Cases Consti Dec 11

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Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

A.M. No. MTJ-10-1770 July 18, 2012(Formerly A.M. OCA IPI No. 10-2255-MTJ)

OFFICE OF ADMINISTRATIVE SERVICES-OFFICE OF THECOURT ADMINISTRATOR, Complainant,

vs.JUDGE IGNACIO B. MACARINE, Municipal Circuit TrialCourt, Gen. Luna, Surigao del Norte, Respondent.

D E C I S I O N

BRION, J.:

The Office of the Court Administrator (OCA) filed the presentadministrative case against Judge Ignacio B. Macarine(respondent) for violation of OCA Circular No. 49-20031 datedMay 20, 2003.

OCA Circular No. 49-2003 requires that all foreign travels ofjudges and court personnel, regardless of the number of days,must be with prior permission from the Court. A travel authoritymust be secured from the OCA Judges must submit the followingrequirements:

(1.) application or letter-request addressed to the CourtAdministrator stating the purpose of the travel abroad;

(2.) application for leave covering the period of the travel abroad,favorably recommended by the Executive Judge; and

(3.) certification from the Statistics Division, Court ManagementOffice, OCA as to the condition of the docket.2

The complete requirements should be submitted to and receivedby the OCA at least two weeks before the intended time of travel.No action shall be taken on requests for travel authority withincomplete requirements.3

Judges and personnel who shall leave the country without travelauthority issued by the OCA shall be subject to disciplinaryaction.4

On August 13, 2009, the respondent wrote then CourtAdministrator, now Associate Justice Jose Portugal Perez,requesting for authority to travel to Hongkong with his family for

the period of September 10 - 14, 2009 where he would celebratehis 65th birthday. The respondent stated that his travel abroadshall be charged to his annual forced leave. However, he did notsubmit the corresponding application for leave. For his failure tosubmit the complete requirements, his request for authority totravel remained unacted upon. The respondent proceeded withhis travel abroad without the required travel authority from theOCA.

On January 28, 2010,5 the respondent was informed by the OCAthat his leave of absence for the period of September 9-15, 2009had been disapproved and his travel considered unauthorized bythe Court. His absences shall not be deducted from his leavecredits but from his salary corresponding to the seven (7) days

that he was absent, pursuant to Section 50 of the Omnibus Ruon Leave.6 The respondent was also required to submit hisexplanation on his failure to comply with OCA Circular No. 42003.

In his letter-explanation dated February 25, 2010, the respondnarrated that his daughter, a nurse working in New Jersey, USgave him a trip to Hongkong as a gift for his 65th birthday. In first week of September 2009, he received a call from his daughthat she had already booked him, together with his wife and twsons, in a hotel in Hongkong from September 13 to 15, 2009. Th

flew in to Manila from Surigao City on September 9, 2009,intending to prepare the necessary papers for his authority totravel at the Supreme Court the following day. However, sensitime constraint and thinking of the futility of completing therequirements before their scheduled flight, he opted not toimmediately complete the requirements and simply went aheawith their travel abroad. He thought of submitting hiscompliance upon his return to Manila. He acknowledged hismistake and regretted his failure to comply with OCA CirculaNo. 49-2003. He promised not to commit the same infractionagain. He further requested for reconsideration of the OCA‘sintended action to deduct his salary corresponding to the seve(7) days that he was absent, instead of charging his absences this leave credits.

In an Evaluation Report dated September 6, 2010, the OCA fouthe respondent guilty of violation of OCA Circular No. 49-200for traveling out of the country without filing the necessaryapplication for leave and without first securing a travel authorfrom the Court. The OCA recommended:

a) this matter be RE-DOCKETED as a regular administrativematter;

b) Judge Ignacio B. Macarine, MCTC, Gen. Luna, Surigao delNorte, be FINED in the amount of P5,000.00 for Violation forCircular No. 49-2003 dated May 20, 2003; and c) the Financia

Management Office, Finance Division, OCA, be DIRECTED toDEDUCT the amount equivalent to the seven (7) days salary o

Judge Ignacio Macarine as a result of his disapproved andunauthorized leave of absence pursuant to Section 50, OmnibuRules on Leave, without deducting his leave credits thereof.[emphases supplied]

True, the right to travel is guaranteed by theConstitution.1âwphi1 However, the exercise of such right is noabsolute. Section 6, Article III of the 1987 Constitution allowsrestrictions on one‘s right to travel provided that such restrictis in the interest of national security, public safety or publichealth as may be provided by law. This, however, should by no

means be construed as limiting the Court‘s inherent power ofadministrative supervision over lower courts. OCA Circular N49-2003 does not restrict but merely regulates, by providingguidelines to be complied by judges and court personnel, beforthey can go on leave to travel abroad. To "restrict" is to restrainprohibit a person from doing something; to "regulate" is to govor direct according to rule.

To ensure management of court dockets and to avoid disruptioin the administration of justice, OCA Circular No. 49-2003requires a judge who wishes to travel abroad to submit, togethwith his application for leave of absence duly recommended foapproval by his Executive Judge, a certification from the StatisDivision, Court Management Office of the OCA, as to the



condition of his docket, based on his Certificate of Service for themonth immediately preceding the date of his intended travel, thathe has decided and resolved all cases or incidents within three (3)months from date of submission, pursuant to Section 15(1) and(2), Article VIII of the 1987 Constitution.7

For traveling abroad without having been officially allowed bythe Court, the respondent is guilty of violation of OCA CircularNo. 49-2003. Under Section 9(4), Rule 140 of the Revised Rulesof Court, violation of Supreme Court directives and circular isconsidered a less serious charge and, therefore, punishable by

suspension from office without salary and other benefits for notless than one (1) month nor more than three (3) months; or a fineof more than P10,000.00 but not exceeding P20,000.00.8

Section 53, Rule IV of the Revised Rules on Administrative Casesin the Civil Service grants the disciplining authority thediscretion to consider mitigating circumstances in the impositionof the proper penalty. The Court had in several instancesrefrained from imposing the actual penalties in the presence ofmitigating facts, such as the employee‘s length of service,acknowledgement of his or her infractions and feelings of remorsefor the same, advanced age, family circumstances, and otherhumanitarian and equitable considerations.

In the present case, the respondent, after learning that hisdaughter had already booked him and his family in a hotel inHongkong, immediately went to Manila to secure his travelauthority from the Court. However, with the short period of timefrom their arrival in Manila on September 9, 2009 up to the timeof their booking in Hongkong from September 13 to 15, 2009, hewas pressed for time and opted not to complete the requiredtravel authority, with the intention of securing one after histravel. The respondent regretted his failure to comply with therequirements of OCA Circular No. 49-2003. He acknowledged hismistake and promised not to commit the same infraction in thefuture.

We consider the outlined circumstances as mitigating. Followingjudicial precedents, the respondent deserves some degree ofleniency in imposing upon him the appropriate penalty.

WHEREFORE, respondent Judge Ignacio B. Macarine, MunicipalCircuit Trial Court, Gen. Luna, Surigao del Norte, is hereby giventhe ADMONITION that he acted irresponsibly when he optednot to immediately secure a travel authority and is saved onlyfrom the full force that his violation carries by the attendantmitigating circumstances. He is also WARNED that thecommission of a similar violation in the future will merit a moresevere penalty. The recommendation of the Office of the CourtAdministration that his absences, which were unauthorized, shall

not be deducted from his leave credits but from his salary ishereby APPROVED.

SO ORDERED.

LEAVE DIVISION V HEUSDENS

This case stemmed from the leave application for foreign travel[1]sent through mail by Wilma Salvacion P. Heusdens (respondent),Staff Clerk IV of the Municipal Trial Court in Cities, Tagum City,

Davao del Norte.Records disclose that on July 10, 2009, the Employees LeaveDivision, Office of Administrative Services, Office of the CourtAdministrator (OCA), received respondent‘s leave application for

foreign travel from September 11, 2009 to October 11, 2009.Respondent left for abroad without waiting for the result of heapplication. It turned out that no travel authority was issued iher favor because she was not cleared of all her accountabilitieevidenced by the Supreme Court Certificate of Clearance.Respondent reported back to work on October 19, 2009.[2]

The OCA, in its Memorandum[3] dated November 26, 20recommended the disapproval of respondent‘s leave applicatioIt further advised that respondent be directed to make a writtexplanation of her failure to secure authority to travel abroad i

violation of OCA Circular No. 49-2003. On December 7, 2009then Chief Justice Reynato S. Puno approved the OCArecommendation.

Accordingly, in a letter[4] dated January 6, 2010, OCA DeputyCourt Administrator Nimfa C. Vilches informed respondent thher leave application was disapproved and her travel wasconsidered unauthorized. Respondent was likewise directed explain within fifteen (15) days from notice her failure to compwith the OCA circular.

In her Comment[5] dated February 2, 2010, respondent admitthaving travelled overseas without the required travel authorityShe explained that it was not her intention to violate the rulesshe, in fact, mailed her leave application which was approved bher superior, Judge Arlene Lirag-Palabrica, as early as June 26,2009. She honestly believed that her leave application would eventually approved by the Court.

The OCA, in its Report[6] dated March 8, 2011, found respondto have violated OCA Circular No. 49-2003 for failing to securthe approval of her application for travel authority.

Hence, the OCA recommended that the administrativecomplaint be re-docketed as a regular administrative matter anthat respondent be deemed guilty for violation of OCA CirculaNo. 49-2003 and be reprimanded with a warning that a repetit

of the same or similar offense in the future would be dealt withmore severely.

OCA Circular No. 49-2003 (B) specifically requires that:B. Vacation Leave to be Spent Abroad.

Pursuant to the resolution in A.M. No. 99-12-08-SC dated 6November 2000,[7] all foreign travels of judges and courtpersonnel, regardless of the number of days, must be with priopermission from the Supreme Court through the Chief Justiceand the Chairmen of the Divisions.

1. Judges and court personnel who wish to travel abroad must

secure a travel authority from the Office of the CourtAdministrator. The judge or court personnel must submit thefollowing:

(a) For Judges

x x x

(b) For Court Personnel:

• application or letter-request addressed to the CourtAdministrator stating the purpose of the travel abroad;





Inherent limitations on the right to travel are those that naturallyemanate from the source. These are very basic and are built-inwith the power. An example of such inherent limitation is thepower of the trial courts to prohibit persons charged with a crimeto leave the country.[13] In such a case, permission of the court isnecessary. Another is the inherent power of the legislativedepartment to conduct a congressional inquiry in aid oflegislation. In the exercise of legislative inquiry, Congress has thepower to issue a subpoena and subpoena duces tecum to awitness in any part of the country, signed by the chairperson oracting chairperson and the Speaker or acting Speaker of the

House;[14] or in the case of the Senate, signed by its Chairman orin his absence by the Acting Chairman, and approved by theSenate President.[15]

Supreme Court has administrative supervision over all courts andthe personnel thereof

With respect to the power of the Court, Section 5 (6), ArticleVIII of the 1987 Constitution provides that the ―Supreme Courtshall have administrative supervision over all courts and thepersonnel thereof.‖ This provision empowers the Court to overseeall matters relating to the effective supervision and managementof all courts and personnel under it. Recognizing this mandate,Memorandum Circular No. 26 of the Office of the President,dated July 31, 1986,[16] considers the Supreme Court exempt andwith authority to promulgate its own rules and regulations onforeign travels. Thus, the Court came out with OCA Circular No.49-2003 (B).

