v. FERNANDO A. CRUZ, Judge of the Court of First Instance of Caloocan City, THE CITY FISCAL OF CALOOCAN CITY and ELPO (EL PORVENIR RUBBER PRODUCTS, INC.,) respondents.

SYLLABUS

1. CONTEMPT; DISRESPECTFUL LANGUAGE IN PLEADINGS CONSTITUTE DIRECT CONTEMPT. Threats and disrespectful language contained in pleadings filed in court are constitutive of direct contempt.

2. ID.; ID.; REFERENCE IN PLEADINGS TO RECENT KILLINGS AS THREAT TO COURT; CASE AT BAR. In the case at bar, the reference in the pleading filed by an attorney to recent killings of employees in the court premises is considered but a covert threat upon the members of the Court and is more deplorable because it was made by a member of the bar.

R E S O L U T I O N

REYES, J.B.L.,J.:

In asking for reconsideration of this Courts dismissal of his petition forcertiorariin the above-entitled case, Atty. Jeremias T. Sebastian, acting as counsel de parte for petitioner Rosauro Paragas, stated the following in his written motion, filed on May 22, 1965:jgc:chanrobles.com.ph

" `The petitioner respectfully prays for a reconsideration of the resolution of this Honorable Court dated April 20, 1965 on the ground that it constitutes a violation of Section 14 of Rule 112 of the Rules of Court promulgated by this very Hon. Supreme Court, and on the further ground that it is likewise a violation of the most important right in the Bill of Rights of the Constitution of the Philippines, a culpable violation which is a ground for impeachment.

. . . The rule of law in a democracy should always be upheld and protected by all means, because the rule of law creates and preserves peace and order and gives satisfaction and contentment to all concerned. But when the laws and the rules are violated, the victims resort, sometimes, to armed force and to the ways of the cave-men! We do not want Verzosa and Reyes repeated again and again, killed in the premises of the Supreme Court and in those of the City Hall of Manila. Educated people should keep their temper under control at all time; But justice should be done to all concerned to perpetuate the very life of Democracy on the face of the earth."cralaw virtua1aw library

Considering the foregoing expressions to be derogatory to its dignity, this Court, by Resolution of June 2, 1965, after quoting said statements, required Atty. Sebastian to show cause why administrative action should not be taken against him.

On June 18, 1965, counsel filed an "explanatory memorandum" stating:jgc:chanrobles.com.ph

"When we said that the said violation is a ground for impeachment, the undersigned did not say that he would file impeachment proceedings against the Justices who supported the resolution. We said only what we said. The task of impeaching the highest Justices in this country is obviously not the task for a common man, like the undersigned; it is a herculean task which only exceptional men, like Floor Leader Jose Laurel Jr., can do. In addition to this, we do not have the time, the means and the strength for this purpose.

"The assertion that "But when the laws and the rules are violated, the victims resort sometimes, to armed force and to the ways of the cave-men! We do not want Verzosa and Reyes repeated again and again, killed in the premises of the Supreme Court and in those of the City Hall of Manila, is only a statement of fact and of our wish. We learn from observation that when the laws and the rules are violated, the victims, sometimes, resort to armed force and to the ways of the cave-men, as shown in the case of Luis M. Taruc and in the case of Jesus Lava, both of whom went to the mountains when they were not allowed to take their seats in the House of Representatives and, according to the newspapers, one was charged with murder and was found guilty. It was only recently that Jesus Lava surrendered to the authorities. We had this said recollection when we wrote the underlined passage mentioned in this paragraph. While writing that BRIEF MOTION FOR RECONSIDERATION, the thought of Verzosa and Reyes flashed across the mind of the undersigned as the shooting of those two government employees must have resulted from some kind of dissatisfaction with their actuations while in office. We stated or the undersigned stated that we are against the repetition of these abominable acts that surely disturbed the peace and order of the community. Shall the undersigned be punished by this Honorable Supreme Court only for telling the truth, for telling what happened before in this country? Our statement is clear and unmistakable, because we stated "We do not want Verzosa and Reyes repeated . . .." The intention of the undersigned is likewise clear and unmistakable; he is against the repetition of this acts of subversion and hate!"

We find the explanation submitted to be unsatisfactory. The expressions contained in the motion for reconsideration, previously quoted, are plainly contemptuous and disrespectful, and the reference to the recent killing of two employees is but a covert threat upon the members of the Court.

That such threats and disrespectful language contained in a pleading filed in Court are constitutive of direct contempt has been repeatedly decided (Salcedo v. Hernandez, 61 Phil. 724; People v. Varturanza, 52 Off. Gaz., 769; Medina v. Rivera, 66 Phil. 151; De Joya v. Court of First Instance of Rizal, 99 Phil., 907; Sison v. Sandejas, L-9270, April 29, 1959; Lualhati v. Albert, 57 Phil. 86). What makes the present case more deplorable is that the guilty party is a member of the bar; for, as remarked in People v. Carillo, 77 Phil. 580

"Counsel should conduct himself towards judges who try his cases with their courtesy that all have a right to expect. As an officer of the Court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice."cralaw virtua1aw library

"It is right and plausible that an attorney in defending the cause and rights of his client should do so with all the fervor and energy of which he is capable, but it is not, and never will be so for him to exercise said right by resorting to intimidation or proceeding without the propriety and respect which the dignity of the courts require." (Salcedo v. Hernandez, [In re Francisco], 61 Phil. 729)

Counsels disavowal of any offensive intent is of no avail, for it is a well-known and established rule that defamatory words are to be taken in the ordinary meaning attached to them by impartial observers.

"A mere disclaimer of any intentional disrespect by appellant is no ground for exoneration. His intent must be determined by a fair interpretation of the languages by him employed. He can not escape responsibility by claiming that his words did not mean what any reader must have understood them as meaning" (In re Franco, 67 Phil. 313)

WHEREFORE, Atty. Jeremias T. Sebastian is hereby found guilty of direct contempt, and sentenced to pay a fine of P200.00 within ten days from notice hereof, or, in case of default to suffer imprisonment not exceeding ten (10) days. And he is warned that a subsequent repetition of the offense will be more drastically dealt with.

Bengzon,C.J., Bautista Angelo, Concepcion, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar,JJ., concur.

Barrera,J., is on leave.

DIGESTParagas vs. CruzPost undercase digests,Legal EthicsatThursday, February 23, 2012Posted bySchizophrenic MindFacts:In asking for reconsideration of the Courtsdismissalof his petition for certiorari inthe presentcase, counsel for the petitioner, Atty. Jeremias Sebastian, used derogatoryexpressionsagainst the dignity of the Court inthe languageof his motion for reconsideration.

Issue:Whether or not Atty. Sebastian is administratively liable for his actions/language.

Held:Theexpressionscontained in the motion for reconsideration penned by the counsel of the petitioner are plainly contemptuous and disrespectful and he is hereby guilty of direct contempt of court.