Where a person joins the Judiciary or the government in general,he or she swears to faithfully adhere to, and abide with, the lawand the corresponding office rules and regulations. These rulesand regulations, to which one submits himself or herself, havebeen issued to guide the government officers and employees inthe efficient performance of their obligations. When one becomesa public servant, he or she assumes certain duties with their

concomitant responsibilities and gives up some rights like theabsolute right to travel so that public service would not beprejudiced.

As earlier stated, with respect to members and employees of theJudiciary, the Court issued OCA Circular No. 49-2003 to regulatetheir foreign travel in an unofficial capacity. Such regulation isnecessary for the orderly administration of justice. If judges andcourt personnel can go on leave and travel abroad at will andwithout restrictions or regulations, there could be a disruption inthe administration of justice. A situation where the employees goon mass leave and travel together, despite the fact that theirinvaluable services are urgently needed, could possibly arise. For

said reason, members and employees of the Judiciary cannot justinvoke and demand their right to travel.

To permit such unrestricted freedom can result in disorder, if notchaos, in the Judiciary and the society as well. In a situationwhere there is a delay in the dispensation of justice, litigants canget disappointed and disheartened. If their expectations arefrustrated, they may take the law into their own hands whichresults in public disorder undermining public safety. In thislimited sense, it can even be considered that the restriction orregulation of a court personnel‘s right to travel is a concern forpublic safety, one of the exceptions to the non-impairment ofone‘s constitutional right to travel.

Given the exacting standard expected from each individual caupon to serve in the Judiciary, it is imperative that every courtemployee comply with the travel notification and authorityrequirements as mandated by OCA Circular No. 49-2003. Acourt employee who plans to travel abroad must file his leaveapplication prior to his intended date of travel with sufficienttime allotted for his application to be processed and approvedfirst by the Court. He cannot leave the country without hisapplication being approved, much less assume that his leaveapplication would be favorably acted upon. In the case at benrespondent should have exercised prudence and asked for the

status of her leave application before leaving for abroad.

Indeed, under the Omnibus Rules Implementing Book V ofExecutive Order (EO) No. 292, a leave application should beacted upon within five (5) working days after its receipt,otherwise the leave application shall be deemed approved.Section 49, Rule XVI of the Omnibus Rules on Leave reads:

SEC. 49. Period within which to act on leave applications. – Whenever the application for leave of absence, including termleave, is not acted upon by the head of agency or his dulyauthorized representative within five (5) working days afterreceipt thereof, the application for leave of absence shall bedeemed approved.

Applying this provision, the Court held in the case ofCommission on Appointments v. Paler[17] that an employeecould not be considered absent without leave since hisapplication was deemed approved. In said case, there was noaction on his application within five (5) working days fromreceipt thereof.[18]

The ruling in Paler, however, is not squarely applicable in thiscase. First, the employee in said case was governed by CSC Ruonly. In the case of respondent, like the others who are servinthe Judiciary, she is governed not only by CSC Rules but also bOCA Circular No. 49-2003 which imposes guidelines on reque

for travel abroad for judges and court personnel. Second, in Pathe employee submitted his leave application with completerequirements before his intended travel date. No additionalrequirement was asked to be filed. In the case of respondent, ssubmitted her leave application but did not fully comply withclearance and accountability requirements enumerated in OCACircular No. 49-2003. Third, in Paler, there was no approval ordisapproval of his application within 5 working days from thesubmission of the requirements. In this case, there was nosubmission of the clearance requirements and, hence, the leaveapplication could not have been favorably acted upon.

SCSLA membership is voluntary

Regarding the requirement of the OCA that an employee mustalso seek clearance from the SCSLA, the Court finds nothingimproper in it. OCA is not enforcing the collection of a loanextended to such employee.[19] Although SCSLA is a privateentity, it cannot be denied that its functions and operations arinextricably connected with the Court. First, SCSLA wasprimarily established as a savings vehicle for Supreme Court alower court employees. The membership, which is voluntary, iopen only to Supreme Court justices, officials, and employeeswith permanent, coterminous, or casual appointment, as well to first and second-level court judges and their personnel.[20]eligible employee who applies for membership with SCSLA msubmit, together with his application, his latest appointment



papers issued by the Supreme Court.[21] Second, when anemployee-member applies for a SCSLA loan, he or she is asked toauthorize the Supreme Court payroll office to deduct the amountdue and remit it to SCSLA. Third, the employee-borrowerlikewise undertakes to assign in favor of SCSLA, in case of non-payment, his capital deposit, including earned dividends, allmonies and monetary benefits due or would be due from hisoffice, Government Service Insurance System or from anygovernment office or other sources, to answer the remainingbalance of his loan.[22] Fourth, every employee-borrower mustprocure SCSLA members to sign as co-makers for the loan[23]

and in case of leave applications that would require theprocessing of a Supreme Court clearance, another co-maker‘sundertaking would be needed.

The Court stresses that it is not sanctioning respondent for goingabroad with an unpaid debt but for failing to comply with therequirements laid down by the office of which she is an employee.When respondent joined the Judiciary and volunteered to join theSCSLA, she agreed to follow the requirements and regulations setforth by both offices. When she applied for a loan, she was notforced or coerced to accomplish the requirements. Everythingwas of her own volition.

In this regard, having elected to become a member of the SCSLA,respondent voluntarily and knowingly committed herself tohonor these undertakings. By accomplishing and submitting thesaid undertakings, respondent has clearly agreed to thelimitations that would probably affect her constitutional right totravel. By her non-compliance with the requirement, it can besaid that she has waived, if not constricted, her right. Anemployee cannot be allowed to enjoy the benefits and privilegesof SCSLA membership and at the same time be exempted fromher voluntary obligations and undertakings.

A judiciary employee who leaves for abroad without authoritymust be prepared to face the consequences

Lest it be misunderstood, a judge or a member of the Judiciary,who is not being restricted by a criminal court or any otheragency pursuant to any statutory limitation, can leave for abroadwithout permission but he or she must be prepared to face theconsequences for his or her violation of the Court‘s rules andregulations. Stated otherwise, he or she should expect to besubjected to a disciplinary action. In the past, the Court was nothesitant to impose the appropriate sanctions and penalties.

In Office of the Administrative Services (OAS)-Office of theCourt Administrator (OCA) v. Calacal,[24] a utility worker of theMetropolitan Trial Court was found guilty of violating OCA

Circular No. 49-2003 for going overseas without the requiredtravel authority and was reprimanded and warned that arepetition of the same or similar offense would be penalized moreseverely. In that case, the Court stressed that unawareness of thecircular was not an excuse from non-compliance therewith.[25]

In Reyes v. Bautista,[26] a court stenographer was found guilty ofviolation of OCA Circular No. 49-2003 for traveling abroadwithout securing the necessary permission for foreign travel. Shewas also found guilty of dishonesty when she indicated in herapplication that her leave would be spent in the Philippines,when in truth it was spent abroad. Because of the employee‘snumerous infractions, she was dismissed from the service withforfeiture of all benefits and privileges, except accrued leave

credits, with prejudice to re-employment in any branch orinstrumentality of the government, including government ownor controlled corporations.

In Concerned Employees of the Municipal Trial Court ofMeycauayan, Bulacan v. Paguio-Bacani,[27] a branch clerk ofcourt of the Municipal Trial Court of Meycauayan, Bulacan, wfound guilty of dishonesty for falsifying her Daily Time Recordand leaving the country without the requisite travel authorityShe was suspended from the service for one (1) year without pwith a warning that a repetition of the same or similar offense

would be dealt with more severely.

Following the Uniform Rules on Administrative Cases in theCivil Service, the Court considers a violation of reasonable offirules and regulations as a light offense and punishable withreprimand on the first offense; suspension for one to thirty dayon the second; and dismissal from the service on the thirdinfraction. Considering that this appears to be respondent‘s fiinfraction, the OCA recommended that she be penalized with reprimand and warned that a repetition of the same or similaroffense would be dealt with more severely.

The Court, nonetheless, takes note of the belated action (4months) of the Leave Division on her application for leave whishe submitted two months before her intended departure dateThe Leave Division should have acted on the application,favorably or unfavorably, before the intended date with sufficitime to communicate it to the applicant. If an applicant has ncomplied with the requirements, the Leave Division should dethe same and inform him or her of the adverse action. Asrespondent was not informed of the denial of her applicationwithin a reasonable time, respondent should only be admonish

WHEREFORE, respondent Wilma Salvacion P. Heusdens, ClIV Municipal Trial Court in Cities, Tagum City, is hereby

ADMONISHED for traveling abroad without any travel authoin violation of OCA Circular No. 49-2003, with a WARNINGthat a repetition of the same or similar offense would be dealtwith more severely.

The Leave Division, OAS-OCA, is hereby directed to act uponapplications for travel abroad at least five (5) working days bethe intended date of departure.

IMELDA R. MARCOS, petitioner,vs.

THE HONORABLE SANDIGANBAYAN (First Division) athe PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

This is a petition for certiorari to set aside as arbitrary and ingrave abuse of discretion resolutions of the Sandiganbayan's FDivision denying petitioner's motion for leave to travel abroadmedical treatment.

Petitioner, former First Lady and widow of former PresidentFerdinand E. Marcos, is the defendant in several criminal caseviolations of the Anti Graft and Corrupt Practices Act (R.A. N3019) now pending in the Sandiganbayan and in the regularcourts. In two of these cases, i.e., Criminal Case Nos. 17450 an17453, petitioner was found guilty by the First Division of the



Sandiganbayan of violating § 3(g) of the Anti Graft and CorruptPractices Act (R.A. No. 3019) and was sentenced to suffer in eachcase imprisonment for an indeterminate period of 9 years and 1day as minimum to 12 years and 10 days as maximum, withperpetual disqualification from public office. Petitioner filed amotion for reconsideration, which is pending resolution in theSandiganbayan.

After her conviction in the two cases petitioner filed on December24, 1993 a "Motion for Leave to Travel Abroad" to seek diagnostictests and treatment by practitioners of oriental medicine in the

People's Republic of China allegedly because of "a serious and lifethreatening medical condition" requiring facilities not available inthe Philippines. Petitioner's motion was denied by theSandiganbayan for failure of petitioner to give notice to theprosecution and because the time asked (December 29, 1993) wastoo close for the court to inform itself of the basis of the motion.

On December 29, 1993, petitioner filed in another case (CriminalCase No. 18742) 1 an "Urgent Ex-Parte Motion for Permission toTravel Abroad" to undergo diagnosis and treatment in China. Themotion was supported by Ambulatory BP Reports, NuclearMedicine Reports and Computed Tomography Scan Resultsprepared by her physician and cardiologist, Dr. Roberto V.Anastacio, and other doctors at the Makati Medical Center.

On January 4, 1994, petitioner filed In Criminal Case Nos. 17450and 17453 another "Motion for Leave to Travel Abroad," to placesincluding the United States and Europe, "if necessary," fortreatment of "hypertensive heart disease, uncontrolled anginapectoris, and anterior myocardial infarction." It was alleged thatthe tests needed were not available in the Philippines.

The Chairman of respondent court's First Division, PresidingJustice Francis E. Garchitorena, contacted Dr. Gregorio B.Patacsil, Officer-in-Charge of the Philippine Heart Center, andlater wrote him a letter, 2 asking for "expert opinion on coronarymedicine," particularly on the following questions:

1. Is [petitioner's] condition life-threatening?

2. What are the "sophisticated biochemical tests" necessary(not merely desirable), if any are needed at all, to ascertain andremedy her condition?

3. Are these tests available here?

4. Is the present level of expertise in the Philippinesadequate to respond to her condition?

The Presidential Commission on Good Government filed a

manifestation interposing no objection to petitioner's motions"primarily on humanitarian grounds provided that the accusedcomply with the terms and conditions for travel as may beimposed" by respondent court. The Office of the SpecialProsecutor, 3 on the other hand, opposed the motions, contendingthat:

1. the absolute necessity to go abroad was notdemonstrated;

2. no statement was made by the accused that medicalequipment and facilities here were "sorrily" inadequate for theneeds of the movant;

3. the conviction of the accused in Criminal Cases No.17450 and No. 17453 might motivate her not to return if she weto be authorized to leave the country.

On January 7, 1994 hearing was held on petitioner's motion,during which petitioner presented Dr. Roberto V. Anastacio.After the hearing, the Sandiganbayan informed the parties thacopy of petitioner's first motion and its supporting documentshad been sent to Dr. Patacsil for study and comment by acommittee of cardiologists.

After consulting Dr. Anastacio, petitioner's counsel asked thecourt to include among the questions to the committee thefollowing: "Without the Biochemical test, may proper treatmebe administered to Mrs. Marcos?" Petitioner's counsel also askthe court to include the list of medicine being taken by petitioas part of the study. These requests were granted by the court

Thereafter, a "Supplement to the Motion for Leave Abroad" wafiled on January 17, 1994 together with additional documents,consisting of the following:

(a) a faxed letter from Dr. Denton A. Cooley of the TexasHeart Institute dated January 11, 1994;

(b) a letter dated May 9, 1990 from David B. Case, M.D.addressed to lawyer Gerry Spence;

(c) a letter dated May 23, 1990 from Dr. Vincent De Quatof the University of Southern California Hypertension DiagnoLaboratory;

(d) two letters, both dated January 3, 1994 from China, ofrom the Tranjin Medical College, and another without letterhfrom one F.S. Tsui, both letters offering their facilities fordiagnosis and treatment of hypertension and related illnessthrough the "Classic Art of Chinese Medical Technology."

On January 20, 1994, the Sandiganbayan received by FAXmachine the report of the committee, 4 containing findings whwere contrary to the conclusions of petitioner's physicians. ThPresiding Justice immediately informed by phone petitioner'scounsel, Attorneys Vicente D. Millora and Manuel M. Lazaro, the committee's report. Atty. Lazaro requested that a copy of treport be sent to him by FAX machine, while Atty. Millora gotcopy personally from the court.

On January 26, 1994, Dr. Ramon F. Abarquez, Jr. was heard bycourt on his committee's report. Present at the hearing were thtwo lawyers of petitioner and Dr. Anastacio.

On February 11, 1994, the court accepted petitioner's"Supplemental Motion to Travel Abroad" and heard the rebutttestimony of Dr. Roberto V. Anastacio, as well as the testimonDr. Jorge Garcia, heart surgeon from Washington, D.C., insupport of petitioner's motion to travel abroad.

On February 18, 1994 the court denied petitioner's motions. Thdispositive portion of its resolution reads:

IN VIEW OF THE FOREGOING, it is the judgment of this Cothat the imperative necessity of the accused to undertake a tripabroad for diagnosis and treatment has not been established anfor this reason DENIES the various motions of accused ImeldaMarcos to leave for abroad.



SO ORDERED.

Petitioner filed a motion for reconsideration and a "Motion toAdmit Clinical Summary and to Resolve Motion forReconsideration." The Clinical Summary was a recent medicalreport on petitioner's condition after she had undergone anothermedical examination at the Philippine Heart Center 5 Petitioneralso filed a "Motion to Admit Recognizance in Support of, and toResolve Soonest, the Motion for Reconsideration to TravelAbroad." Attached to the motion were letters of Vice President

Joseph E. Estrada offering to be guarantor for the return ofpetitioner and those of twenty four members of the House ofRepresentatives 6 requesting the court to allow petitioner totravel abroad.

In a resolution dated April 19, 1994, respondent court deniedpetitioner's motion for reconsideration for lack of merit even as itexpressed disapproval of the intervention of the Vice Presidentand the twenty four congressmen and warned them andpetitioner's counsel, Atty. Rodolfo U. Jimenez, that "repetition ofany attempt to influence the resolutions, decisions or orders orany judicial action of [respondent court] will be responded toappropriately."

Hence, this petition for certiorari to set aside the resolutionsdated February 18, 1994 and April 19, 1994 of the First Division ofthe Sandiganbayan on the ground that they were issued withgrave abuse of discretion, amounting to lack or in excess ofjurisdiction. Petitioner claims that

1. [The Sandiganbayan] arbitrarily disregarded ormisinterpreted the testimonies, medical findings andrecommendations of petitioner's attending physicians and reliedon or substituted them with the academic views of Dr. Abarquezand the Committee, who never examined or treated personallythe petitioner, and erroneously concluded "that the necessity fortrip abroad by the accused for diagnosis and treatment has not

been established";

2. It adopted an unusual and unorthodox conduct of trialas demonstrated by the following: (a) it motu propio contacted athird party asking the latter to give an opinion on petitioner'smotion and medical findings; (b) it unusually participated in theexamination of petitioner's witnesses; (c) thru its PJ, it presentedas own witness; (d) it requested the formation of a committee tostudy the evidence presented; (e) it did not decide the case on thebasis of the evidence presented; (f) it decided on the basis ofevidence (academic) it sought;

3. It failed to resolve that, in the clash between basic

constitutional rights of the petitioner and the authority of thecourt over the petitioner, the basic constitutional rights mustprevail;

4(a). It considered the conviction of petitioner in two (2)criminal cases which are pending reconsideration as factors indenying the rights of petitioner to life, health and liberty anddepriving the penumbras of such right to give life and substance;

4(b). Respondent court violated the cluster of rights of"personhood", "privacy" or "personal liberty".

5. It perceived that there is no "imperative necessity" forpetitioner to avail of medical examination and treatment abroad

not withstanding that such perception/conclusion cannotconstitute a cause to deny or deprive petitioner of herconstitutional rights, nor can it refute the medical findings ofpetitioner's attending physicians.

Called upon to comment, the Solicitor General, in representatof the prosecution in the criminal cases, contends thatrespondent court acted properly in seeking the advice of mediexperts in regard to petitioner's motion to travel; that in anyevent petitioner is estopped from questioning the referral of hemedical condition to other experts by agreeing to submit

additional questions for their consideration; and that the rightlife is not absolute but must be balanced by the State's right toprosecute and enforce the judgments of its courts, and thatpetitioner's conviction in two cases is relevant along with"humanitarian and equity" considerations.

The question for decision is whether the Sandiganbayan graveabused its discretion in denying petitioner's request to travelabroad for medical treatment. After due consideration of theparties' arguments, we find that it did not.

Respondent court had to seek expert opinion because petitionmotion was based on the advice of her physician. The court conot be expected to just accept the opinion of petitioner'sphysician in resolving her request for permission to travel. Thesubject lay beyond its competence and since the grant of therequest depended on the verification of the claim that petitionwas suffering from a medical condition that was alleged to beserious and life threatening, the respondent court, we think,followed the only prudent course available of seeking the opinof other specialists in the field.

Indeed, when even in their own field of expertise (law) courtsallowed to invite amici curiae to shed light on recondite pointslaw, there is no reason for denying them assistance on othersubjects. Presiding Justice Garchitorena's letter to Dr. Patacsilnotable in this regard for its sedulous concern for "greater need

for information and expert advise" to the end that respondentcourt may be able to determine "whether or not it is necessaryurgent for petitioner to travel abroad."

What would be objectionable would be if respondent courtobtained information without disclosing its source to the partand used it in deciding a case against them. Then the partiescould justifiably complain that their right to due process has bviolated. But, in this case, everything was on the level, with thparties taking part in the proceedings of the court.

At all events if petitioner did not agree to the procedure adoptby the court, her counsel should have objected when informed

the court on January 7, 1994 that it had referred Dr. Anastacio'report to the Philippine Heart Center for advice and opinion.Counsel did not object. Instead, after consulting Dr. Anastaciorequested the court to submit additional questions for referralthe Philippine Heart Center and later took part in crossexamining Dr. Abarquez, Jr. when the latter testified. Petitionthus estopped from questioning what she now calls the "unusuand unorthodox" manner of resolving her request for permissioto travel abroad.

Now, if the respondent court disregarded the findings andrecommendations of petitioner's physician, it was because in lof the report of the panel of experts which reviewed the findinand recommendations of petitioner's physicians, petitioner fai



to prove the necessity for a trip abroad. It should be emphasizedthat considering the fact that she is facing charges before thecourts in several cases, in two of which she was convictedalthough the decision is still pending reconsideration, petitionerdid not have an absolute right to leave the country and theburden was on her to prove that because of danger to health if notto her life there was necessity to seek medical treatment inforeign countries. 7

Nor is there warrant for the claim that respondent court actedarbitrarily in disregarding the findings of petitioner's physicians

and relying on the opinion of specialists from the PhilippineHeart Center because the latter did not personally examine herand for that reason their opinion is allegedly "academic." Thequestion raised by petitioner's motion was not whetherpetitioner was suffering from a serious and life threateningmedical condition. Rather the question before the Sandiganbayanwas whether on the basis of reports attached to the motions fortravel there was evidence to show that she was suffering fromsuch ailments (i.e., coronary artery disease and labilehypertension) and there was need for diagnostic tests whichcould only be performed abroad. Consequently, it wasunnecessary for the Philippine Heart Center's specialists toexamine the petitioner personally. Given the findings ofpetitioner's own physicians, they found that petitioner had notbeen shown to be suffering from coronary artery disease anduncontrolled high blood pressure (labile hypertension).

The claim that petitioner is suffering from a life threateningmedical condition is based on a letter dated November 4, 1993 ofDr. Roberto V. Anastacio, cardiologist at the Makati MedicalCenter, to Dr. Jorge M. Garcia, heart surgeon of the WashingtonHeart Institute at Washington D.C., recommending diagnostictests abroad for petitioner. In his letter (marked Annex B ofpetitioner's first "Motion for Leave to Travel Abroad") Dr.Anastacio claimed that petitioner complained of chest pains; thatshe had an uncontrolled high blood pressure with "a spread of200/100-100/70;" that the ambulatory blood pressure monitoring

device showed her highest systolic BP to be from 184 to 204mmHg at 6 P.M., 1:35 A.M. and 3 A.M., and her highest diastolicpressure to be 120 mmHg; that an Electrocardiogram indicated amyocardial infarction; that an Exercise-HexaMibi Tc-99mmyocardial perfusion imaging showed an "abnormal myorcardialinjury in the anterior region." Dr. Anastacio concluded:

Definitely, we have established that Mrs. Marcos is suffering froma dangerous level of rises in blood pressure provoked by high levelof emotional stress and now complicated with a strong evidenceof myocardial injury.