As remarked in People vs. Carillo: Counsel should conduct himself towardsthe judgeswho try his cases with that courtesy all have a right to expect. As an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts soessentialto the proper administration of justice.

It is right and plausible that an attorney, in defending the cause and rights of his client, should do so with all the fervor and energy of which he is capable, but it is not, and never will be so, for him to exercise said right by resorting tointimidationor proceeding without the propriety and respect which the dignity of the courts require.

IN THE MATTER OF ATTORNEY LOPE E. ADRIANO Member of the Philippine Bar. PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.REMIGIO ESTEBIA,accused-appellant.SANCHEZ,J.:Once again, this Court is confronted with the unwanted task of ascertaining whether certain acts and conduct of a member of the Bar deserve disciplinary action.The problem arose because of facts that follow:One Remigio Estebia was convicted of rape by the Court of First Instance of Samar,1and sentenced to suffer the capital punishment. His case came up before this Court on review.On December 14, 1966, Lope E. Adriano, a member of the Bar, was appointed by this Court as Estebia's counselde oficio. In the notice of his appointment, Adriano was required to prepare and file his brief within thirty days from notice. He was advised that to enable him to examine the case, the record would be at his disposal. Adriano received this notice on December 20, 1966. On January 19, 1967, Adriano sought for a 30-day extension to file appellant's brief in mimeographed form. On February 18, Adriano again moved for a 20-day extension (his second). This was followed by a third filed on March 8, for fifteen days. And a fourth on March 27, also for fifteen days. He moved for a "last" extension of ten days on April 11. On April 21, he even sought a special extension of five days. All these motions for extension were granted. The brief was due on April 26, 1967. But no brief was filed.On September 25, 1967, Adriano was ordered to show cause within ten days from notice thereof why disciplinary action should not be taken against him for failure to file appellant's brief despite the lapse of the time therefor. Adriano did not bother to give any explanation.For failing to comply with the September 25, 1967 resolution, this Court, on October 3, 1968, resolved to impose upon him a fine of P500 payable to this Court within fifteen days from notice with a warning that upon further non-compliance with the said resolution of September 25, 1967 within the same period of fifteen days, "more drastic disciplinary action will be taken against him." Still, counsel paid no heed.Finally, on December 5, 1968, this Court ordered Adriano to show cause within ten days from notice thereof why he should not be suspended from the practice of law "for gross misconduct and violation of his oath of office as attorney." By express order of this Court, the resolution was personally served upon him on December 18, 1968. He ignored the resolution.Upon the facts just narrated, we now pass judgment.1. By specific authority, this Court may assign an attorney to render professional aid to a destitute appellant in a criminal case who is unable to employ an attorney. Correspondingly, a duty is imposed upon the lawyer so assigned "to render the required service."2A lawyer so appointed "as counsel for an indigent prisoner", our Canons of Professional Ethics demand, "should always exert his best efforts" in the indigent's behalf.3No excuse at all has been offered for non-presentation of appellant's brief. And yet, between December 20, 1966, when he received notice of his appointment, and December 5, 1968, when the last show cause order was issued by this Court, more than sufficient time was afforded counsel to prepare and file his briefde oficio. The death sentence below imposed was upon a plea of guilty. The record of the proceedings leading to the lower court's sentence consists of but 31 pages. Counsel had the record since January 19, 1967. In fact, in his third motion for extension of time, he manifested that the drafting of apellant's brief "is more than half-way through" and that "additional time is needed to review, effectuate the necessary corrections, put in final form and print the said brief." In his motion for fourth extension, he intimated that the preparation of the brief "is almost through" and that "additional time is needed to redraft and rehash some significant portions of said brief and have the same stencilled and mimeographed upon completion of a definitive text." His motion for last (fifth) extension of time came with the excuse that he "suddenly got sick (influenza) in the course of redrafting and rehashing some significant portions of said brief, which ailment hampered and interrupted his work thereon for sometime." Finally, in his "Special Extension of Time" to file brief, he claimed that he needed only five days from April 21, 1967 to put said brief in final form and have the same stencilled and mimeographed.lawphi1.ntIn the face of the fact that no brief has ever been filed, counsel's statements in his motions for extension have gone down to the level of empty and meaningless words; at best, have dubious claim to veracity.It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. His is to render effective assistance. The accused defendant expects of him due diligence, not mere perfunctory representation. We do not accept the paradox that responsibility is less where the defended party is poor. It has been said that courts should "have no hesitancy in demanding high standards of duty of attorneys appointed to defend indigent persons charged with crime."4For, indeed, a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self interest. Because of this, a lawyer should remain ever conscious of his duties to the indigent he defends.Worth remembering is the 1905 case ofIn the matter of Jose Robles Lahesa.5He was counselde oficiobefore the Supreme Court in two cases: one forrobo en cuadrillaand the other for homicide. He failed to take any action in behalf of the defendants in both eases. This Court imposed upon him a fine of P200. Significant is the pronouncement we there made that: "This court should exact from its officers and subordinates the most scrupulous performance of their official duties, especially when negligence in the performance of those duties necessarily result in delays in the prosecution of criminal cases and the detention of accused persons pending appeal." The validity of the foregoing observation remains to the present day.6It applies to the present case.Here, appellant was without brief since December 20, 1966. The effect of this long delay need not be essayed. We, therefore, find that Attorney Lope E. Adriano has violated his oath that he will conduct himself as a lawyer according to the best of his "knowledge and discretion".2. An attorney's duty of prime importance is "[t]o observe and maintain the respect due to the courts of justice and judicial officers. The first Canon of the Code of Ethics enjoins a lawyer "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." By the oath of office, the lawyer undertook to "obey the laws as well as the legal orders of the duly constituted authorities." InPeople vs. Carillo,8this Court's pointed observation was that as an officer of the court, it is a lawyer's "sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice."Here, we have a clear case of an attorney whose acts exhibit willful dis-obedience of lawful orders of this Court. A cause sufficient is thus present for suspension or disbarment.9Counsel has received no less than three resolutions of this Court requiring compliance of its orders. To be recalled is that on September 25, 1967, this Court directed him, in ten days from notice, to show cause why disciplinary action should not be taken against him for his failure to file appellant's brief despite the lapse of the time therefor. Nothing was done by counsel for over a year. To impress upon counsel the gravity of his repeated failure to obey this Court's orders, on October 3,1968, a fine of P500 was clamped upon him. He was directed to pay that fine in ten days. He was in that order also required to file his brief in fifteen days. He was warned that more drastic disciplinary action would be taken upon his failure to do either. Still he remained unmoved. Then, this Court issued the peremptory order of December 5, 1968 commanding him to show cause within ten days from notice thereof why he should not be suspended from the practice of law for gross misconduct and violation of his oath of office. The Court made it certain that this order would reach him. He personally acknowledged receipt thereof. He has not paid the fine. He has done nothing.This is 1969. No brief has as yet been filed. And this, inspite of the fact that as early as March 27, 1967, when he moved for a fourth extension of time to file his briefde oficio, he represented to this Court that all that was needed was to redraft and to rehash some significant portions of the brief which was almost through and to have the same stencilled and mimeographed upon completion of a definitive text.Disrespect is here present. Contumacy is as patent. Disciplinary action is in order.Controlling here is the 1961 decisionIn the Matter of Atty. Filoteo Dianala Jo.10There, as here, counsel failed to file appellant's brief (in a criminal case) despite extensions of time granted him by this Court. Likewise, this Court issued a show-cause order why disciplinary action should not be taken against him. The explanation was considered unsatisfactory. This Court imposed a fine of P50 payable in ten days from notice. Attorney Dianala Jo did not pay that fine. Came the subsequent resolution of this Court advising him to pay the fine, otherwise, he would be arrested and confined to jam. This warning was not heeded. On November 18, 1960, the Court resolved to give him ten days from notice within which to explain why he should not be suspended from the practice of law. Despite receipt of this notice, he did not care to explain his behaviour which this Court considered as "consumacy and unwillingness to comply with the lawful orders of this Court of which he is an officer or to conduct himself as a lawyer should, in violation of his oath of office." He was suspended from the practice of law for three months.In the present case, counsel's pattern of conduct, it would seem to us, reveals a propensity on the part of counsel to benumb appreciation of his obligation as counsel de oficio and of the courtesy and respect that should be accorded this Court.For the reasons given, we vote to suspend Attorney Lope E. Adriano from the practice of law throughout the Philippines for a period of one (1) year.Let a copy of this resolution be attached to the personal record, in this Court, of Lope E. Adriano as member of the Bar. So ordered.ROMULO SJ TOLENTINO, State Prosecutor and Acting Provincial Prosecutor of Camarines Sur,complainant, vs.JUDGE ALFREDO A. CABRAL, Regional Trial Court, Branch 30, San Jose, Camarines Sur,respondent.D E C I S I O NMENDOZA,J.:This is a complaint[1]filed by State Prosecutor and Acting Provincial Prosecutor of Camarines Sur Romulo SJ Tolentino against Judge Alfredo A. Cabral of the Regional Trial Court, Branch 30, San Jose, Camarines Sur, for grave abuse of discretion, gross ignorance of the law, grave abuse of authority, violations of Canons 1, 2, and 3 of the Code of Judicial Conduct, rendering unjust orders, and grave misconduct in connection with the trial of Criminal Case No. T-1417 entitled "People v. Roderick Odiamar."The facts are as follows:Roderick Odiamar was charged with rape upon the complaint of Cecille Buenafe before the sala of herein respondent judge. On October 24, 1994, he filed a motion for bail, which the prosecution opposed. In an order, dated March 24, 1995, respondent judge granted bail stating that the evidence against the accused was not strong.[2]On April 19, 1995, counsel for the accused filed anex-partemotion for the confinement of the accused in a hospital on the ground that he was suffering from "Type I insulin dependent diabetes mellitus." On the same date, respondent judge granted the said motion, at the same time setting a hearing on April 26, 1995 for the purpose of determining the status of the illness of the accused and the nature and duration of his treatment.Complainant was furnished a copy of the order setting the motion for hearing. Thus, even as he failed to appear, the hearing proceeded. Dr. Benjamin Florendo testified, after which respondent judge issued an order, dated May 5, 1995, confirming the hospitalization of the accused.The records further show that on June 19, 1995, respondent judge issued an order amending his March 24, 1995 order granting bail in order to correct some clerical and typographical errors. The records of the case were then transmitted to the RTC, Branch 58, San Jose, Camarines Sur presided over by Judge Policarpio Camano, Jr. But, Judge Camano, Jr. inhibited himself, for which reason the records were returned to the RTC, Branch 30 of respondent judge.[3]Prior to the said transfer, the prosecution filed several motions, namely, Motion to Recall and Invalidate Order of March 24, 1995 granting bail, Motion to Recall and/or Reconsider Order of May 5, 1995 confirming the hospitalization of the accused, and Motion for Clarification.In an order, dated June 14, 1996, respondent judge denied the first two motions for lack of merit but took no action on the other motions filed by the prosecution, to wit, Motion for Clarification, Motion to Resolve Pending Motions, and its Supplemental Motion. Respondent judge considered the motions to be mere reiterations of the two motions denied by him. On June 26, 1996, respondent judge ordered the release of the accused from detention.[4]Complainant then filed this complaint, alleging that the order of March 24, 1995 of respondent judge, which granted bail to the accused, was carelessly prepared, if not ghostwritten, because of its "incredible reasoning, grammatical, and clerical errors"; that the belated efforts of respondent judge to correct the alleged typographical errors in his order of June 19, 1995, which substantially changed the meaning of the order granting bail, was resorted to in order to conceal his negligence and partiality; that the factual findings were arbitrary and partial to the accused; and that the conclusions were based on misapplied, misunderstood, and overlooked facts and circumstances, such as the intentional omissions of the pertinent testimonies of witnesses, which would alter the result of the order if they were considered.[5]Moreover, complainant points out that respondent judge granted the request of the accused for hospitalization merely on the basis of an ex-parte motion which should have been denied for being a mere scrap of paper. Although notice was later sent to the prosecution, complainant claims that he was not able to attend the hearing on April 26, 1995, because he received the notice on the same day the hearing was held. Respondent judge thereafter issued his order of May 5, 1995 confirming the order for the hospitalization of the accused.[6]Complainant further alleges that the resolution of the prosecutions several motions were made beyond the reglementary period.As regards the bail granted to the accused, complainant claims that the amount of P30,000.00 fixed by respondent judge is only 15% of the recommended amount ofP200,000.00 in the 1996 Bail Bond Guide; that the bail was approved without registration in the Provincial Assessors Office; and that when apprised of the need for registration, respondent judge, instead of cancelling the bond, issued an order, dated June 14, 1996, requiring the bondsman to register the same.Finally, complainant makes much of the detachment of certain pages of the records in Criminal Case No. T-1417 (pages 2, 17, 41, 44, 47, 50, 53, 58, 63, 66, 69, and 73) and the error in pagination of pages 525 and 585. These, according to complainant, raise a suspicion that the records have been tampered with or altered.Complainant contends that the foregoing acts complained of constitute bad faith, partiality, and bias on the part of respondent.On the other hand, respondent judge denies the charges against him and alleges the following:He issued the March 24, 1995 order granting bail because the prosecution failed to show that the evidence against the accused was strong. The testimony of the offended party in the criminal case, given on cross-examination, casts doubts on her claim that she was sexually abused through force and coercion. Respondent judge relied on the testimony of the examining physician given on cross-examination that it was possible that the lacerations on the hymen of the offended party had been caused a month, six months, or even one year, before the alleged rape.