Her significant family history of hypertension in her father and

siblings (eldest sister and brother) and that indeed two of themhave experienced sudden cardiac death as complicatingmanifestations of uncontrolled high blood pressure of this typeplace this patient in the high risk category of sudden cardiacdeath. (Emphasis added)

He recommended:

Definitely, Mrs. Marcos should undergo immediate studies[abroad] to define the following:

1. To investigate invasively (Coronary Arteriogram) tocorrelate the severity of coronary obstruction and the recent

development of myocardial infarction in relation to suddencardiac death.

2. To do biochemical studies at the same time e.g.Continuous-Serial Vasopressine-Arginine and Catecholaminelevel determination in relation with her uncontrolled high,dangerous level of high blood pressure not only in thestratification of her "Sudden Death" risk staging but likewise,equally important is the control of her uncontrolled high bloodpressure.

3. The observed sensitiveness to the drugs administeredmakes drug therapy risky without a concomittant closemonitoring of the hemodynamic and biochemical parameterswhich will help avert a possible iatrogenic, fatal cardiovasculaevent.

Based on these findings, Dr. Roman F. Abarquez, Jr., Dr.Homobono B. Calleja and Dr. Romeo A. Divinagracia, howeverfound the diagnosis of "definite coronary artery disease" to be"questionable" for the following reasons:

1) The location and character of the chest pain (sharp plasting for a few seconds left mid axillary and not related toeffort) is not the common presentation of pain due to coronaryartery disease (angina pectoris).

2) The Stress Test done during the Thallium Scan wasadequate (maximum predicted heart rate of 106%) and yet wanegative for ischemia.

3) The Thallium Myocardial imaging (Nuclear scan)showed only a small questionable perfusion defect on the antewall. It can also be considered as a false positive finding due tosoft tissue artifacts as mentioned in the report. (Emphasis add

In fact the finding that petitioner did not have ischemia 8 andthat there was only a small perfusion defect on the anterior wa

which could be considered a "false positive finding" is based onpetitioner's own nuclear medical report. 9 prepared by theMakati Medical Center, which contains the followingconclusions:

CONCLUSIONS: ABNORMAL MYOCARDIAL PERFUSIONIMAGING. EVIDENCE FOR PRIOR MYOCARDIAL INJURYTHE ANTERIOR REGION. THERE WAS NO EVIDENCE FOSTRESS INDUCED MYOCARDIAL ISCHEMIA.

ALTHOUGH THESE FINDINGS ARE SUGGESTIVE OFCORONARY ARTERY DISEASE, PHOTON ATTENUATIONSECONDARY TO SOFT TISSUE ARTIFACTS CAN BE

EXCLUDED.

As to the ambulatory blood pressure monitor reports, theAbarquez panel noted:

The diagnosis of hypertensive heart disease is questionable. MMarcos has transient (labile) hypertension. In the ambulatorymonitoring records — there were only 2 transient rises ofelevated systolic pressure and 3 episodes of elevated diastolicpressure. 5 episodes of transient systolic BP elevation and 5episodes of transient elevated diastolic pressure occurred in th2nd ambulatory recording. The patient did not submit a diaryduring both occasions when her ambulatory BP recording was





election for a seat in the House of Representative and won. It maybe assumed that she waged an arduous political campaign butapparently is none the worse for it.

Considering the foregoing we cannot say that respondent courttrifled with petitioner's constitutionally guaranteed right to life,health and liberty. What petitioner denounces as the "unusualand unorthodox conduct of the trial" by the court's PresidingJustice owed more, it would seem, from the latter's robust andrather active personality rather than to any ill motive or hostilityhe entertained toward petitioner, the latter's counsel or her

witnesses. It is matter of record that on three different occasions,petitioner had been permitted to travel abroad. But her laterconviction in two cases dictated the need for greater caution. Tobe sure, conviction is not yet final view of a motion forreconsideration filed by petitioner. But a person's right to travel issubject to the usual contraints imposed by the very necessity ofsafeguarding the system of justice. In such cases, whether theaccused should be permitted to leave the jurisdiction forhumanitarian reason is a matter of the court's sound discretion.

The active intervention of respondent Presiding Justice in thetrial the case was justified by the fact that the subject with whichthe court was dealing was a highly technical one and he wantedto clarify for himself a number of medical question. That a judgehas the power — if not indeed a duty — to do this teaching ofPeople v. Obngayan; 11

There are obviously certain rights to the trier of facts due to thenature of (a judge's) function. Among these is the right toquestion a witness with a view to satisfying his mind upon amaterial point which present itself during the trial as to thecredibility of such witness.

This Court quoted the following from Justice Labrador's opinionVentura v. Judge Yatco: 12

While judges should as much as possible refrain from showing

partiality to one party and hostility to another, it does not meanthat a trial judge should keep mum throughout the trial and allowparties to ask the questions that they desire, on issues which theythink are the important issues, when the former are improper andthe latter, immaterial. If trials are to be expedited, judges musttake a leading part therein, by directing counsel to submit theevidence on the facts in the dispute by asking clarifyingquestions, and by showing an interest in a fast and fair trial.Judges are not mere referees like those of a boxing bout, only towatch and decide the result of a game; they should have as muchinterest as counsel in the orderly and expeditious presentation ofevidence, calling attention of counsel to point at issue that areoverlooked, directing them to ask the question that would elicit

the fact on the issues involved, clarifying ambiguous remarks bywitnesses, etc. Unless they take an active part in trials in theabove form and manner, and allow counsel to ask questionswhether pertinent or impertinent, material or immaterial, thespeedy administration of justice which is the aim of theGovernment and of the people cannot be attained. Counselshould, therefore, not resent any interest that the judge takes inthe conduct of the trial, they should be glad that a trial judgetakes such interest and help in the determination of truth.

The active participation of respondent court in examiningpetitioner's witnesses in the case merely indicated the court'sdeep concern with the truth of petitioner's medical condition.

What perhaps should have been done was for petitioner torequest an examination of her medical condition by a joint teaof cardiologist and other medical experts instead of having thefindings of her physician reviewed by the other specialists. A jinvestigation will have the advantage of not being undulyadversarial since the purpose is the common objective of arriviat a consensus among the experts.

It is not late for the petitioner to ask for this. She can file anothmotion before the Sandiganbayan. This observation is madebecause after the petitioner in the case had been filed, petition

filed a motion for leave to travel, this time on the ground that sis suffering from a difficult type of glaucoma which threatens tmake her blind. Her motion is supported by a medical certificaof Dr. Manuel B. Agulto, opthalmologist and glaucoma expert,who recommends that petitioner see Dr. Richard J. Simmons oBoston, Massachusetts, and avail herself of his "internationallyrenowned expertise and recognized authority in this particuladifficult glaucoma type." 13 Dr. Agulto's certificate states:

This certifies that above patient has been treated by theundersigned by since 1980 for Low Tension Glaucoma which winitially diagnosed by Richard J. Simmons, M.D. of HarvadMedical School and New England Glaucoma ResearchFoundation of Boston, Massachussetts.

Since then the patient has been monitored closely to preventirreversible visual field and acuity loss. Lately we have noted aprogression of her visual field changes.

Latest pertinent clinical findings (as of April 19, 1994) include following:

Corrected Vision: 20/20, Jaeger 1Automated Visual field: positive paracentral depression, botheyes (April 11, 1994, copies of result appended)Tensions: (Diurnal Range) 13-15mm Hg, right eye13-16mm Hg, left eye

Disc: Cupping of 0.6-0.7, both eyes

Remarks:

We suggest that the patient see her primary eye physician inBoston so as to avail herself of his internationally renownedexpertise and recognized authority in this particularly difficulglaucoma type.

Considering the irreversible nature of glaucoma blindness anddocumented progression of her field changes plus additional astrong clinical evidence of the unrelenting course of visual losswas recently documented in a younger brother and patient,

Alfredo T. Romualdez, who was recently declared legally blindfrom the same familial glaucoma, we urge Mrs. Marcos who ismuch older and therefore at greater risk, to consult immediateSimmons so as to delay if not prevent the onset of very real andabsolute blindness.

This motion should be addressed to the Sandiganbayan not onbecause whether petitioner should be allowed to leave thecountry is its primary concern but also because the determinatof petitioner's eye condition is question of fact to be made in thfirst instance by the Sandiganbayan. The court should order a

joint examination of petitioner's eye condition and resolve hermotion accordingly.



WHEREFORE, the petitioner is DISMISSED without prejudiceto the filling of another motion for leave to travel abroad, shouldpetitioner still desire, based on her heart condition. In such anevent the determination of her medical condition should be madeby joint panel of medical specialists recommended by both theaccused and the prosecution.

Petitioner's motion for leave to travel for medical treatment of heralleged failing eyesight is hereby referred to the Sandiganbayanwith directive to the latter to appoint a joint panel of eyespecialists as outlined above.

SO ORDERED.

PASTOR DIONISIO V. AUSTRIA, petitioner, vs. HON.NATIONAL LABOR RELATIONS COMMISSION (FourthDivision), CEBU CITY, CENTRAL PHILIPPINE UNIONMISSION CORPORATION OF THE SEVENTH-DAYADVENTIST, ELDER HECTOR V. GAYARES, PASTORSREUBEN MORALDE, OSCAR L. ALOLOR, WILLIAM U.DONATO, JOEL WALES, ELY SACAY, GIDEON BUHAT,ISACHAR GARSULA, ELISEO DOBLE, PROFIRIO BALACY,DAVID RODRIGO, LORETO MAYPA, MR. RUFO GASAPO,MR. EUFRONIO IBESATE, MRS. TESSIE BALACY, MR.ZOSIMO KARA-AN, and MR. ELEUTERIO LOBITANA,respondents.D E C I S I O NKAPUNAN, J.:

Subject to the instant petition for certiorari under Rule 65 of theRules of Court is the Resolution[1] of public respondent NationalLabor Relations Commission (the ―NLRC‖), rendered on 23January 1996, in NLRC Case No. V-0120-93, entitled ―PastorDionisio V. Austria vs. Central Philippine Union MissionCorporation of Seventh Day Adventists, et. al.,‖ which dismissedthe case for illegal dismissal filed by the petitioner against privaterespondents for lack of jurisdiction.

Private Respondent Central Philippine Union MissionCorporation of the Seventh-Day Adventists (hereinafter referredto as the ―SDA‖) is a religious corporation duly organized andexisting under Philippine law and is represented in this case bythe other private respondents, officers of the SDA. Petitioner, onthe other hand, was a Pastor of the SDA until 31 October 1991,when his services were terminated.