[7]Respondent judge vehemently denies complainants allegation that his order granting bail was ghostwritten. While there may have been grammatical errors in the order, he claims that the same were committed by an aide whom he had asked to type the order. But, he said, he subsequently amended his order to correct the typographical errors.With respect to allegations that respondent judge omitted certain material facts in his order granting bail in order to favor the accused, respondent judge states that he is not really required to quote everything in the transcripts, but that he is at liberty to include or disregard testimony which he thought was "insignificant, irrelevant, immaterial, incredible, [or] absurd."As regards his order of April 19, 1995 granting the request of the accused to be ordered hospitalized, respondent judge explains that the accused is a "Type I insulin dependent" diabetic person, any delay in the treatment of whom could be fatal. Hence, for humanitarian reasons, he decided to "act now and investigate later." Respondent judge claims that the prosecution was given a copy of the ex-parte motion, as well as the April 19, 1995 order setting the hearing on the motion for hospitalization. However, despite notice to it, the prosecution did not attend the hearing on April 26, 1995. He alleges that because medical evidence presented during the hearing was uncontradicted, he issued on May 5, 1995 his order confirming his previous order for the confinement of the accused in the hospital.On the alleged delay in resolving the prosecutions Motion to Recall and Invalidate Order of March 24, 1995 and Motion to Recall and/or Reconsider Order of May 5, 1995, respondent judge states that the delay was due to the fact that the case stayed in the RTC, Branch 58, presided by Judge Policarpio Camano, Jr. from April 10, 1995 until April 15, 1996, when the records were returned to respondents sala at Branch 30, because Judge Camano, Jr. had inhibited himself from the case. But, respondent claims, 60 days after receipt of the records, he resolved the two motions in an order dated June 14, 1996.Relative to the alleged improper posting of bond, respondent judge claims that he required the bondsman to comply with the registration requirement instead of ordering the bonds cancellation because the defect was only formal and that he could not have been guilty of violation of the 1996 Bail Bond Guide because he fixed the amount of the bail prior to the promulgation of said Bail Bond Guide. On the other hand, the fact that the accused was ill, coupled with the fact that the prosecution did not present strong evidence to prove his guilt, rendered the probability of flight remote, according to respondent judge.With reference to the alleged detaching of pages of the criminal case, respondent judge argues that he has no supervision over the Clerk of Court of RTC, Branch 58 and of the Municipal Circuit Trial Court of San Jose, Camarines Sur where the case originated. On the other hand, the error in pagination was the result of the mistakes of an overburdened utility worker in the court.[8]Respondent judge filed counter-charges against complainant for breach of Code of Professional Responsibility consisting of the following:1. violation of Canon 10, Rule 10.02 (knowingly misguiding or misrepresenting the contents of a paper);2. violation of Canon 10, Rule 10.01 (doing falsehood in court, misleading the court); and3. violation of Canon 11, Rule 11.03 (for using offensive and menacing language before the court).Respondent judge claims that complainant deliberately and maliciously distorted some of his orders by misrepresenting their contents, thus-1. The order of June 14, 1996 in which it was stated:Now going over the grounds stated in the first motion, the court believes that the same are not well-founded and meritorious. Rightly so, because they are anchored on the misappreciation of evidence and on clerical, if not, typographical errors. . . .According to respondent judge, complainant made it appear that the judge had admitted misappreciating the evidence of the prosecution in granting bail.2. Likewise, respondent judge allegedly admitted that a court aide tampered with or altered the draft of the order granting bail. However, what respondent judge said in his order, dated June 19, 1995, correcting alleged errors in his order, dated March 24, 1995, granting bail, was the following:For utilizing an aide to type the order dated March 24, 1995 due to the volume of work of the stenographers as a consequence of the morning and afternoon hearings, errors were committed consisting of an omission of words or a word, misspelling and other clerical mistakes. . . .3. Complainant misled the court when he stated in his Motion to Resolve Pending Motions, dated March 29, 1996, that the counter-affidavits of accused and his witness were attached to said motion when this was not so, as there were no such counter-affidavits in the records of the case.4. Lastly, complainant in his Final Manifestation, dated June 20, 1996, stated:The PEOPLE OF THE PHILIPPINES, by the undersigned State Prosecutor and Acting Provincial Prosecutor on Case, to this Honorable Court respectfully manifests that should there be no favorable court action before the end of June 1996 . . . the undersigned will be constrained to file the necessary complaint before the Honorable Supreme Court . . .I.The Office of the Court Administrator recommends that respondent judge be found guilty of the charges against him. On April 19, 1999, however, complainant filed a Manifestation stating that the complaint against respondent judge has been rendered moot and academic by the decision of this Court inPeople v. Cabral[9]annulling the March 24, 1995 order granting bail of respondent judge. Hence, the preliminary question is whether, as a result of the decision in the aforesaid case forcertiorari, this case has become moot and academic.We hold that the decision in thecertioraricase has not in any way rendered this administrative case moot and academic. To the contrary, we think that because of that decision finding respondent judge guilty of grave abuse of discretion in issuing his order of March 24, 1995, there is more reason to proceed with the instant case to determine whether he is administratively liable. Grave abuse of discretion may constitute serious misconduct warranting discipline by this Court. Moreover, as this Court has said:Administrative actions cannot be made to depend upon the will of every complainant who may, for one reason or another, condone a detestable act. The Supreme Court does not, as a matter of course, dismiss administrative cases against members of the Bench on account of withdrawal of charges.[10]II.We thus proceed to determine whether respondent judge is guilty of the charges leveled against him, warranting the imposition of administrative sanctions.Re:Order of March 24, 1995 granting bailIn the decision in thecertioraricase, it was found that respondent judge omitted certain material facts to justify the grant of bail to the accused. It was held in that case:[T]he lower courts order failed to mention and include some significant factors and circumstances which, to the mind of this Court, are strong, clear and convincing. First, it excluded the testimony of Dr. Belmonte about her psychiatric examination of the victim as well as her findings that the latter manifested "psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of thought content as well as depressive signs and symptom." This particular testimony should have been considered and included in the summary as it was given by an expert witness. Second, the unrebutted offer of compromise by accused-respondent is an implied admission of guilt which should have been noted as an offer of a compromise is generally considered as admissible evidence against the party making it.[11]Not only did respondent judge omit vital and material facts in his order granting bail, he also misapplied legal doctrines in order to favor the accused. On this point, this Court said:Aside from failing to mention those important pieces of evidence and testimonies, this Court has likewise observed that the lower court misapplied some doctrines in criminal law. First, the lower court, in its order, intoned the following doctrine that "evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with common experience and observation of mankind."According to the lower court, the credibility of the complainant is suspect because she willingly went with accused-respondent to the resort where she was allegedly raped. In the scene of the crime, complainant allegedly voluntarily drank four shots of gin. The complainant, likewise, never protested nor cried while they were on their way to accused-respondents house. Because of those findings, the lower court doubted the credibility of complainant and stated that the crime of rape is not to be presumed and that sexual acts between a man and a woman are presumed to be consensual. In overcoming such presumption, much depends on the credibility of the complainant.This Court cannot agree. First, there was no finding of any ill-motive on the part of complainant in filing the rape charge against accused-respondent. This should have been taken into consideration. The following rebuttal of petitioner to the findings of the lower court is more credible:"It must also be stressed that Cecille testified that she wasforcedby respondent to drink gin with the help of his friends by holding her hair and putting the glass on her mouth (Pages 5-7, TSN, November 17, 1994). More, respondent and his friends blew smoke into her face forcing her to inhale the intoxicating smoke. Whenever she attempted to leave the place, she was forced to sit down by Odiamar and his friends (Pages 6-7, TSN, November 17, 1994).Similarly, Cecille categorically declared that she was threatened by Florece with a gun (Pages 17, TSN, November 17, 1994).The requirement of force and intimidation in the crime of rape are relative and must be viewed in light of the victims perspective and the offenders physical condition (People v. Plaza, 242 SCRA 724 [1995]). Further, physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself against her will because of fear for life and personal safety. (People v. Ramos, 245 SCRA 405 [1995])In this case, Cecille was only fifteen (15) years old at the time of the incident in question. At her age, it is reasonable to assume that a shot of gin rendered her tipsy. Thus, four (4) shots of gin must have rendered her dizzy, intoxicated and deprived of will or reason. The resulting weakness and dizziness which deprived Cecille of reason, will and freedom must be viewed in light of her perception and judgment at the time of the commission of the crime, and not by any hard and fast rule because in "rape cases, submission does not necessarily imply volition." (Querido, 229 SCRA 745 [1994])"It must likewise be taken into consideration that when Cecille went with the group of accused-respondent, she was of the impression that it was just for a joy ride. The conclusion made by the trial court that Cecille must have consented to the sexual act because she acquiesced to go with them in the first place is, therefore, bereft of any legal or factual support, if notnon sequitur. That she agreed to accompany them for a joy ride does not mean that she also agreed to the bestial acts later committed against her person.Second, the lower court stated that "force and violence in the offense of rape are relative terms, depending on the age, size and strength of the parties and their relation to each other." The lower court enunciated this doctrine in finding that the alleged rape was actually a consensual act since the prosecution was unable to show that complainant suffered any injury nor show any evidence that her pants or blouse was torn. Neither was there any evidence that accused-respondent exerted overpowering and overbearing moral influence over the offended party.This Court is of the impression that when the lower court invoked the above doctrine, it readily concluded that complainant agreed to the sexual act disregarding testimonies lending credence to complainants allegation that she was threatened and intimidated as well as rendered weak and dizzy, not only by the smoke of the marijuana cigarette but also by intoxication, thereby facilitating the commission of the crime. It was not imperative for the prosecution, in order to prove the elements of force or intimidation to show that Cecille had broken limbs or that her blouse or pants were torn. Her testimony to that effect would have sufficed. Nevertheless, the prosecution still exerted efforts to corroborate Cecilles claim by presenting the examining physician who testified that Cecille suffered hymenal lacerations and lesions near the umbilicus area. Unfortunately, however, the lower court chose to ignore these telling pieces of evidence.This Court views this apparent lapse on the part of the lower court with concernand agrees with petitioner, in accordance with well established jurisprudence, that proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime. Further, in crimes against chastity, the medical examination of the victims genitalia is not an indispensable element for the successful prosecution of the crime. The examination is merely corroborative in nature. And contrary to the theory espoused by the lower court, a hymenal laceration is not conclusive proof that one is experienced in sexual intercourse.Second, the lower court highlighted the testimony of Dr. Decena to the effect that the cigarette burns indicated that the lesions near complainants umbilicus were due to skin diseases. Notably, however, the lower court again failed to mention that Dr. Decena likewise positively testified that the wounds could have been "caused by cigarette butts as alleged by the victim" which corroborates Cecilles testimony that respondent burned her "right side of the stomach" thrice.It is thus indicative from the above observations that the lower courtabused its discretion and showed manifest bias in favor of accused-respondent in determining which circumstances are to be considered in supporting its decision as to the guilt of accused-respondent. . . .[12]As thus shown by the records, respondent judge granted bail despite sufficient evidence presented by the prosecution showing the guilt of the accused.Respondent judge's contention that the court is at liberty to omit evidence or testimony if he finds it "insignificant, irrelevant, immaterial, [or] absurd" is untenable. As the decision in thecertioraricase demonstrates, the evidence omitted was vital or important in showing that the evidence of guilt of the accused is strong.Furthermore, respondent judge failed to consider basic criminal law doctrines in the issuance of his questioned order, which omission, to the mind of this Court, constitutes gross ignorance of the law. InBacar v. De Guzman, Jr.,[13]it was held that when the law violated is elementary, the failure to know or observe it constitutes gross ignorance of the law. Reiterating this ruling, it was emphasized inAlmeron v. Sardido[14]that the disregard of an established rule of law which amounts to gross ignorance of the law makes a judge subject to disciplinary action.Prescinding from the foregoing, it is undeniable that respondent judge knowingly issued a manifestly unjust order granting bail to the accused. As the OCA noted:. . . There is no doubt that the respondent Judge rendered the assailed order knowing it to be unjust as it was clearly contrary to the applicable laws, not supported by evidence; and more importantly, there are indications that respondent issued the order with conscious and deliberate intent to do an injustice (Gonzales v. Bersamin, 254 SCRA 652 [1996]; Contreras v. Solis, 260 SCRA 572 [1996]). In the case at bar, respondent Judge granted bail to the accused in willful and manifest disregard of evidences presented by the prosecution which strongly warrants denial of the bail obviously to favor the accused.Re:Order directing and confirming the hospitalization of the accusedWith respect to the order granting the ex-parte motion for hospitalization of the accused, we likewise find that respondent judge issued the same with grave abuse of discretion and manifest bias. He justified his order of April 19, 1995, granting the motion of the accused for hospitalization and setting the same for hearing on April 26, 1995, on the need to act promptly, because the life of the accused was at stake. Hence, he thought he could "act now and investigate later," as he in fact set a hearing on the motion on a later date.However, the prosecution was not able to attend the hearing set on April 26, 1995 because a copy of the order setting the motion for hearing was received by the prosecution only on the day of the hearing. The order was sent to the prosecution by mail despite the fact that, as respondent judge admitted, his court and the office of the public prosecutor are in the same building. Certainly, it would have been easier and more effective if the order was personally served on the prosecution.Nor was there a need to resolve the motion immediately as the accused was already confined in the hospital. Respondent judge must have been aware that the prosecution was going to oppose the motion for hospitalization as the prosecution had vehemently done so in the past. Apparently, it was to give the prosecution no chance to file an opposition that respondent judge fixed the date of the hearing close to the date of its mailing to the complainant. Once again, respondent judge clearly showed partiality for the accused.Re:Detached pages of the records of the case involving accused OdiamarAs administrators of their courts, judges should adopt a system of record management. In this case, the loss of records in his office indicates gross negligence on his part.