The records show that petitioner Pastor Dionisio V. Austriaworked with the SDA for twenty eight (28) years from 1963 to1991.[2] He began his work with the SDA on 15 July 1963 as aliterature evangelist, selling literature of the SDA over the islandof Negros. From then on, petitioner worked his way up the

ladder and got promoted several times. In January, 1968,petitioner became the Assistant Publishing Director in the WestVisayan Mission of the SDA. In July, 1972, he was elevated to theposition of Pastor in the West Visayan Mission covering theisland of Panay, and the provinces of Romblon and Guimaras.Petitioner held the same position up to 1988. Finally, in 1989,petitioner was promoted as District Pastor of the Negros Missionof the SDA and was assigned at Sagay, Balintawak and Toboso,Negros Occidental, with twelve (12) churches under hisjurisdiction. In January, 1991, petitioner was transferred toBacolod City. He held the position of district pastor until hisservices were terminated on 31 October 1991.

On various occasions from August up to October, 1991, petitioreceived several communications[3] from Mr. Eufronio Ibesatethe treasurer of the Negros Mission asking him to admitaccountability and responsibility for the church tithes andofferings collected by his wife, Mrs. Thelma Austria, in hisdistrict which amounted to P15,078.10, and to remit the same tthe Negros Mission.

In his written explanation dated 11 October 1991,[4] petitionerreasoned out that he should not be made accountable for theunremitted collections since it was private respondents Pastor

Gideon Buhat and Mr. Eufronio Ibesate who authorized his wto collect the tithes and offerings since he was very sick to do tcollecting at that time.

Thereafter, on 16 October 1991, at around 7:30 a.m., petitionerwent to the office of Pastor Buhat, the president of the NegrosMission. During said call, petitioner tried to persuade PastorBuhat to convene the Executive Committee for the purpose ofsettling the dispute between him and the private respondent,Pastor David Rodrigo. The dispute between Pastor Rodrigo apetitioner arose from an incident in which petitioner assisted friend, Danny Diamada, to collect from Pastor Rodrigo the unpbalance for the repair of the latter‘s motor vehicle which he faito pay to Diamada.[5] Due to the assistance of petitioner incollecting Pastor Rodrigo‘s debt, the latter harbored ill-feelingagainst petitioner. When news reached petitioner that PastorRodrigo was about to file a complaint against him with theNegros Mission, he immediately proceeded to the office of PasBuhat on the date abovementioned and asked the latter toconvene the Executive Committee. Pastor Buhat denied therequest of petitioner since some committee members were outtown and there was no quorum. Thereafter, the two exchangeheated arguments. Petitioner then left the office of Pastor BuhWhile on his way out, petitioner overheard Pastor Buhat sayin―Pastor daw inisog na ina iya (Pastor you are talking tough).‖[Irked by such remark, petitioner returned to the office of PastoBuhat, and tried to overturn the latter‘s table, though

unsuccessfully, since it was heavy. Thereafter, petitioner bangthe attache case of Pastor Buhat on the table, scattered the booin his office, and threw the phone.[7] Fortunately, privaterespondents Pastors Yonilo Leopoldo and Claudio Montaño waround and they pacified both Pastor Buhat and petitioner.

On 17 October 1991, petitioner received a letter[8] inviting himand his wife to attend the Executive Committee meeting at thNegros Mission Conference Room on 21 October 1991, at nine the morning. To be discussed in the meeting were the non-remittance of church collection and the events that transpired16 October 1991. A fact-finding committee was created toinvestigate petitioner. For two (2) days, from October 21 and

the fact-finding committee conducted an investigation ofpetitioner. Sensing that the result of the investigation might bone-sided, petitioner immediately wrote Pastor Rueben Moralpresident of the SDA and chairman of the fact-finding commitrequesting that certain members of the fact-finding committeeexcluded in the investigation and resolution of the case.[9] Outhe six (6) members requested to inhibit themselves from theinvestigation and decision-making, only two (2) were actuallyexcluded, namely: Pastor Buhat and Pastor Rodrigo.Subsequently, on 29 October 1991, petitioner received a letter dismissal[10] citing misappropriation of denominational fundswillful breach of trust, serious misconduct, gross and habitualneglect of duties, and commission of an offense against the per



of employer‘s duly authorized representative, as grounds for thetermination of his services.

Reacting against the adverse decision of the SDA, petitioner fileda complaint[11] on 14 November 1991, before the Labor Arbiter forillegal dismissal against the SDA and its officers and prayed forreinstatement with backwages and benefits, moral and exemplarydamages and other labor law benefits.

On 15 February 1993, Labor Arbiter Cesar D. Sideño rendered adecision in favor of petitioner, the dispositive portion of which

reads thus:

WHEREFORE, PREMISES CONSIDERED, respondentsCENTRAL PHILIPPINE UNION MISSION CORPORATION OFTHE SEVENTH-DAY ADVENTISTS (CPUMCSDA) and itsofficers, respondents herein, are hereby ordered to immediatelyreinstate complainant Pastor Dionisio Austria to his formerposition as Pastor of Brgy. Taculing, Progreso and Banago,Bacolod City, without loss of seniority and other rights andbackwages in the amount of ONE HUNDRED FIFTEENTHOUSAND EIGHT HUNDRED THIRTY PESOS (P115,830.00)without deductions and qualificatioons.

Respondent CPUMCSDA is further ordered to pay complainantthe following:

A. 13th month pay - P21,060.00

B. Allowance - P 4,770.83

C. Service IncentiveLeave Pay - P 3,461.85

D. Moral Damages - P50,000.00

E. ExemplaryDamages - P25,000.00

F. Attorney‘s Fee - P22,012.27

SO ORDERED.[12]

The SDA, through its officers, appealed the decision of the LaborArbiter to the National Labor Relations Commission, FourthDivision, Cebu City. In a decision, dated 26 August 1994, theNLRC vacated the findings of the Labor Arbiter. The decretalportion of the NLRC decision states:

WHEREFORE, the Decision appealed from is hereby VACATEDand a new one ENTERED dismissing this case for want of merit.

SO ORDERED.[13]

Petitioner filed a motion for reconsideration of the above-nameddecision. On 18 July 1995, the NLRC issued a Resolutionreversing its original decision. The dispositive portion of theresolution reads:

WHEREFORE, premises considered, Our decision dated August26, 1994 is VACATED and the decision of the Labor Arbiter datedFebruary 15, 1993 is REINSTATED.

SO ORDERED.[14]

In view of the reversal of the original decision of the NLRC, thSDA filed a motion for reconsideration of the above resolutionNotable in the motion for reconsideration filed by privaterespondents is their invocation, for the first time on appeal, ththe Labor Arbiter has no jurisdiction over the complaint filed bpetitioner due to the constitutional provision on the separatiochurch and state since the case allegedly involved andecclesiastical affair to which the State cannot interfere.

The NLRC, without ruling on the merits of the case, reverseditself once again, sustained the argument posed by private

respondents and, accordingly, dismissed the complaint ofpetitioner. The dispositive portion of the NLRC resolution da23 January 1996, subject of the present petition, is as follows:

WHEREFORE, in view of all the foregoing, the instant motionfor reconsideration is hereby granted. Accordingly, this case ihereby DISMISSED for lack of jurisdiction.

SO ORDERED.[15]

Hence, the recourse to this Court by petitioner.

After the filing of the petition, the Court ordered the Office of Solicitor General (the ―OSG‖) to file its comment on behalf ofpublic respondent NLRC. Interestingly, the OSG filed amanifestation and motion in lieu of comment[16] setting forthstand that it cannot sustain the resolution of the NLRC. In itsmanifestation, the OSG submits that the termination ofpetitioner of his employment may be questioned before the NLas the same is secular in nature, not ecclesiastical. After thesubmission of memoranda of all the parties, the case wassubmitted for decision.

The issues to be resolved in this petition are:

1) Whether or not the Labor Arbiter/NLRC has jurisdiction totry and decide the complaint filed by petitioner against the SD

2) Whether or not the termination of the services of petitionean ecclesiastical affair, and, as such, involves the separation ofchurch and state; and

3) Whether or not such termination is valid.

The first two issues shall be resolved jointly, since they arerelated.

Private respondents contend that by virtue of the doctrine ofseparation of church and state, the Labor Arbiter and the NLRhave no jurisdiction to entertain the complaint filed by petitio

Since the matter at bar allegedly involves the discipline of areligious minister, it is to be considered a purely ecclesiasticalaffair to which the State has no right to interfere.

The contention of private respondents deserves scantconsideration. The principle of separation of church and statefinds no application in this case.

The rationale of the principle of the separation of church andstate is summed up in the familiar saying, ―Strong fences makegood neighbors.‖[17] The idea advocated by this principle is todelineate the boundaries between the two institutions and thuavoid encroachments by one against the other because of amisunderstanding of the limits of their respective exclusive



jurisdictions.[18] The demarcation line calls on the entities to―render therefore unto Ceasar the things that are Ceasar‘s andunto God the things that are God‘s.‖[19] While the State isprohibited from interfering in purely ecclesiastical affairs, theChurch is likewise barred from meddling in purely secularmatters.[20]

The case at bar does not concern an ecclesiastical or purelyreligious affair as to bar the State from taking cognizance of thesame. An ecclesiastical affair is ―one that concerns doctrine,creed, or form or worship of the church, or the adoption and

enforcement within a religious association of needful laws andregulations for the government of the membership, and the powerof excluding from such associations those deemed unworthy ofmembership.[21] Based on this definition, an ecclesiastical affairinvolves the relationship between the church and its membersand relate to matters of faith, religious doctrines, worship andgovernance of the congregation. To be concrete, examples of thisso-called ecclesiastical affairs to which the State cannot meddleare proceedings for excommunication, ordinations of religiousministers, administration of sacraments and other activities withwhich attached religious significance. The case at bar does noteven remotely concern any of the abovecited examples. While thematter at hand relates to the church and its religious minister itdoes not ipso facto give the case a religious significance. Simplystated, what is involved here is the relationship of the church asan employer and the minister as an employee. It is purely secularand has no relation whatsoever with the practice of faith, worshipor doctrines of the church. In this case, petitioner was notexcommunicated or expelled from the membership of the SDAbut was terminated from employment. Indeed, the matter ofterminating an employee, which is purely secular in nature, isdifferent from the ecclesiastical act of expelling a member fromthe religious congregation.

As pointed out by the OSG in its memorandum, the groundsinvoked for petitioner‘s dismissal, namely: misappropriation ofdenominational funds, willful breach of trust, serious misconduct,

gross and habitual neglect of duties and commission of an offenseagainst the person of his employer‘s duly authorizerepresentative, are all based on Article 282 of the Labor Codewhich enumerates the just causes for termination ofemployment.[22] By this alone, it is palpable that the reason forpetitioner‘s dismissal from the service is not religious in nature.Coupled with this is the act of the SDA in furnishing NLRC witha copy of petitioner‘s letter of termination. As aptly stated by theOSG, this again is an eloquent admission by private respondentsthat NLRC has jurisdiction over the case. Aside from these, SDAadmitted in a certification[23] issued by its officer, Mr. Ibesate,that petitioner has been its employee for twenty-eight (28) years.SDA even registered petitioner with the Social Security System

(SSS) as its employee. As a matter of fact, the worker‘s records ofpetitioner have been submitted by private respondents as part oftheir exhibits. From all of these it is clear that when the SDAterminated the services of petitioner, it was merely exercising itsmanagement prerogative to fire an employee which it believes tobe unfit for the job. As such, the State, through the Labor Arbiterand the NLRC, has the right to take cognizance of the case and todetermine whether the SDA, as employer, rightfully exercised itsmanagement prerogative to dismiss an employee. This is inconsonance with the mandate of the Constitution to afford fullprotection to labor.

Under the Labor Code, the provision which governs the dismissalof employees, is comprehensive enough to include religious

corporations, such as the SDA, in its coverage. Article 278 of tLabor Code on post-employment states that ―the provisions ofthis Title shall apply to all establishments or undertakings,whether for profit or not.‖ Obviously, the cited article does nomake any exception in favor of a religious corporation. This ismade more evident by the fact that the Rules Implementing thLabor Code, particularly, Section 1, Rule 1, Book VI on theTermination of Employment and Retirement, categoricallyincludes religious institutions in the coverage of the law, to wi

Section 1. Coverage. – This Rule shall apply to all establishmen

and undertakings, whether operated for profit or not, includineducational, medical, charitable and religious institutions andorganizations, in cases of regular employment with the exceptof the Government and its political subdivisions includinggovernment-owned or controlled corporations.[24]

With this clear mandate, the SDA cannot hide behind the manof protection of the doctrine of separation of church and state avoid its responsibilities as an employer under the Labor Code

Finally, as correctly pointed out by petitioner, privaterespondents are estopped from raising the issue of lack of

jurisdiction for the first time on appeal. It is already too late inthe day for private respondents to question the jurisdiction of NLRC and the Labor Arbiter since the SDA had fully participain the trials and hearings of the case from start to finish. TheCourt has already ruled that the active participation of a partyagainst whom the action was brought, coupled with his failurobject to the jurisdiction of the court or quasi-judicial bodywhere the action is pending, is tantamount to an invocation ofthat jurisdiction and a willingness to abide by the resolution othe case and will bar said party from later on impugning the coor body‘s jurisdiction.[25] Thus, the active participation ofprivate respondents in the proceedings before the Labor Arbitand the NLRC mooted the question on jurisdiction.

The jurisdictional question now settled, we shall now proceed

determine whether the dismissal of petitioner was valid.

At the outset, we note that as a general rule, findings of fact ofadministrative bodies like the NLRC are binding upon this CoA review of such findings is justified, however, in instances whthe findings of the NLRC differ from those of the labor arbiterin this case.[26] When the findings of NLRC do not agree withthose of the Labor Arbiter, this Court must of necessity reviewthe records to determine which findings should be preferred amore comformable to the evidentiary facts.[27]

We turn now to the crux of the matter. In termination cases, settled rule is that the burden of proving that the termination

for a valid or authorized cause rests on the employer.[28] Thusprivate respondents must not merely rely on the weaknesses opetitioner‘s evidence but must stand on the merits of their owndefense.

The issue being the legality of petitioner‘s dismissal, the samemust be measured against the requisites for a valid dismissal,namely: (a) the employee must be afforded due process, i.e., hemust be given an opportunity to be heard and to defend himseand; (b) the dismissal must be for a valid cause as provided inArticle 282 of the Labor Code.[29] Without the concurrence othis twin requirements, the termination would, in the eyes of tlaw, be illegal.[30]



Before the services of an employee can be validly terminated,Article 277 (b) of the Labor Code and Section 2, Rule XXIII, BookV of the Rules Implementing the Labor Code further require theemployer to furnish the employee with two (2) written notices,to wit: (a) a written notice served on the employee specifying theground or grounds for termination, and giving to said employeereasonable opportunity within which to explain his side; and, (b)a written notice of termination served on the employee indicatingthat upon due consideration of all the circumstances, groundshave been established to justify his termination.

The first notice, which may be considered as the proper charge,serves to apprise the employee of the particular acts or omissionsfor which his dismissal is sought.[31] The second notice on theother hand seeks to inform the employee of the employer‘sdecision to dismiss him.[32] This decision, however, must comeonly after the employee is given a reasonable period from receiptof the first notice within which to answer the charge and ampleopportunity to be heard and defend himself with the assistance ofa representative, if he so desires.[33] This is in consonance withthe express provision of the law on the protection to labor andthe broader dictates of procedural due process.[34] Non-compliance therewith is fatal because these requirements areconditions sine quo non before dismissal may be validlyeffected.[35]

Private respondent failed to substantially comply with the aboverequirements. With regard to the first notice, the letter,[36]dated 17 October 1991, which notified petitioner and his wife toattend the meeting on 21 October 1991, cannot be construed as thewritten charge required by law. A perusal of the said letterreveals that it never categorically stated the particular acts oromissions on which petitioner‘s impending termination wasgrounded. In fact, the letter never even mentioned that petitionerwould be subject to investigation. The letter merely mentionedthat petitioner and his wife were invited to a meeting whereinwhat would be discussed were the alleged unremitted churchtithes and the events that transpired on 16 October 1991. Thus,

petitioner was surprised to find out that the alleged meetingturned out to be an investigation. From the tenor of the letter, itcannot be presumed that petitioner was actually on the verge ofdismissal. The alleged grounds for the dismissal of petitionerfrom the service were only revealed to him when the actual letterof dismissal was finally issued. For this reason, it cannot be saidthat petitioner was given enough opportunity to properly preparefor his defense. While admittedly, private respondents compliedwith the second requirement, the notice of termination, this doesnot cure the initial defect of lack of the proper written chargerequired by law.

In the letter of termination,[37] dated 29 October 1991, private

respondents enumerated the following as grounds for thedismissal of petitioner, namely: misappropriation ofdenominational funds, willful breach of trust, serious misconduct,gross and habitual neglect of duties, and commission of an offenseagainst the person of employer‘s duly authorized representative.Breach of trust and misappropriation of denominational fundsrefer to the alleged failure of petitioner to remit to the treasurer ofthe Negros Mission tithes, collections and offerings amounting toP15,078.10 which were collected by his wife, Mrs. Thelma Austria,in the churches under his jurisdiction. On the other hand, seriousmisconduct and commission of an offense against the person ofthe employer‘s duly authorized representative pertain to the 16October 1991 incident wherein petitioner allegedly committed anact of violence in the office of Pastor Gideon Buhat. The final

ground invoked by private respondents is gross and habitualneglect of duties allegedly committed by petitioner.

We cannot sustain the validity of dismissal based on the grounof breach of trust. Private respondents allege that they have lotheir confidence in petitioner for his failure, despite demands, remit the tithes and offerings amounting to P15,078.10, whichwere collected in his district. A careful study of the voluminourecords of the case reveals that there is simply no basis for thealleged loss of confidence and breach of trust. Settled is the ruthat under Article 282 (c) of the Labor Code, the breach of tru

must be willful. A breach is willful if it is done intentionally,knowingly and purposely, without justifiable excuse, asdistinguished from an act done carelessly, thoughtlessly,heedlessly or inadvertently.[38] It must rest on substantialgrounds and not on the employer‘s arbitrariness, whims, caprior suspicion; otherwise, the employee would eternally remain the mercy of the employer.[39] It should be genuine and notsimulated.[40] This ground has never been intended to afford occasion for abuse, because of its subjective nature. The recorshow that there were only six (6) instances when petitionerpersonally collected and received from the church treasurers thtithes, collections, and donations for the church.[41] Thestenographic notes on the testimony of Naomi Geniebla, theNegros Mission Church Auditor and a witness for privaterespondents, show that Pastor Austria was able to remit all hicollections to the treasurer of the Negros Mission.[42]

Though private respondents were able to establish that petitiocollected and received tithes and donations several times, theywere not able to establish that petitioner failed to remit the sato the Negros Mission, and that he pocketed the amount and uit for his personal purpose. In fact, as admitted by their ownwitness, Naomi Geniebla, petitioner remitted the amounts whhe collected to the Negros Mission for which correspondingreceipts were issued to him. Thus, the allegations of privaterespondents that petitioner breached their trust have no leg tostand on.

In a vain attempt to support their claim of breach of trust, privrespondents try to pin on petitioner the alleged non-remittancthe tithes collected by his wife. This argument deserves littleconsideration. First of all, as proven by convincing andsubstantial evidence consisting of the testimonies of thewitnesses for private respondents who are church treasurers, iwas Mrs. Thelma Austria who actually collected the tithes anddonations from them, and, who failed to remit the same to thetreasurer of the Negros Mission. The testimony of these churctreasurers were corroborated and confirmed by Ms. Geniebla aMr. Ibesate, officers of the SDA. Hence, in the absence ofconspiracy and collusion, which private respondents failed to

demonstrate, between petitioner and his wife, petitioner cannbe made accountable for the alleged infraction committed by hwife. After all, they still have separate and distinct personalitiFor this reason, the Labor Arbiter found it difficult to see thebasis for the alleged loss of confidence and breach of trust. ThCourt does not find any cogent reason, therefore, to digress frothe findings of the Labor Arbiter which is fully supported by tevidence on record.

With respect to the grounds of serious misconduct andcommission of an offense against the person of the employer‘sduly authorized representative, we find the same unmeritoriouand, as such, do not warrant petitioner‘s dismissal from theservice.



Misconduct has been defined as improper or wrong conduct. It isthe transgression of some established and definite rule of action, aforbidden act, a dereliction of duty, willful in character, andimplies wrongful intent and not mere error in judgment.[43] Formisconduct to be considered serious it must be of such grave andaggravated character and not merely trivial or unimportant.[44]Based on this standard, we believe that the act of petitioner inbanging the attache case on the table, throwing the telephone andscattering the books in the office of Pastor Buhat, althoughimproper, cannot be considered as grave enough to be considered

as serious misconduct. After all, as correctly observed by theLabor Arbiter, though petitioner committed damage to property,he did not physically assault Pastor Buhat or any other pastorpresent during the incident of 16 October 1991. In fact, the allegedoffense committed upon the person of the employer‘srepresentatives was never really established or proven by privaterespondents. Hence, there is no basis for the allegation thatpetitioner‘s act constituted serious misconduct or that the samewas an offense against the person of the employer‘s dulyauthorized representative. As such, the cited actuation ofpetitioner does not justify the ultimate penalty of dismissal fromemployment. While the Constitution does not condonewrongdoing by the employee, it nevertheless urges a moderationof the sanctions that may be applied to him in light of the manydisadvantages that weigh heavily on him like an albatross on hisneck.[45] Where a penalty less punitive would suffice, whatevermissteps may have been committed by the worker ought not bevisited with a consequence so severe such as dismissal fromemployment.[46] For the foregoing reasons, we believe that theminor infraction committed by petitioner does not merit theultimate penalty of dismissal.

The final ground alleged by private respondents in terminatingpetitioner, gross and habitual neglect of duties, does not requiresan exhaustive discussion. Suffice it to say that all privaterespondents had were allegations but not proof. Aside frommerely citing the said ground, private respondents failed to prove

culpability on the part of petitioner. In fact, the evidence onrecord shows otherwise. Petitioner‘s rise from the ranks disclosethat he was actually a hard-worker. Private respondents‘evidence,[47] which consisted of petitioner‘s Worker‘s Reports,revealed how petitioner travelled to different churches to attendto the faithful under his care. Indeed, he labored hard for theSDA, but, in return, he was rewarded with a dismissal from theservice for a non-existent cause.