[15]When the Clerk of Court of the RTC, Branch 58, of which Judge Policarpio Camano, Jr. was the presiding judge, returned the records of the criminal case to the RTC, Branch 30 of respondent judge, the Clerk of Court stated in his transmittal letter that "pages 2, 17, 41, 44, 47, 50, 53, 58, 63, 66, 69, 73 were detached per notation appearing in the records and pages 525 and 585 were skipped/mispaged." The pages in question had been missing even when the records of the case were still in the RTC, Branch 30 of respondent judge. He cannot, therefore, excuse himself for the loss of the pages in question on the ground that the Clerk of Court of the RTC, Branch 58 was not under his administrative supervision and control. A prudent person would have exerted effort to determine the cause of the loss considering that the alleged detached pages consisted of several affidavits and preliminary examinations of relevant witnesses. His failure to do so constitutes gross negligence and inefficiency.Re:Delay in the resolution of motionsHowever, we find merit in respondent judges explanation for the seeming delay in the resolution of some motions. It appears that the records of the case were transmitted to the RTC, Branch 58 immediately after Judge Camano Jr.'s appointment on April 10, 1995. The records were not returned to the RTC, Branch 30, until April 15, 1996, after Judge Camano Jr. had inhibited himself from the consideration of the case.On the other hand, with respect to the amount of the bail bond as fixed by respondent judge and its approval without registration in the Provincial Assessors Office, the OCA correctly observed that there is no need to pass upon the validity of the same in view of the cancellation of the bail bond by the Court inPeople v. Cabral.Re:Penalty to be imposed for respondents infractionsWe find respondent judge guilty of violation of Canon 1, Rule 1.02, Canon 3, Rules 3.01, 3.02, 3.08, and 3.09 of the Code of Judicial Conduct.[16]With reference to the penalty to be imposed on him, the OCA recommends as follows:Indeed in his order, respondent Judge exhibited gross incompetence, gross ignorance of the law and gross misconduct. And under Rule 140, these charges are classified as serious charges (3) and carries a penalty ranging from fine to dismissal from service (10). However, this is his first administrative offense of this nature since his appointment as an RTC judge which may be considered to mitigate his liability. Hence, a penalty lower than removal may be properly imposed.It may be stated in this connection that complainant also filed an administrative complaint for violations of Canons 1, 2, and 3 of the Code of Judicial Conduct and for incompetence against then Judge Policarpio Camano, Jr. in connection with the grant of bail to herein accused Roderick Odiamar in Criminal Case No. T-1468 for violation of the Child Abuse Act (R.A. No. 7610), also allegedly committed against herein offended party Cecille Buenafe.[17]The case was dismissed and Judge Camano, Jr. was exonerated, because it was found that, although the imposable penalty could bereclusion perpetua,there was no showing that the evidence of guilt of the accused was strong. In fact, a preliminary investigation had been ordered in that case, but it was emphasized therein that if after preliminary investigation it was shown that there was strong evidence of the guilt of the accused, the bail granted to him should be cancelled. The facts of that case are, therefore, different from those of the case at bar.Re:Counter-charges against herein complainantWe find the countercharges against complainant to be meritorious.First, complainant is guilty as charged of misrepresenting the contents of respondent judges order of June 19, 1995, which constitutes violation of Canon 10, Rule 10.02,[18]by declaring in his Motion for Clarification:. . . The admission that a court aide tampered with or altered the draft of subject order which change is indicative of inexcusable negligence, fraud and falsification committed by that aide prejudicial to our rights . . . .The allegation that respondent admitted tampering with or altering the records is obviously an attempt by complainant either to obtain a favorable action by misleading the trial court or to badger, annoy, and cast disrepute to the respondent judge.Second, complainants explanation concerning the questioned counter-affidavits is unsatisfactory. He said:The foregoing quoted statement and the succeeding statements referring to the counter-affidavits of the accused and his witness . . . have never been objected [to] by the respondent and the accused until respondents Comment, and therefore by silence and operation of law respondent should be deemed to have admitted the veracity of said motion . . ....All our cited motions and other submissions kept referring to said counter-affidavits but respondent never reacted that these counter-affidavits are not parts of the records. Accused never objected and to date has not done so. In view of respondent and accuseds silence we were of the honest belief that these counter-affidavits are on file with the records. . . .[19]If there were indeed counter-affidavits in the records or at least attached to complainants Motion to Resolve Pending Motions, he should have said so in his Reply or Supplemental to Reply or appended copies of the said counter-affidavits, but he did none of these. Instead, he contended that the failure of respondent judge to object to the lack of counter-affidavits was an admission of the veracity of his assertion. This is sophistry. Complainant should be reminded that lawyers have an obligation to the court as well as to the opposing party to make only truthful statements in their pleadings. For his violation of this duty, complainant committed a breach of Canon 10, Rule 10.01 of the Code of Professional Responsibility.[20]In addition, he likewise committed a violation of Canon 11 of Rule 11.03[21]by threatening respondent judge that if his motions were not granted, respondent judge would be administratively charged. To be sure, the threat made against respondent judge was not a threat to do him bodily harm. Nonetheless, it was a threat. Needless to say, disrespectful, abusive and abrasive language, offensive personalities, unfounded accusations, or intemperate words tending to obstruct, embarrass, or influence the court in administering justice or to bring it into disrepute have no place in a pleading.