In view of the foregoing, we sustain the finding of the LaborArbiter that petitioner was terminated from service without justor lawful cause. Having been illegally dismissed, petitioner isentitled to reinstatement to his former position without loss of

seniority right[48] and the payment of full backwages withoutany deduction corresponding to the period from his illegaldismissal up to actual reinstatement.[49]

WHEREFORE, the petition for certiorari is GRANTED. Thechallenged Resolution of public respondent National LaborRelations Commission, rendered on 23 January 1996, isNULLIFIED and SET ASIDE. The Decision of the Labor Arbiter,dated 15 February 1993, is reinstated and hereby AFFIRMED.

Estrada vs. Escritor , 492 SCRA 1 ; 22 JUN 2006FACTS: Escritor is a court interpreter since 1999 in the RTC ofLas Pinas City. She has been living with Quilapio, a man who isnot her husband, for more than twenty five years and had a son

with him as well. Respondent‘s husband died a year before sheentered into the judiciary while Quilapio is still legally marriedanother woman.

Complainant Estrada requested the Judge of said RTC toinvestigate respondent. According to complainant, respondentshould not be allowed to remain employed therein for it willappear as if the court allows such act.

Respondent claims that their conjugal arrangement is permittby her religion—the Jehovah‘s Witnesses and the Watch Tow

and the Bible Trace Society. They allegedly have a ‗DeclarationPledging Faithfulness‘ under the approval of their congregatioSuch a declaration is effective when legal impediments render impossible for a couple to legalize their union.

ISSUE: Whether or Not the State could penalize respondent fsuch conjugal arrangement.

RULING: No. The State could not penalize respondent for sheexercising her right to freedom of religion. The free exercise ofreligion is specifically articulated as one of the fundamental rigin our Constitution. As Jefferson put it, it is the most inalienaband sacred of human rights. The State‘s interest in enforcing itprohibition cannot be merely abstract or symbolic in order to bsufficiently compelling to outweigh a free exercise claim. In thcase at bar, the State has not evinced any concrete interest inenforcing the concubinage or bigamy charges against respondeor her partner. Thus the State‘s interest only amounts to thesymbolic preservation of an unenforced prohibition.

Furthermore, a distinction between public and secular moralitand religious morality should be kept in mind. The jurisdictionthe Court extends only to public and secular morality.

The Court further states that our Constitution adheres thebenevolent neutrality approach that gives room for

accommodation of religious exercises as required by the FreeExercise Clause. This benevolent neutrality could allow foraccommodation of morality based on religion, provided it doesnot offend compelling state interests. Assuming arguendo thatthe OSG has proved a compelling state interest, it has to furthdemonstrate that the state has used the least intrusive meanspossible so that the free exercise is not infringed any more thannecessary to achieve the legitimate goal of the state. Thus theconjugal arrangement cannot be penalized for it constitutes anexemption to the law based on her right to freedom of religion

A.M. No. MTJ-92-691 September 10, 1993

SULU ISLAMIC ASSOCIATION OF MASJID LAMBAYONG,complainant,vs.

JUDGE NABDAR J. MALIK, Municipal Trial Court, Jolo, Sulurespondent.

PER CURIAM:

On June 5, 1992, Imam Hashim Abdulla, Imam Hadji TambingHatib Illih Musa, an officers and members of the Sulu IslamicAssociation of Masjid Lambayong, filed an administrativecomplaint against Judge Nabdar J. Malik, Presiding Judge of th



Municipal Trial Court in Jolo, Sulu, charging him with violationof R.A. 2260 (An Act to Amend and Revise the Laws Relative toPhilippine Civil Service) and serious misconduct committed asfollows:

1. Nepotism — by recommending the appointment ofOmar Kalim, his nephew, and Hanina Kalim, his niece-in-law, asprocess server and clerk, respectively;

2. Graft and Corruption — by using Omar Kalim to extortmoney from court litigants, e.g.:

a. P13,000.00 in exchange for the freedom of Datu TatingErwin, who had been charged an accessory in a robbery case;

b. demanding P10,000.00 thru a certain P/Sgt. Duran AbamTating, Erwin's brother-in-law; and

c. blackmailing litigants;

3. Immorality — engaging in an adulterous relationshipwith another woman with whom he has three children.

In his letter/comment dated October 19, 1992, Judge Malik allegedthat the complainants are fictitious persons and that the chargesagainst him are false and fabricated. He asked that the complaintbe dismissed.

The Supreme Court referred the case to Judge Harun Ismael ofthe Regional Trial Court of Jolo, Sulu, for investigation report andrecommendation.

On April 7, 1993, Judge Malik addressed a letter to Judge Ismael,enclosing affidavits of four witnesses, namely : (1) Imam HashimAbdulla; (2) Mrs. Jamura Tambing; (3) Mr. Mirad Tambing; and(4) Marina Balais Malik.

He alleged that Datu Tating Erwin is the nephew of Kaya B.

Sarabi who had previously filed "many fabricated charges" (p. 235,Rollo) against him which had been dismissed by the SupremeCourt. He implied that Erwin was being used by Sarabi, and thatthe affidavit was false.

Imam Hashim Abdulla, one of the "complainants," denied anyknowledge of, or participation in, the filing of the complaintagainst Judge Malik. He disowned his supposed signature in thecomplaint as a forgery. He alleged that Judge Malik is hisneighbor and he knows him to be "honest and righteous" (p. 238,Rollo).

Illih Musad, another "complainant," died on February 24, 1991 yet.

His widow, Jamura Musad, executed an affidavit certifying thatshe knows Judge Malik personally because he has been herneighbor for many years. It was physically impossible for her latehusband to have signed the complaint dated June 5, 1992 againstJudge Malik because her husband died more than a year beforethe signing of the complaint.

The signature of another complainant, Imam Hadji TambingArong, was impugned by his son, Mirad Tambing. He said hisfather could not have signed the complaint because he had beensick and bedridden for five years before his death. In fact, he diedon August 15, 1992.

Marina Balais Malik, wife of respondent Judge N. Malik,disowned her supposed affidavit which she supposedly signedbefore Notary Public Attorney Rodrigo Martinez in ZamboangCity, in February 1991 (p. 250, Rollo).

She, however, denied having appeared before the Notary Publisubscribe said affidavit which attacks the "honor and integrityher beloved husband" (p. 251, Rollo).

After conducting an investigation of the charges, Judge IsmaelMay 25, 1993, submitted a Report to the court. Of the three (3)

charges against Judge Malik, only the charge or nepotism hold

On the charge or graft and corruption, Judge Ismael observedthat:

. . . practically all of those who testified denied any knowledgeany particular instance that Judge Malik extorted or receivedbribe money from litigants having pending cases before his salMrs. Beatriz Abbas, Clerk of Court II of Municipal Trial Court

Jolo, Sulu presided by Judge Malik, testified that the peoplepraised highly Judge Malik because of his honesty. She atteststhis because she was, at one time told by Judge Malik to returnlitigants something which litigants wanted to give to JudgeMalik. However, one of those who testified confided, but refusto be quoted in his testimony for fear of reprisal, suggested thaorder for the Court to be spared of any ill suspicion, Omar Kalshould be transferred to another Municipal Circuit Trial Courbranch where Judge Malik has no supervision. Accordingly, it

just not nice and good looking to have Omar Kalim where he inow. This information is worth considering. The only obstacle

Judge Malik is Acting Judge in all Municipal Circuit Trial Coubranches except Siasi, Sulu. However, no hard evidence wasadduced linking Judge Malik to graft and corruption as allegedthe complaint. (p. 51, Rollo.)

With regard to the charge of adultery or immorality, theinvestigating Judge observed that under Muslim Law the

marriage of a Tausug (the tribal group to which Judge Malikbelongs) to as many as four (4) wives in sanctioned provided tman can support them and does not neglect any or them. JudgIsmael's report states:

As regards the claim that Judge Malik has two (2) wives, all thwho testified at the investigations confirmed the same. Mrs.Marina Balais-Malik, the first wife, admitted that Judge Malikhas a second wife (Lourdes) but she does not mind them sinceand her children are financially taken cared of — all their eighchildren are going to school and three (3) have reached collegelevel. Moreover, under the Muslim Shari'a (Law) marrying mothan one wife is allowed provided the man can afford financial

and can give equity and justice to the wives. Mrs. Marina BalaiMalik claims that Judge Malik is financially capable.

The Holy Qur'an (the Muslim Holy Scripture) provides in Sur4:3 (Chapter 4, verse 3) thus:

3. And if ye fear that ye shall not.Be able to deal justlyWith the orphans,Marry women of your choiceTwo, or three, or four;But if, ye fear that ye shall notBe able to deal justly (with them)The only one, or



That which your right hand possessThat will be more suitable,To prevent youFrom doing injustice.

Strictly, Islam enjoins only monogamous marriage. While Islamallows marrying more than one wife, it however sets limitation,i.e., not more than four at a time and the man be financiallycapable in order for him to provide equity and justice to thewives. Theme revelations came to the Prophet Muhammad afterthe Battle of Uhud whereby many Mujahideens died thus leaving

more widows and orphans. This particular revelation serve, as itwas then, as a remedy to the impending situation of the widowsand orphans left unattended. By allowing the mujahideens to takethem in marriage helped prevent them from engaging in illicitmarital relations like fornication. Marrying more than one wifedoes not per se create any stint (sic) of social immorality, sincethis marriage, like any other ordinary marriages, is made publicand are (sic) accepted by the people in the community. Any issueout of this marriage is legitimate before the eyes of the AlmightyLord and the people.

True, Islam sanctions such marriage but very few Muslim malespractice it. Worst yet today, however, this permissible marriage isused as a means of building social standing in the community. Asa judge, there is no doubt that Judge Malik has acquired higherrespect and social standing in the community, and is deemedfinancially capable. Hence, he can marry more than one wife inaccordance with the Muslim Shari'a. (pp. 49-50, Rollo.)

Mrs. Marina Malik consented to her husband's wish to contract,a second marriage because he does not neglect to support herchildren. Three of them are in college. She has no ill-feelingsagainst Malik's second wife, who married her husband underMuslim law. Since Art. 180 of P.D. No. 1083, otherwise known asthe Code of Muslim Personal laws of the Philippines, providesthat the penal laws relative to the crime of bigamy "shall notapply to a person married . . . under Muslim Law," it is not

"immoral" by Muslim standards for Judge Malik to marry a secondtime while his first marriage exists.

The charge of nepotism, however, is a different matter.