[22]WHEREFORE, respondent Judge Alfredo A. Cabral of the Regional Trial Court, Branch 30, San Jose, Camarines Sur, is hereby found liable for grave abuse of authority, gross ignorance of the law, gross negligence and inefficiency, rendering unjust judgment and for violations of the Code of Judicial Conduct and, accordingly, is SUSPENDED from office for SIX (6) MONTHS without pay. On the other hand, complainant Romulo SJ Tolentino is REPRIMANDED for breach of Canon 10, Rules 10.01 and 10.02 as well as Canon 11, Rule 11.03 of the Code of Professional Responsibility. Both complainant and respondent judge are WARNED that repetition of the same or similar offenses in the future will be severely dealt with by this Court.SO ORDERED.GAVINA MAGLUCOT-AW, CATALINA ORCULLO, RICHARD ESTANO, NIDA MAGLUCOT, MELANIA MAGLUCOT-CATUBIG, EMILIANO CATUBIG, LADISLAO SALMA,petitioners,vs.LEOPOLDO MAGLUCOT, SEVERO MAGLUCOT, WILFREDA MAGLUCOT-ALEJO and CONSTANCIO ALEJO,respondents.D E C I S I O NKAPUNAN,J.:This petition for review oncertiorariassails the Decision, dated 11 November 1997, of the Court of Appeals in CA-G.R. CV No. 48816 which reversed and set aside the Decision, dated 13 December 1994, of the Regional Trial Court, Branch 30 of Dumaguete City, Negros Oriental in an action for recovery of possession and damages.The core issue in this case is whether a partition of Lot No. 1639 had been effected in 1952. Petitioners contend that there was already a partition of said lot; hence, they are entitled to exclusive possession and ownership of Lot No. 1639-D, which originally formed part of Lot No. 1639 until its partition. Private respondents, upon the other hand, claim that there was no partition; hence, they are co-owners of Lot No. 1639-D. Notably, this case presents a unique situation where there is an order for partition but there is no showing that the sketch/subdivision plan was submitted to the then Court of First Instance for its approval or that a decree or order was registered in the Register of Deeds.The antecedent facts of the case are as follows:KortePetitioners filed with the RTC a complaint for recovery of possession and damages alleging,inter alia,that they are the owners of Lot No. 1639-D. Said lot was originally part of Lot No. 1639 which was covered by Original Certificate Title No. 6775 issued in the names of Hermogenes Olis, Bartolome Maglucot, Pascual Olis, Roberto Maglucot, Anselmo Lara and Tomas Maglucot on 16 August 1927.[1]On 19 April 1952, Tomas Maglucot, one of the registered owners and respondents predecessor-in-interest, filed a petition to subdivide Lot No. 1639.[2]Consequently, on 13 May 1952, then CFI of Negros Oriental issued an order[3]directing the parties to subdivide said lot into six portions as follows:Rtcsppeda) Hermogenes Olis - lot 1639-Ab) Pascual Olis - lot 1639-Bc) Bartolome Maglucot - lot 1639-Cd) Roberto (Alberto) - lot 1639-DMaglucote) Anselmo Lara - lot 1639-Ef) Tomas Maglucot - lot 1639-F.[4]Sometime in 1963, Guillermo Maglucot rented a portion of Lot No. 1639-D (subject lot). Subsequently, Leopoldo and Severo, both surnamed Maglucot, rented portions of subject lot in 1964 and 1969, respectively, and each paying rentals therefor. Said respondents built houses on their corresponding leased lots. They paid the rental amount of P100.00 per annum to Mrs. Ruperta Salma, who represented the heirs of Roberto Maglucot, petitioners predecessor-in-interest. In December 1992, however, said respondents stopped paying rentals claiming ownership over the subject lot. Petitioners thus filed the complainta quo.SdaadscAfter trial, the lower court rendered judgment in favor of petitioners. The RTC found the existence of tax declarations in the names of Hermogenes Olis and Pascual Olis (purported owners of Lot Nos. 1639-A and 1639-B, respectively)[5]as indubitable proof that there was a subdivision of Lot No. 1639. It likewise found that Tomas Maglucot, respondents predecessor-in-interest, took active part in the partition as it was he, in fact, who commenced the action for partition.[6]The courta quocited Article 1431 of the Civil Code which states that "[t]hrough estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon." Applying said provision of law, it held that while there was no court order showing that Lot No. 1639 was partitioned, its absence could not be used by Tomas Maglucot, or respondents as his successors-in-interest, to deny the existence of an approved partition against the other co-owners who claim that there was one.[7]Said court, likewise, ruled that the tax declarations[8]over the houses of respondents, expressly stating that the same are constructed on the lots of Roberto Maglucot, constitute a conclusive admission by them of the ownership of the subject lot by the latter.[9]The dispositive portion of the lower courts decision reads as follows:MissdaaWHEREFORE, on the basis of the foregoing discussion, judgment is hereby rendered in favor of the plaintiffs against the defendants ordering the latter:1. To demolish their houses inside lot 1639-D, vacate the premises thereof and deliver the possession of the same to Plaintiffs;Slxmis2. To jointly and solidarily pay plaintiffs the sum of P15,000.00 for attorneys fees;3. To each pay plaintiffs the sum of P100.00 every year from 1993 for actual damages representing the amount of unpaid rentals up to the time they actually vacate the premises in question;Sclaw4. To pay the costs.[10]On appeal, the CA reversed the decision of the RTC. The appellate court ruled that the sketch plan and tax declarations relied upon by petitioners are not conclusive evidence of partition.[11]The CA likewise found that the prescribed procedure under Rule 69 of the Rules of Court was not followed. It thus declared that there was no partition of Lot No. 1639.SlxscPetitioners filed this petition for review oncertiorarialleging that the CA committed the following reversible errors:IIN VIOLATING THE LAW ON ACQUISITIVE PRESCRIPTION PLAINTIFFS HAVING POSSESSED LOT 1639-D SINCE 1946;IIIN VIOLATING THE LAW ON ESTOPPEL; THE FACT OF PAYMENT OF RENTALS AND OFFER TO BUY BY THE DEFENDANTS IS ADMISSION THAT THE AREA IN LOT 1639-D, HAD LONG BEEN ADJUDICATED TO PLAINTIFFS;IIIIN DECLARING THAT THERE WAS NO PRIOR PARTITION, CONTRARY TO THE FINDINGS OF THE TRIAL COURT, AND AGAINST THE EVIDENCE ON RECORD, OF WHICH IF PROPERLY CONSIDERED WOULD CHANGE THE OUTCOME OF THE CASE;IVIN DECLARING THAT THERE IS NO LAW OR JURISPRUDENCE APPLICABLE UNDER THE PREMISES; THIS WOULD ONLY SHOW THAT THE RECORD OF THE CASE WAS NOT PROPERLY SCRUTINIZED, AND THE LAW WAS NOT PROPERLY STUDIED; ESPECIALLY IN THE CASE AT BENCH THAT THE ORAL AND MUTUAL PARTITION HAPPENED DURING THE REGIME OF THE OLD RULES OF PROCEDURE;[12]Petitioners maintain that Lot No. 1639 was mutually partitioned and physically subdivided among the co-owners and that majority of them participated in the actual execution of the subdivision. Further, the co-owners accepted their designated shares in 1946 as averred by Tomas Maglucot in his petition for partition.[13]Petitioners opine that in 1952, Tomas Maglucot himself initiated a court proceeding for a formal subdivision of Lot No. 1639. In said petition, he averred that only Hermogenes Olis and the heirs of Pascual Olis were not agreeable to the partition.[14]Petitioners further contend that respondents admitted in their tax declarations covering their respective houses that they are "constructed on the land of Roberto Maglucot."[15]Simply put, petitioners vigorously assert that respondents are estopped from claiming to be co-owners of the subject lot in view of the mutual agreement in 1946, judicial confirmation in 1952, and respondents acquiescence because they themselves exclusively exercised ownership over Lot No. 1639-A beginning 1952 up to the present.[16]For their part, respondents posit three points in support of their position. First, they emphasize that petitioners failed to show that the interested parties were apprised or notified of the tentative subdivision contained in the sketch and that the CFI subsequently confirmed the same.[17]Second, they point to the fact that petitioners were unable to show any court approval of any partition.[18]Third, they maintain that Lot No. 1639 remain undivided since to date, OCT No. 6275 is still an existing and perfectly valid title, containing no annotation of any encumbrance or partition whatsoever.[19]After a careful consideration of the pleadings filed by the parties and the evidence on record, we find that the petition is meritorious. As stated earlier, the core issue in this case is whether there was a valid partition in 1952.ScslxPreliminarily, this Court recognizes that "the jurisdiction of this Court in cases brought before it from the Court of AppealsviaRule 45 of the Rules of Court is limited to reviewing errors of law. Findings of fact of the latter are conclusive, except in the following instances: (1) when the findings are grounded entirely on speculation, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record."[20]This case falls under exceptions (7), (8) and (10) in that the findings of facts of the CA are in conflict with that of the RTC, are mere conclusions without citation of specific evidence on which they are based and are premised on absence of evidence but are contradicted by the evidence on record. For these reasons, we shall consider the evidence on record to determine whether indeed there was partition.SlxIn this jurisdiction, an action for partition is comprised of two phases: first, an order for partition which determines whether a co-ownership in fact exists, and whether partition is proper; and, second, a decision confirming the sketch or subdivision submitted by the parties or the commissioners appointed by the court, as the case may be.[21]The first phase of a partition and/or accounting suit is taken up with the determination of whether or not a co-ownership in fact exists, (i.e., not otherwise legally proscribed) and may be made by voluntary agreement of all the parties interested in the property. This phase may end with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exist, or partition is legally prohibited. It may end, upon the other hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order. In the latter case, the parties may, if they are able to agree, make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon. In either case i.e., either the action is dismissed or partition and/or accounting is decreed the order is a final one, and may be appealed by any party aggrieved thereby. The second phase commences when it appears that "the parties are unable to agree upon the partition" directed by the court. In that event, partition shall be done for the parties by the court with the assistance of not more than three (3) commissioners. This second stage may well also deal with the rendition of the accounting itself and its approval by the court after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share in the rents and profits of the real estate in question. Such an order is, to be sure, final and appealable.[22]The present rule on the question of finality and appealability of a decision or order decreeing partition is that it is final and appealable.[23]The order of partition is a final determination of the co-ownership over Lot No. 1639 by the parties and the propriety of the partition thereof. Hence, if the present rule were applied, the order not having been appealed or questioned by any of the parties to the case, it has become final and executory and cannot now be disturbed.MesmThe true test to ascertain whether or not an order or a judgment is interlocutory or final is: Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final. The key test to what is interlocutory is when there is something more to be done on the merits of the case.[24]An order for partition is final and not interlocutory and, hence, appealable because it decides the rights of the parties upon the issue submitted.[25]However, this Court notes that the order of partition was issued when the ruling inFuentebella vs. Carrascoso,[26]which held that the order of partition is interlocutory, was controlling. In addition, the reports of the commissioners not having been confirmed by the trial court are not binding.[27]In this case, both the order of partition and the unconfirmed sketch plan are, thus, interlocutory. Nevertheless, where parties do not object to the interlocutory decree, but show by their conduct that they have assented thereto, they cannot thereafter question the decree,[28]especially, where, by reason of their conduct, considerable expense has been incurred in the execution of the commission.[29]Respondents in this case have occupied their respective lots in accordance with the sketch/subdivision plan. They cannot after acquiescing to the order for more than forty (40) years be allowed to question the binding effect thereof.This case is to be distinguished from the order in the action for partition inArcenas vs. Cinco.[30]In that case, the order was clearly interlocutory since it required the parties " to submit the corresponding deed of partition to the Court for its approval." Here, the order appointed two commissioners and directed them merely to approve the sketch plan already existing and tentatively followed by the parties.CalrkyUnder the present rule, the proceedings of the commissioners without being confirmed by the court are not binding upon the parties.[31]However, this rule does not apply in case where the parties themselves actualized the supposedly unconfirmed sketch/subdivision plan. The purpose of court approval is to give effect to the sketch/subdivision plan. In this case, the parties themselves or through their predecessors-in-interest implemented the sketch plan made pursuant to a court order for partition by actually occupying specific portions of Lot No. 1639 in 1952 and continue to do so until the present until this case was filed, clearly, the purpose of the court approval has been met. This statement is not to be taken to mean that confirmation of the commissioners may be dispensed with but only that the parties herein are estopped from raising this question by their own acts of ratification of the supposedly non-binding sketch/subdivision plan.KycalrThe records of the case show that sometime in 1946 there was a prior oral agreement to tentatively partition Lot No. 1639.[32]By virtue of this agreement, the original co-owners occupied specific portions of Lot No. 1639.[33]It was only in 1952 when the petition to subdivide Lot No. 1639 was filed because two of the co-owners, namely Hermogenes Olis and heirs of Pascual Olis, refused to have said lot subdivided and have separate certificates of title. Significantly, after the 1952 proceedings, the parties in this case by themselves and/or through their predecessors-in-interest occupied specific portions of Lot No. 1639 in accordance with the sketch plan. Such possession remained so until this case arose, or about forty (40) years later.From its order in 1952, it can be gleaned that the CFI took notice of the tentative subdivision plan by oral partition of the parties therein. Further, it appears that said court was aware that the parties therein actually took possession of the portions in accordance with the sketch/subdivision plan. With this factual backdrop, said court ordered the partition and appointed two (2) commissioners to approve the tentative sketch/subdivision plan. It would not be unreasonable to presume that the parties therein, having occupied specific portions of Lot No. 1639 in accordance with the sketch/subdivision plan, were aware that it was that same sketch/subdivision plan which would be considered by the commissioners for approval. There is no showing that respondents by themselves or through their predecessors-in-interest raised any objections. On the contrary, the records show that the parties continued their possession of the specific portions of Lot No. 1639 pursuant to the sketch/subdivision plan.KyleIt has been previously held that a co-owner, who, though not a party to a partition accepts the partition allotted to him, and holds and conveys the same in severalty, will not be subsequently permitted to avoid partition.[34]It follows that a party to a partition is also barred from avoiding partition when he has received and held a portion of the subdivided land especially in this case where respondents have enjoyed ownership rights over their share for a long time.Parties to a partition proceeding, who elected to take under partition, and who took possession of the portion allotted to them, are estopped to question title to portion allotted to another party.[35]A person cannot claim both under and against the same instrument.[36]In other words, they accepted the lands awarded them by its provisions, and they cannot accept the decree in part, and repudiate it in part. They must accept all or none.[37]Parties who had received the property assigned to them are precluded from subsequently attacking its validity of any part of it.[38]Here, respondents, by themselves and/or through their predecessors-in-interest, already occupied of the lots in accordance with the sketch plan. This occupation continued until this action was filed. They cannot now be heard to question the possession and ownership of the other co-owners who took exclusive possession of Lot 1639-D also in accordance with the sketch plan.ExsmIn technical estoppel, the party to be estopped must knowingly have acted so as to mislead his adversary, and the adversary must have placed reliance on the action and acted as he would otherwise not have done. Some authorities, however, hold that what is tantamount to estoppel may arise without this reliance on the part of the adversary, and this is called, ratification or election by acceptance of benefits, which arises when a party, knowing that he is not bound by a defective proceeding, and is free to repudiat