Judge Nabdar Malik was appointed and confirmed as Judge ofMunicipal Court of Jolo on May 29, 1972. He assumed office onMay 29, 1972. 1 On June 16, 1978, he recommended theappointment of his nephew, Omar Kalim, the son of his oldersister, Nuridjan Ambutong, to the position of Janitor of his court.He falsely certified that Kalim was not related to him by affinityor consanguinity within the third degree:

This is to certify that Mr. Omar Kalim, a proposed appointee forthe position of Janitor in the Municipal Court of Jolo, Branch 1, isnot related to the undersigned within the third degree either byaffinity or consanguinity.

xxx xxx xxx

NABDAR J. MALIKMunicipal Judge(Certification dated June 16, 1978, 201 File.)

The truth is that, being his sister's son, Kalim is related to JudgeMalik by consanguinity within the third degree.

Later, Omar Kalim was promoted an MTC Aide and still later,1985, he became a Process Server. 2 In support of Kalim'spromotion, Judge Malik again issued a false certification thatKalim in not related to him by affinity or consanguinity.

This is to certify that MR. OMAR N. KALIM, a proposedappointee for the position of MTC PROCESS SERVER in theOffice of the Municipal Trial Court of Jolo, is not related to theundersigned appointed official either by affinity or consanguin(Certification dated January 2, 1985, 201 File.)

Similarly, Kalim falsely denied his relationship to Judge Malikanswer to question No. 23 in his Personal Data Sheet.

Are you related within the third degree of consanguinity or ofaffinity to the appointing or recommending authority, or to thchief of bureau or office, or to the person who has immediatesupervision over you in the Office, Bureau or Ministry you are be appointed?

His answer was "No".

The prohibition against nepotism in the government service isfound in Section 59, Chapter 7, Book V of the AdministrativeCode of 1987 which reads:

Sec. 59. Nepotism. — (1) All appointments in the national,provincial, city and municipal governments or in any branch oinstrumentality thereof, including government-owned orcontrolled corporations, made in favor of a relative of theappointing or recommending authority, or of the chief of thebureau or office, or of the persons exercising immediatesupervision over him, are hereby prohibited.

As used in this Section, the word "relative" and members of thefamily referred to are those related within the third degree eithof consanguinity or of affinity.

(2) The following are exempted from the operation of therules on nepotism: (a) persons employed in a confidentialcapacity, (b) teachers, (c) physicians, and (d) members of theArmed Forces of the Philippines: Provided, however, That in eparticular instance full report of such appointment shall be mato the Commission.

The restriction mentioned in subsection (1) shall not beapplicable to the case of a member of any family who, after hisher appointment to any position in an office or bureau, contracmarriage with someone in the same office or bureau, in whichevent the employment or retention therein of both husband anwife may be allowed.

(3) In order to give immediate effect to these provisions,cases of previous appointments which are in contravention heshall be corrected by transfer, and pending such transfer, nopromotion or salary increase shall be allowed in favor of therelative or relatives who were appointed in violation of theseprovisions.

In the case of Layno vs. People (213 SCRA 686, 696-697), theincumbent Mayor, of Lianga, Surigao, appointed his legitimateson as Meat Inspector, but certified that the appointee was norelative by consanguinity or affinity. He was prosecutedcriminally and punished for falsification of public document (A171, par. 4 or the RPC).



One of the legal issues raised was whether the appointingauthority is obliged to disclose his true relationship to theappointee., That question was answered by this Court in theaffirmative:

The law on nepotism, as provided in Section 49(a) or PD No. 807,prohibits the appointing or recommending authority frommaking any appointment in the national, provincial, city ormunicipal governments or in any branch or instrumentalitythereof, including government-owned or controlled corporations,

in favor of his (appointing or recommending authority's) relativewithin the third degree of consanguinity or affinity. Thus, inorder to guarantee that the law is duly observed, it is required,among others, that the appointment paper should beaccompanied by a certification of the appointing orrecommending authority stating therein that he is not related tothe appointee within the third degree of consanguinity or affinity.Although Section 49(a) or PD No. 807 does not explicitly providethat the appointing or, recommending authority shall, disclose histrue relationship with the appointee in the form or a certification,nonetheless, in the light of the rulings in the aforecited cases, thelegal obligation or the appointing or recommending authority tostate the true facts required to be stated in the certification isinherent in the law on prohibition against nepotism and thenature and purpose of such certification.

xxx xxx xxx

. . . As aptly observed by the Solicitor General in hisMemorandum —

The general purpose of P.D. No. 807 is to "insure and promote theconstitutional mandate that appointments in the Civil Serviceshall be made only according to merit and fitness, to providewithin the public service a progressive system of personneladministration, and to adopt measures to promote moral and thehighest degree of responsibility, integrity, loyalty, efficiency, and

professionalism in the Civil Service." (Section 2, PD No. 807.)

The civil service laws are designed to eradicate the system ofappointment to public office base on political considerations andto eliminate as far as practicable the element of partisanship andpersonal favoritism in making appointments. These laws intendto establish a merit system of fitness and efficiency as the basis ofthe appointment; to secure more competent employees, andthereby promote better government. (Meran vs. Edralin, 154SCRA 238 [1987])..

Indeed, there are many cases wherein local elective officials, uponassumption to office, wield their new-found power by appointing

their own protegees, and even relatives, in violation of civilservice laws and regulations. Victory, at the polls should not betaken as authority for the commission of such illegal acts.(Mendoza vs. Quisumbing, G.R. No. 78053, June 4, 1990, citingNemenzo vs. Sabillano, 26 SCRA 1 [1968]).

By making untruthful statements and certifications regardingtheir relationship to each other, Judge Malik and his nephew,Omar Kalim, committed the crime of falsification under Article171, subparagraph 4 of the Revised Penal Code.

Nepotism is a ground for disciplinary action under Section 46,subpar. 30, Chapter 5, Book V of the Administrative Code of 1987:

Sec. 46. Discipline: General Provisions. — (a) No officer oremployee in the Civil Service shall be suspended or dismissedexcept for cause an provided by law and after due process.

(b) The following shall be grounds for disciplinary action

xxx xxx xxx

(30) Nepotism as defined in Section 59 of this Title.

Section 67 (Penal Provision) of the Administrative Code provi

the following penalty therefor:

Sec. 67. Penal Provision. — Whoever makes any appointmentemploys any person in violation of any provision of this Title othe rules made thereunder or whoever commits fraud, deceit ointentional misrepresentation of material facts concerning othcivil service matters, or whoever violates, refuses or neglects tocomply with any of such provisions or rules, shall uponconviction be punished by a fine not exceeding one thousandpesos or by imprisonment not exceeding six (6) months, or bosuch fine and imprisonment in the discretion of the court.(Executive Order 292, Emphasis ours.)

Disclosure of one's relatives in the Government is required ofevery public official or employee:

Sec. 8. . . .

(B) Identification and disclosure of relatives. — It shall bthe duty of every public official or employee to identify anddisclose, to the best of his knowledge and information, hisrelatives in the Government in the form, manner and frequencprescribed by the Civil service Commission. (Sec. 8 (B), Rep. A6713 [Code of Conduct and Ethical Standards for Public Officiand Employees].)

Judge Malik did not merely fail to disclose his relationship to

Omar Kalim, but he falsely certified that he was not related tolatter.

Kalim, likewise, falsely denied his relationship to Judge MalikTheir acts violated the Code of Conduct and Ethical Standardfor Public Officials and Employees and are punishable underSection 11 of the Code, with removal from office.

Sec. 11. Penalties. — (a) Any public official or employee,regardless of whether or not he holds office or employment in casual, temporary, holdover, permanent or regular capacity,committing any violation of this Act shall be punished with a fnot exceeding the equivalent of six (6) months' salary or

suspension not exceeding one (1) year, or removal depending othe gravity of the offense after due notice and hearing by theappropriate body or agency. If the violation is punishable by aheavier penalty under another law, he shall be prosecuted undthe latter statute. Violations of Sections 7, 8 or 9 of this Act shbe punishable with imprisonment not exceeding five (5) yearsa fine not exceeding five thousand pesos (P5,000.00), or both,and, in the discretion of the court of competent jurisdiction,disqualification to hold public office.

(b) Any violation hereof proven in a proper administrativproceeding shall be sufficient cause for removal or dismissal ofpublic official or employee, even if no criminal prosecution isinstituted against him. (Emphasis supplied.)



Section 23, Rule XIV of the Omnibus Rules Implementing Book Vof Executive Order No. 292 and Other Pertinent Civil ServiceLaws, classifies nepotism as a grave offense punishable withdismissal from the service, even as a first offense.

Sec. 23. Administrative offenses with its corresponding penaltiesare classified into grave, less grave, and light, depending on thegravity of its nature and effects of said acts on the governmentservice.

The following are grave offenses with its corresponding penalties:

xxx xxx xxx

(m) Nepotism [1st Offense, Dismissal]

Moreover, by committing nepotism and covering up hismalfeasance by falsely disavowing any relationship to theappointee, Judge Malik is also guilty of gross ignorance of the lawand falsification and violated the Code of Judicial Conduct, whichrequires that "a judge shall not allow family, social, or otherrelationship to influence his judicial conduct or judgment"(Canon 2, Rule 2.03) and enjoins a judge to "be faithful to the law"(Canon 3, Rule 3.01). Violations of the Code of Judicial Conductare serious offenses punishable by any of the following sanctionsunder Section 10-A, Rule 140 of the Rules of Court, as amended:

1. Dismissal from the service with forfeiture of benefits(except accrued leaves) and disqualification from reinstatementor appointment to any public office including a government-owned or controlled corporation;

2. Suspension for three (3) to six (6) months withoutsalary and benefits; or

3. A fine of not less than P20,000.00 but not more thanP40,000.00.

With respect to Judge Malik's niece-in-law, Hanina M. HailidaniKalim, her appointment did not violate the law against nepotism.

Hanina began her service in the judiciary on August 6, 1973. Shewas then known as "Mrs. Hanina M. Hailidani-Ainin," for she wasmarried to Hadji Abubakar Ainin, clerk of the Municipal Court,Branch 1. Omar Kalim entered the service in 1978 or five yearsafter Hanina. She was already a widow when she and Kalim metand married in a ceremony performed by Judge N. Malik on July24, 1982. Evidently, when Hanina was appointed as a member ofJudge Malik's staff in 1973, she was not yet related to him byaffinity or consanguinity. Her marriage to Omar Kalim after both

had entered the government service is expressly excluded fromthe prohibition against nepotism. Section 59 of theAdministrative Code of 1987 provides that:

Sec. 59. . . .

(2) . . . "The restriction mentioned in subsection (1) shall notbe applicable to the case of a member of a family who, after his orher appointment to any position in an office or bureau, contractsmarriage with someone in the same office or bureau, in whichevent the employment or retention therein of both husband andwife may be allowed.

WHEREFORE, the Court finds Judge Nabdar J. Malik GUILTof nepotism, falsification and violation of the Code of JudicialConduct. His Process Server and nephew, Omar Kalim, islikewise found GUILTY of falsification and deceit. The Courthereby orders their DISMISSAL from the service, with prejudito re-employment in the government, including government-owned or controlled corporations, with forfeiture of allretirement benefits and privileges (if any), except the moneyvalue of their earned leave credits. Respondent Judge isORDERED to cease and desist immediately from rendering anorder or decision, or continuing any proceedings, in any case

whatsoever, effective immediately upon receipt of a copy of thResolution.

SO ORDERED.

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